QAISER AHMED HAMIDI, J.--- Appellant Afzal Haider was tried by Mr. Waj shat Hussain Siddiqui, Judge, Special Court II (Suppression of Terrorist Activities) Karachi for the offence under section 5 of the Explosive Substances Act, 1908, and section 13(E) of the Arms Ordinance, 1965, who found him guilty for the said offence and vide judgment, dated 27-2-1990 sentenced him to suffer R.I. For five years on the first charge and to suffer R.I. For seven years on the second charge. Both the sentences were ordered to run concurrently. By this appeal filed under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the appellant has challenged his conviction and sentence.
2. The facts of the ease are simple and may be briefly summed up. During the course of investigation in Crime No.65 of 1987, Artillery Maidan Police Station, under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, Arshad Kama] Kayani S.H.O.
Artillery Maidan Police Station interrogated the appellant who on 20-2-1987 at 12-30 a.m. Led the Police Officer, Mashirs Munawwar and Aqil Muneer to Room No.202 of Y.M.C.A. Hostel, Karachi, where he was staying and produced one brief case containing one hand grenade, two sub-machine guns, one sten gun, live bullets and other articles which were seized under a Mashirnama prepared in presence of above Mashirs. On return to police station Arshad Kamal Kayani, S.H.O. Lodged F.I.R.
Against the appellant (Crime No.73 of 1987) Artillery Maidan Police Station, under section 5 of the Explosive Substance Act, 1908. After usual investigation and obtaining requisite sanction from Home Department, Government of Sindh Karachi, the appellant was challaned.
3. The appellant pleaded not guilty to the charge when read out to him in Court and claimed a trial.
At the trial the prosecution examined Munawwar (P.W.1), Aqil Muneer (P.W.2), and Arshad Kamal Kayani, S.H.O. (P.W.3). Noor Masih Oamar (C.W.1), and Pir Muhammad Khan, Platoon Commander (C.W.2) were examined as Court-witnesses.
4. In his statement recorded under section 342, Cr.P.C., the appellant examined himself on oath (D.W.1), and produced certified copies of depositions of Muhammad Sharif (D.W.1), Talib Hussain (D.W.2), Wilburn Bede (D.W.3) and Stephen Asif (D.W.4) examined in connected case No.29 of 1988 (Crime No.67 of 1987) Artillery Maidan Police Station.
5. On the assessm ent of evidence available on record the learned Judge found the appellant guilty and convicted him accordingly. It is in these circumstances that the present appeal has been filed.
6. The case of the prosecution mainly rests upon the evidence of recoveries of the above articles from the briefcase lying in Room No.202, Y.M.CA. Karachi. Arshad Kamal Kayani, S.H.O. (P.W3) who is the main witness in this case has testified about the facts leading to these recoveries. His evidence shows that the appellant who was already in custody in some other crime was interrogated in Crime No.65 of 1987, Artillery Maidan Police Station under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and while in custody he led the Police Officer, Mashirs Munawwar and Aqil Munir to Room No.202, situated in Y.M.CA. Hostel, Karachi, and after opening the same with his key he produced one brief-case lying behind the cupboard which contained one hand-grenade, two sub-machine guns, one step-gun, live bullets and other articles.
All these articles were seized in presence of both the above Mashirs and such inventory was prepared on the spot. His cross-examination emphasised that Room No.202 was not in possession of appellant and he was in fact involved in this case due to enmity over Mst. Zareena. Both these suggestions were, however, denied by the witness.
7. Munawwar (P.W.1) who has acted as Mashir of recoveries appears to be an independent witness.
He was working as Receptionist at Y.M.CA. Hostel, Karachi, and was on duty at the relevant time when he was asked to act as Mashir. He is thus a natural witness. His evidence, however, proves beyond any shadow of doubt that the search of the said room was made in the absence of appellant, which is clear from the following extracts of his testimony:-- "And that police told me that accused Afzal Haider is sitting in the car. I had not seen him. Police opened the room as the key was with police .... Accused was not present at the time of search and that I had not seen him on that night."
8. Aqil Munir (P.W.2) who acted as co-Mashir was returning from Burns Road, Karachi, where he had gone to take Nihari, when at 12-30 a.m. His car was stopped by the police party and he was asked to witness the search. His evidence shows that the appellant who was with police party had led them to the Receptionist Y.M.CA. Hostel, Karachi, where Munawwar, co-Mashir produced the key of Room No.202 where the appellant was staying. His evidence further reveals that the room was opened with this key and then the appellant pointed out the brief-case containing the above articles.
9. It will, therefore, be seen that all the three witnesses examined by the prosecution on the point of recoveries have contradicted each other on material particulars. According to Arshad Kamal Kayani, S.H.O. (P.W.3) the appellant was with him when the room was opened with the key taken from the possession of appellant leading to the recoveries. Aqil Munir (P.W.2), who at his own showing is a chance witness has contradicted Arshad Kamal Kayani, S.H.O., by stating that the key was obtained from Munawwar (P.W.1), working as Receptionist, Y.M.CA. Hostel, Karachi, and the room was opened with this key leading to the recoveries of hand-grenade, sub-machine guns, sten-gun, bullets, etc. Munawwar (P.W.1) an employee of Y.M.C.A., an International Organization has contradicted both these witnesses by stating in clear terms that the appellant was not present when the search of Room No.202 was made leading to the recoveries of the above articles.
10. Section 103, Cr.P.C. Lays down in clear terms that it is obligatory on the officer making search to call on and get two or more ---respectable inhabitants of the locality--- to witness the search. The object in requiring the presence of two or more respectable persons of the locality at the time of search is to guard against possible chicanery and to ensure that there is no planting of incriminating articles by the police. This is not an empty formality and the Courts are bound to attach the greatest importance to the evidence of such witnesses. As observed earlier Munawwar (P.W.1) who is completely an independent person has demolished the entire case of the prosecution. The cumulative effect of the evidence of Munawwar (P.W.1), Aqil Munir (P.W.2) and Arshad Kamal Kayani S.H.O. (P.W.3) is that the recoveries of one hand--grenade, two submachine guns, one step-gun and bullets at the instance of the appellant are not free from doubt.
11. It is the case of the appellant that he had vacated Room No.202 of Y.M.CA. Hostel, Karachi, on 16- 2-1987 at 11-00 p.m., four days prior to the alleged recoveries. The plea raised by the appellant gets support from Munawwar (P.W.1) an employee of Y.M.C4 Hostel, Karachi, who deposed in the following terms:-- "Accused Afzal Haider left the room on 16-2-1987 at 11-00 p.m. In the night. I produce such entry at Serial No.202 in Check-out Register (Exh.7). After this accused never came and stayed ------When I took charge Room No.202 was vacant but was locked------."
12. Noor Masih Qamar (C.W.1) who was also working as Receptionist at Y.M.CA. Hostel, Karachi, has made it clear that Room No.202 was in possession of Y.M.CA. Thus, it is proved from the oral as well as documentary evidence that the appellant was not in possession of Room No.202, Y.M.CA. Hostel, Karachi, on the day when the alleged recoveries were made from a brief-case lying in this room.
13. On the materials before us which have been examined by us with all possible care and attention we have no hesitation in holding that the appellant's convictions are not warranted by the evidence produced against him in this case. Accordingly we allow the appeal and acquit the appellant who shall be I released forthwith, if not required in any other case.
14. In the result the impugned judgment is set aside and the appeal is allowed.