IJAZ NISAR, J.--- Sohail Butt son of Rehmat Ali has been convicted by Kh. Mahmood Ahmad, Judge Special Court (Suppression of Terrorist Activities), Gujranwala on 17-7-1990 under section 13/XX/1965 of the Arms Ordinance and sentenced to seven years' R.I. And a fine of Rs.20,000 or in default to undergo further R.I. For one year. He has appealed.
2. The prosecution case is that on 9-9-1989 at about 11 p.m. Muhammad Yasin, Inspector/S.H.O.
Police Station Satellite Town, Gujranwala (P.W.3) was present at upper Chenab Canal Bridge. He learnt about the presence of Sohail Butt and his brother Rohail Butt in Popular Nursery, Gujranwala.
Consequently, he alongwith other police officials proceeded to that place and apprehended Sohail Butt appellant and recovered unlicensed Klashnikov P.1 with five live bullets P.3/1-5 through memo.
Exh.P.B. Attested by Muhammad Hanif Butt .S.I. P.W.2 and Muhammad Ramzan Constable (not examined). He challaned the appellant under the Arms Ordinance.
3. At the trial, the prosecution examined three witnesses in support of its case. Muhammad Riaz A.S.I. IP.W.1 drafted the formal F.I.R. Exh.PA./1 on the basis of the complaint Exh.P.A. Muhammad Hanif Butt S.I. P.W.2 and Muhammad Yasin, Inspector P.W.3 proved the, recovery of Klashnikov P.1 and the bullets from the possession of the appellant.
4. The appellant denied the prosecution allegations and disowned the Klashnikov and bullets.
According to him he had been falsely involved by Muhammad Hanif Butt S.I. Because his father used to support Qaim Din in the pre-emption suit filed by him against Muhammad Hanif Butt S.I. He added, that Humayun and Azam had filed a writ petition and complaint against Muhammad Yasin, Inspector who used to ask him to prevail upon them to withdraw from the said litigation but they refused to accede to his demand. He examined Kh. Abdul Majeed, Councillor in his defence.
According to him the police had searched the house of the appellant but could not find any objectionable article. Mushtaq Ahmad Singhu D.W.2 also made a similar statement. According to him the police had apprehended the appellant from his house and later involved him and his brother in the case.
5. Relying on the evidence of Muhammad Hanif Butt, S.I. P.W.2 and Muhammad Yasin, Inspector P.W.3 the trial Court convicted and sentenced the appellant as described above. The Court observed that since the recovery was not made as a result of any search compliance with the provisions of section 103, P.P.C. Was not mandatory.
6. It is contended that the recovery is fake and the appellant was involved by Muhammad Hanif Butt, S.I. On account of enmity and that the defence evidence was not considered in its true perspective. It is further stated that testimony of the recovery witnesses who both are police officials is not corroborated by any independent circumstance.
7. Learned counsel for the State submits that the police official is as good a witness as an ordinary witness, therefore, the non-examination of any independent evidence would have no adverse bearing on the prosecution case.
8. Section 24 of the Arms Ordinance makes applicable the provisions of Cr.P.C. To the searches made for the recovery of arms. Section 103, Cr.P.C. Requires the presence of two or more respectables of the locality to witness/attest the search. No doubt, the police witness is as good a witness as an ordinary witness but this principle is not of universal application and does not mean that no/corroboration is required of police witness. His evidence has to be judged in the background of all the attending circumstances and if it inspires confidence it may be acted upon but the police cannot be permitted to disregard the mandatory provisions of law with regard to the search. They should make earnest efforts to associate two or more respectables of the locality in the search.
9. It may not always be safe to act upon the uncorroborated testimony of a Police Officer because he is not only party to the case but is also interested in its outcome. He simultaneously acts as a prosecutor, investigator and a witness in the case.
10. In the present case both the recovery witnesses are police officials. Although, the recovery was alleged to have been made from a public place, no attempt was made to associate any member of the public in the recovery proceedings. The appellant has levelled serious allegations of existence of hostility between him and Muhammad Hanif Butt, S.I. In the wake of these allegations it was all the more necessary to associate some independent witness with the recovery. It would not be out of place to mention here that the evidence of the abovementioned police officials was not accepted in other cases of recovery against the appellant and his brother Rohail Butt alleged to have been made on that very night.
11 For the foregoing reasons we are of the opinion that the prosecution evidence is not of sufficient intrinsic reliability to sustain the prosecution case. Accordingly, we accept the appeal, set aside the conviction and sentence of the appellant acquit him of the charge. He shall be released forthwith, if not required in any other case.
S.A../S-33/L