RAJA AFRASIAB KHAN, J.Rashid Ahmad son of Ilam Din, caste Jat, resident of Medherianwala, District Gujranwala, was convicted by the learned Special Judge (Suppression of Terrorists Activities) Act, 1975, Gujranwala, under section 13 of the Arms Ordinance, 1965, anti vas sentenced to three years' R.I. Plus a fine of Rs.5,000 or in default thereof to undergo, further R.I. For one year. The appellant was also given the benefit of section 382-B, Cr.P.C. He has challenged his conviction and sentence by riling this appeal before this Court.
2. Shortly stated the facts of the case are that on 15-1-1991 an information was received by the police that proclaimed offendersin many criminal cases were being harboured in village Medherianwala by the villagers. Accordingly, a raiding party was constituted under the direction of Raja Manzoor Ahmad, Additional Superintendent of Police, Gujranwala. The party was supervised by Raja Muhammad Zar D.S.P. And Ghulam Muhammad Kalyar, D.S.P. Akhtar Ali S.I. (P.W.2) raided the house of the appellant and found him while sitting on a cot inside his house. He was holding a rifle G-III and a shopper bag containing 190 live cartridges P.2/1-190. The appellant was arrested red handed and the weapon and ammunition were taken into possession vide memo. Exh.P.A. The recovery of these articles was attested by Muhammad Yaqub A.S.I. And Ejaz Hussain A.S.I. P.Ws.
3. The prosecution in order to prove its case produced Ejaz Hussain A.S.I. P.W.1, Akhtar Ali Shah S.I.
P.W.2 and Imtiaz Ahmad Head Constable P.W.3. The appellant denied the allegation levelled against him while making a statement under section 342, Cr.P.C.
4. Learned counsel contends with vehemence that the prosecution has failed to prove its case beyond reasonable doubt against the appellant inasmuch as the recovery witnesses consist of only police officials and that no witness from public was produced to prove the recovery, although the raiding party was definitely in a position to do so. The learned State counsel defended the conviction and sentence of the appellant by adopting the reasons, given by the learned trial Judge in the judgment.
5. We have heard the learned counsel for the parties at some length and have also read the whole record with care. We are of the view that the alleged recovery was effected from the appellant from his house. It was, therefore, necessary under section 103, Cr.P.C. For the prosecution to have joined public witnesses to witness the alleged recovery of the weapon and bullets from the possession of the appellant. The raiding party could very well ask the headman and the watchman of the village to join them to witness the recovery. This was not done for the reasons best known to the police. No satisfactory explanation for not joining the respectable witnesses from the village to see the recovery was offered by the prosecution. In our considered view, the provisions of section 103, Cr.P.C. Are applicable with full force to the facts and circumstances of this case. It is thus evident that the mandatory provisions of law were violated by the police party. This is a serious flaw in the case of the prosecution which cannot at all be condoned. This being so, we are of the view that the prosecution did not succeed in proving any case whatsoever against the appellant beyond reasonable doubt.' The appeal is accordingly accepted and conviction and sentence of the appellant are set aside by giving him benefit of doubt. He shall be released forthwith provided, of course, he is not needed in some other criminal case.
S.A./R-21/L