' MUHAMMAD ASLAM ARAIN, J.--- Appellant Abdul Wahid alias Babu was tried for offence under section 13-E, Arms Ordinance by Special Court-I, Suppression of Terrorist Activities, Karachi (Special Case No,556/91). By judgment, dated 27-4-1992 the said Court convicted appellant and sentenced him to R.I. For 5 years and gave benefit of section 382-B of Cr.P.C. Appellant has challenged his conviction through this appeal.
2. The brief facts of the case are that on 30th October, 1991, S.I. Kazi Ashfaq, Icharge, S.I.T.E. West, Karachi, under instructions from S.S.P., West, went with his subordinates to the house of one Yar Muhammad, situated at Badni Goth, Maripur Road, Karachi. The information to the police was that 5 culprits duly armed were present at the said house with intention to commit dacoity and kidnapping for ransom. Two private persons, namely, Khushi Muhammad and Abdul Majeed were taken by the police, and raided the house of Yar Muhammad on the pointation of a spy. Seeing the police party, the culprits opened firing and the police also fired in their defence at the culprits. After the firing was stopped the appellant was arrested and from his possession one Klashnikov with magazine containing 30 live rounds and 21 live rounds separately were recovered. A sum of Rs,150 was also recovered from his possession. Such statement under section 154, Cr.P.C. Was sent to Police Station Maripur where F.I.R. (Exh.9) was registered under section 7(1) of the Arms Ordinance.
After usual investigation case was sent up before the Special Court where charge under section 13- E of the Arms Ordinance was framed on 18-2-1992, to which appellant pleaded not guilty and claimed to be tried.
3. Prosecution examined P.W.1 Abdul Majeed (Exh.3). This witness was picked up as a Mashir at 5-00 a.m. While he was standing near Gulbai Railway Gate and was waiting for a bus to go to Sadar. He produced Mashirnama of arrest and recovery (Exh.4). The other private witness Khushi Muhammad, who also acted as a Mashir was given up. Prosecution then examined S.I.P. Ashfaq Ahmed (Exh.6) and he gave the same facts as mentioned in his report under section 154, Cr.P.C.
(Exh.7). Through him prosecution produced report of the Assistant Inspector-General of Police, Criminalistic Division, Karachi (Exh.8). It may be pertinent to mention that apart from appellant some other persons were also arrested as accused from whom different weapons were recovered and the report (Exh.8) is in respect of all such weapons as were secured from appellant herein and the other accused.
4. 4n his statement under section 342 of Cr.P.C., appellant denied all allegations against him. He also stated that he was permanent resident of Tando Bago and on 17-10-1991 at about 12-00 noon or 1-00 p.m. When he had gone to the office of Chairman, Town Committee, Tando Bago, Karachi Police came and arrested him from there and took him to Karachi where he was kept in police custody and the alleged kk and the rounds have been foisted on him. He did not examine himself on oath but produced 2 witnesses namely, Yar Muhammad and Haji Abdullah, in his defence, the former was Chairman, Town Committee, Tando Bago and the latter an Octroi Inspector, Town Committee, Tando Bago. Both these witnesses stated that the appellant was arrested on 17-10-1991 in their presence from the office of Town Committee, ' Tando Bago. On conclusion of trial, the learned trial Court convicted appellant and sentenced him as stated above.
5. Mr. Partab Rai, learned Advocate for the appellant, has contended that there is non-compliance of provisions of section 103 of Cr.P.C. Inasmuch as P.W. Abdul Majeed, the only private witness, did not belong to the place where the house of Yar Muhammad was situated and which house was proposed to be raided by the police on the basis of some spy information. It is also contended that Gulbai Railway Station is far away from the place of Wardat i,e. Badni Goth and although it was a thickly populated area and the time of raid was 8-00 a.m., no efforts were made to associate any resident of the area. It is further contended that although the crime weapon was allegedly recovered from appellant on 30-10-1991, the same was received in the office of the Ballistic Expert on 12-4-1992 in an unsealed condition. Neither the delay has been explained for the late despatch of the weapon to the Ballistic Expert nor any credence could be attached to the report of the Ballistic Expert, who had received the weapons in an unsealed condition. The report although positive would lend no support to the prosecution case. It is lastly contended that the two defence witnesses examined by appellant were the respectable persons and no reason for discarding their evidence had been given by the learned trial Court.
' Mr. Abdul Hakeem Bijarani, learned A.A.-G. Has supported the conviction. He has contended that the Mashir Abdul Majeed is not a stock-witness nor the defence had proved his link with police and his evidence was rightly believed by the trial Court. It is further contended that the two defence witnesses, one of whom is a Chairman of Town Committee, ought to have informed the local police of Tando Bago of the arrest of appellant in unusual circumstances which they have not done and their evidence is rightly rejected by the trial Court.
6. We have gone through the evidence and the impugned judgment and have also heard the learned counsel at length. The only private witness associated by the police during raid, arrest and search is Abdul Majeed. The perusal of his evidence shows that he was standing at Gulbai Railway Station at 5-00 a.m. To board a bus for Sadar. This place is stated to be about 5 miles or more from the house of Yar Muhammad in Badni Goth, where, according to the spy information, some accused had gathered with intent to commit robbery or offence of kidnapping for ransom. The very fact that the witness was picked up from such a far-off place and no steps were taken to call any respectable resident from village Badni Goth, where the house of Yar Muhammad is situated, casts serious doubt on the testimony of P.W. Abdul Majeed. In all cases of raids, arrest or recovery, compliance of provisions of section 103 of Cr.P.C. Is to be strictly made. It is only in exceptional circumstances that a departure could be made from the said provision of law. In this case no such circumstances were available. In Ashiq Hussain Chandio v. The State PLD 1992 Kar. 5 this Court while dealing with the scope of application of section 103, Cr.P.C. Held that in order to ensure proper investigation and clear proof, preference should be given to the witnesses of the locality particularly who are respectable. It was also held that where witnesses were not of the locality Court should cautiously examine their statements.
' In Yamin Kumhar v. The State PLD 1990 Kar. 275 this Court observed that the provisions of section 103 of Cr.P.C. As applicable to recovery, search and arrest made during investigation of a crime are mandatory but not absolute and its compliance in certain circumstances will not render search and recovery illegal. In Muhammad Saleem v. The State 1992 P Cr. L J 35 this Court observed that in cases under West Pakistan Arms Ordinance, 1965, the requirement of section 103, Cr.P.C. That 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 Courts should jealously guard this valuable right.
' In Maqbool Ahmed Shah v. The State 1992 P Cr. L J 48 this Court reiterated the above principle and while dealing with the provisions of search, it was held that the same is to be made in presence of respectable persons of locality which should be insisted upon except where departure from this provision of law is justified in the circumstances of a particular case.
7. The crime weapon i,e. Kk and live rounds allegedly recovered from appellant on 30-10-1991 were sent to the Ballistic Expert on 12-4-1992 i,e. After about 6 months. The parcels were received in the office of A.I.-G. Criminalistic Division, Karachi in an unsealed condition. Whether the arms allegedly recovered from appellant and other accused were the same which were sent for expert opinion, is a matter of great doubt. In cases where arms which are covered by the schedule to the Suppression of Terrorist Activities Act, 1975 and for which accused are to be tried by the Special Court, utmost care should be taken to despatch the arms for expert opinion without least delay and in a properly sealed and protected condition. If such care is not taken and the crime weapons are kept away by the police for 6 months and are then despatched in an unsealed condition, we are afraid, no importance could be attached to the report of the Expert. In Wazir and others v. The State PLD 1960 (W.P.) Kar. 674 it was held as under:-- "Where there is no evidence that the empty cartridges or the crime weapons recovered were made into sealed parcels at the spot, and where there has been inordinate delay in sending crime empties, and the weapons, from which they were alleged to have been fired, to the Ballistic Expert for identification purposes, the value of evidence furnished by these recoveries and identification test is considerably weakened and it will not be safe to place reliance on such evidence in a major kind."
' In Bacho and others v. The State PLD 1963 (W.P.) Kar. 891 it was held that it was unsafe to place any reliance on the evidence of recovery where there was undue delay in sending crime weapons and crime empties to Ballistic Expert as well as the absence. Of evidence to show that crime weapons and empties were made into sealed parcels at the spot.
' Evidence of two defence witnesses was never shaken in cross-examination by the Prosecutor.
They were both respectable witnesses from Tando Bago and had affirmed about the date and time of arrest of appellant by B Karachi Police. Their evidence was confidence inspiring and should not have been rejected in the manner in which it has been done by the trial Court. We are very clear in our mind to believe that the appellant was arrested from Tando Bago, brought over to Karachi and then the case foisted on him. The Mashir of arrest and recovery also seems to be a set-up witness, and the crime weapon seems to have been foisted on the accused and we attach no importance to the report of Ballistic Expert. The case against the appellant was C not free from doubt and in these circumstances the conviction and sentence cannot be sustained. We, therefore, accept this appeal, set aside the conviction and sentence and acquit the accused. By a short order, dated 1-10-1992, we had allowed this appeal and directed release of the appellant forthwith if not required in any other case and the above are the reasons for the same.