QAISER AHMED HAMIDI, J.--- By a short order, dated 19-9-1991, at the conclusion of the hearing of this appeal, we had allowed this appeal and directed the release of the appellant if he was not required in any other case, and we now proceed to record our reasons for the same.
2. Appellant Muhammad Saleem was tried by Mr. Allah Bux Memon, Judge, Special Court, Suppression of Terrorist Activities, Hyderabad, for the offence under section 13-E of the Arms Ordinance, 1965, who found him guilty and vide judgment, dated 13th March, 1991, sentenced him to suffer R.I. For three years. 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.
3. The facts of the case in brief are that on 20-9-1990 Khan Nawaz S.H.O. Hussainabad Police Station received secret information that unlicensed arms and ammunition were lying in Plot No.70/B, Unit No.4, Shah Lateefabad, Hyderabad. Acting on this information Khan Nawaz S.H.O. Left the police station at 3-30 p.m. Alongwith his subordinate staff in a police van. They also took the help of members of law enforcing agency from Jan-e-Alam Chowk. At about 4-40 p.m. The police party reached to the above plot which is surrounded by four walls. The gate of the plot was knocked and the call was responded by the present appellant who disclosed his name as Muhammad Saleem. On interrogation the appellant produced two bundles wrapped in tubes which contained rifles, and their ammunition. Two passports, one of Mehfooz Ali and the other of Mst. Nusrat Jehan alias Shaheen wife of Mehfooz Ali were also recovered from these bundles. Since the appellant had no valid licence for the arms and ammunition recovered from his possession he was arrested and such inventory was prepared in presence of Mashirs Zamir-ul-Hasan H.C. And Muhammad Qadeer, H.C. On return to police station Khan Nawaz S.H.O. Lodged F.I.R. On behalf of State. The investigation also revealed that Abdul Rahim, Dilawar and Farrukh were the associates of the appellant. After usual investigation all the four accused were challaned. The last three were sent up in absentia as they were absconding and have not been arrested up to this time.
4. 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 Khan Nawaz S.H.O. (P.W.1), and Zamir-ul-Hasan H.C. (P.W.2).
5. In his statement recorded under section 342, Cr.P.C., the appellant has denied the case of the prosecution by stating as follows:-- "I have no connection with the Plot No.70/B in any manner. I live about a furlong away from this plot.
This plot belongs to one Mehfooz Ali whose passports were recovered by police. Police left them and involved me. No public man is a witness against me."
6. The appellant did not step into the witness-box. He also led no defence.
7. 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.
8. The case of the prosecution against the appellant hinges upon the testimony of two police officials, namely, Khan Nawaz S.H.O. (P.W.1), and Zamir-ul-Hasan H.C. (P.W.2). Both of them have testified that on 20-9-1990 at 4-40 p.m. Plot No.70/B, Unit No.4, Shah Lateefabad, Hyderabad, was raided by them, where the present appellant was found who on interrogation produced the unlicensed rifles and their ammunition, which were lying concealed in bushes. How far, then has the prosecution been able to fulfil the requirements of law? I think, is the primary question.
Admittedly Khan Nawaz S.H.O. (P.W.1) had the prior information about these unlicensed arms and ammunition. The plot from where these recoveries were allegedly made is surrounded by a compound wall with a room inside it. It has also got a gate which was knocked by the members of police party. The alleged recoveries were made in broad daylight from a place which is situated in a thickly populated area. On the face of this admitted position it is not understood as to why some private persons were not taken to witness the search. Section 103, Cr.P.C. Applies to the search of place. The question which leaps to the eye is, why it was necessary to enact this provision at all if it was to be flouted in the manner as was done in this case. The witnesses of search should be `respectable' and `of the locality' and the occupant of the house should also be there at the time of search, are very valuable safeguards and the Courts should jealously guard this valuable right. The testimony of police officials alone on the point of such recoveries should be looked with deep suspicion.
9. This point was examined by a learned Single Judge of this Court in the case of Muhammad Ismail v. The State reported in PLD 1979 Kar. 31, wherein it was observed:-- "When the law makes a provision the Courts cannot relieve public functionaries of the obligation on ad hoc and sweeping considerations that no one in the locality would be prepared to serve as a Mashir or that if he would be so prepared he would be branded as a witness under influence of police. Each case depends on its own merits. Section 103, Cr.P.C. Itself insists on respectable persons being called and there can be no doubt that respectable persons are available in every locality and they can easily be chosen by the police. Provisions of this nature are designed to create a safeguard against possible chicanery and concoction on the part of the Investigating Officer and by allowing such provisions to be violated one is likely only to put a premium on possible false implication. Such a position cannot be lightly countenanced."
10. In the case of Yameen Kumhar v. The State reported in PLD 1990 Kar. 275, a Division Bench of this Court held that where the case of the prosecution depends entirely on recovery of arms and ammunition, (like the one under consideration) care has to be taken by the Court to scrutinize the statement of the witness for recovery with caution and the prosecution should also take care to produce independent and reliable witnesses to prove the recovery. Evidence of Investigating Officer, itself cannot be sufficient for the purposes of conviction and his solitary statement in circumstances when he had procured the witnesses to act as Mashirs becomes very doubtful and cannot be relied upon to convict the accused. It may be added that this judgment was approved by the Supreme Court in its recent judgment, dated 2-7-1991 passed in Criminal Appeal No.9-K of 1989.
11. With this legal position in view, let us now examine the evidence of Khan Nawaz S.H.O. (P.W.1) and Zamir-ul-Hasan H.C. (P.W.2) to find out, if they are worthy of credence. Khan Nawaz S.H.O. (P.W.1) has testified that the spy was not present at the place of recoveries. Zamir-ul-Hasan H.C. (P.W.2) has, however, contradicted the S.H.O. By stating that the spy had met them at the Wardat and in fact he had pointed out the place to them. Likewise the evidence of both these witnesses is contradictory in regard to the person who had prepared the Mashirnama (Exh.7) Khan Nawaz S.H.O.
(P.W.1) states that Muhammad Bus H.C. Had prepared the Mashirnama. Zamir-ul-Hasan H.C.
(P.W.2), however, belies the S.H.O. By stating that the Mashirnama (Exh.7) was prepared by Muhammad Qadeer H.C. Both these witnesses are trained police officials and such inconsistencies in their statements are not to be ignored lightly.
12. The perusal of the record further reveals that accused Abdul Rahim, Dilawar and Farrukh who are presently absconding were in constructive possession of these arms and ammunition. This factor again creates doubt about the complicity of the appellant who is shown to be in joint possession of the unlicensed arms and ammunition.
13. On overall appraisement of the entire evidence in the case and on considering all the surrounding circumstances, we are of the view that the case against the appellant is not free from doubt. Benefit of doubt is, therefore, extended to him and he is acquitted from the charge.
14. In the result the appeal is accepted and the impugned judgment is set aside.