The present appeal is directed against the judgment dated 24-9-1985, whereby Muhammad Hussain Bhatti, Sessions Judge, Sheikhupura, convicted the appellant under section 16 of the Pakistan Arms Ordinance, 1965 and sentenced him to one year R.I. And ordered the confiscation of gun Exh. P.1.
2. The brief facts of the case are that the gun in question Exh. P.1. Was recovered by the Police during the investigation of a case registered vide F.I.R. No.136 dated 30-6-1983 under section 302/307/201/379/148/149, P.P.C. At Police Station Narang, District Sheikhupura. According to the present F.I.R. Exh. P.A. Formally recorded by Safarish Hussain Shah A.S.I. On the written complaint Exh.PA./1 submitted by Muhammad Rafique A.S.I. P.W.3, who was investigating the case of murder etc. Stated above. According to the prosecution version, on recovery of the gun in question the police was informed that it belonged to appellant herein, who had given it to one of the accused, namely Muhammad Ramzan in the case under investigation.
3. The appellant/accused was charged under section 16 of the Pakistan Arms Ordinance, 1965 as stated above. The appellant denied the charge. To prove its case the prosecution produced three P.Ws. In all. P.W.1 Safarish Hussain Shah deposed that he had recorded the formal F.I.R. Exh. P.A. On the written complaint, Exh.P.A./1, of Muhammad Rafique, A.S.I. P.W.3. The said P.W.3, Muhammad Rafique A.S.I., had deposed that he had drafted the said complaint Exh.P.A./1, and that he had recovered the gun in question i.e. Exh. P.1 vide memo Exh. P.B., which was duly attested by him and P.W.2 Muhammad Aslam and by another witness who was not produced. P.W.2 Muhammad Aslam testified to the effect that he had been associated with the investigation of the case in which .12 bore gun Exh. P.1 was recovered from the possession of Muhammad Ramzan, and that one of the accused in the murder case under investigation, namely Muhammad Ramzan, had led to the recovery of the said gun.
The learned counsel for the appellant, at the very outset, pointed out that the instant case falls under the provisions of subsection (b) of section 16 of the Pakistan Arms Ordinance, 1965, which reads as follows:-- "16. Whoever:-- (b)delivers any arms, ammunition or military stores into the possession of any person without previously ascertaining that such person is legally authorised to possess the same;"
Further contended that under the provisions of the said subsection, the delivery in the instant case that of the gun Exh. P.1, is an essential requirement to establish the charge against the appellant/accused and, in this respect, further pointed out, that it is not the case of the prosecution itself that the appellant had delivered the gun in question to the accused, in the above-stated case of murder, namely Muhammad Ramzan, therefore, argued that even if the prosecution charge is accepted in toto, it does not disclose the commission of any offence by the appellant. In this respect, strength was sought from Hassan Khan-y. The State PLD 1967 Pesh. 103, wherein it was held as follows:-- "Accused must be proved to have voluntarily delivered arms or allowed its use by another:"
5. Further submitted that mandatory provisions of section 103, Cr.P.C. Had not been complied with, and as such the recovery alleged cannot be used against the appellant. In this respect, further submitted, that no responsible person of the locality was associated with the alleged search and recovery of the gun Exh.P.1, and further pointed out that the only witness from the public namely P.W.2 Muhammad Aslam was from a village Jay-Singhwala and not from the village Mehta Sooja, from where the alleged recovery is stated to have taken place. To support his contentions, placed reliance upon Muhammad Khan v. Dost Muhammad and 17 others PLD 1975 SC 607, wherein it was held that the provisions of section 103 Cr.P.C. Are mandatory but when not complied with the search does not become illegal, however, the non-compliance would be viewed with suspicion unless failure to secure presence of respectable witnesses or to examine them in Court is sufficiently explained. In this respect, further pointed out, that neither any explanation for non- associating the witnesses as required under the provisions of section 103 Cr.P.C. Has been stated by the prosecution, and that if the testimony of P.W.2 is discarded, then, the present case becomes one of no evidence. In this respect further reliance was placed on Abdul Hameed v. The State 1987 P Cr. L J 1707, wherein it was held that the search under section 103 Cr.P.C. Is mandatory and the person of the locality is necessary to witness the recovery but when the provisions are not complied with the recovery is not relied upon. It was further submitted that Sultan and others v. The State 1987 SCMR 1177 is to the same effect.
6. The learned counsel for the appellant, further elaborating his submissions, pointed out that P.W.3 Muhammad Rafique A.S.I., had clearly admitted that no one from the village of occurrence had been associated with the search and recovery of the gun Exh.P.1. Further pointed out that P.W.2 Muhammad Aslam had conceded during his cross-examination that the accused in the murder case, who had led to the recovery of the gun was never asked as to the ownership of the gun in question, and had further conceded that he himself did not know that the present appellant was licence-holder of the said gun Exh.P.1.
7. The contentions raised on behalf of the appellant and stated above could not be controverted on behalf of the State. Therefore, accepting the same and placing reliance upon the authorities cited by the learned counsel, in support thereof, the present appeal is allowed and the appellant is hereby acquitted of the charge. The gun Exh.P.1 may be returned to its lawful owner in accordance with law. The appellant is on bail his bail bonds stand discharged.