' MUHAMMAD ASLAM ARAIN, J.---These two appeals arise out of two separate judgments dated 9- 4-1992 passed by the Judge, Special Court-III (STA), Karachi, whereby each appellant is convicted for an offence under section 13-D, Arms Ordinance and sentenced to R.I. for 3 years each.
2. Since the two cases, in which appellants were tried, were the outcome of same incident and the evidence in both cases is common, we propose to decide these appeals by a single judgment.
3. The facts forming background of the case are that on 27-7-1991 at 06-30 hours, on spy information, A.S.I. Zaheer Hussain who headed a police party, raided the cattleshed of one Hashim Narejo near K.DA. Filter Plant, Steel Town, Karachi. The spy information to police was that six culprits had assembled at the said cattleshed of Hashim Narejo having made preparation to commit dacoity. At the time, the said cattleshed was raided, five accused, namely, Muhammad Ashraf Himayati (appellant in Crl. Appeal No, 95 of 1992), Jan Muhammad Shar, Niaz Ali Khaskheli, Allah Warayo (appellant in Cr. Appeal No,94 of 1992), Abdul Shakoor and an absconding accused Nooruddin Jamali were found present. The first five were arrested while Nooruddin Jamali absconded. From the possession of appellant Muhammad Ashraf Himayati one KK loaded with magazine and 30 rounds was recovered, while one sten gun with 14 rounds loaded in a magazine was recovered from appellant Allah Warayo. Similarly, from the possession of accused Jan Muhammad Shar, one KK loaded with magazine and 30 rounds were recovered, from the possession of accused Niaz Ali one .22 bore rifle with 10 cartridges was recovered and from the possession of Abdul Shakoor one .7 mm rifle loaded with 4 rounds was recovered. No details are available as to what was being carried by absconding accused Nooruddin Jamali.
4. F.I.R. No, 51 of 1991 was registered at P.S. Steel Town (sic) South, Karachi, under section 399/402, P.P.C., in which the 5 arrested accused were challaned before the Special Court, showing Nooruddin Jamali as an absconder.
5. A separate F.I.R. No,52 of 1991 was registered at the same police station against appellant Ashraf Himayati under section 13-D of Arms Ordinance. Similarly F.I.R. No,55 of 1991 was registered against appellant Allah Warayo under section 13-D, Arms Ordinance. Although Jan Muhammad Shar is not before this Court, it would be pertinent to mention that a similar F.I.R. under section 13-D of Arms Ordinance was registered against him also being F.I.R. No,53 of 1991. After usual investigation the appellants herein were challaned before the Special Court in the main case under section 399/402, P.P.C. and also in the cases registered against some of them under section 13-D of Arms Ordinance.
The main case against all the 5 arrested accused, ended in acquittal by judgment dated 9-4-1992, as there was no sufficient and convincing evidence that the accused had assembled at the relevant time in the cattleshed of Hashim Narejo, having made preparations to commit offence of dacoity. However, in the case under section 13-D of Arms Ordinance each appellant is convicted as stated- above, and the salient feature of the case is that on similar evidence accused Jan Muhammad, from whom one KK loaded with magazine and 30 rounds was allegedly recovered, is acquitted by judgment dated 14-5-1992.
6. We would like to give brief facts of each case, before referring to the contentions of learned counsel for the parties. Against appellant Ashraf Himayati, charge under section 13-D of Arms Ordinance was framed on 18-9-1991, to which he pleaded not guilty and claimed to be tried. The prosecution examined P.W. 1 Muhammad Nawaz (Exh.3), a Head Constable posted in SIC Napier South on the date of incident, P.W.2 Zakir Hussain, who was A.S.I. posted in SIC South on the date of incident, and he produced his statement under section 154 (Exh.5) and F.I.R. No,52 of 1991 (Exh.6). On an application by Special Prosecutor under section 540 of Cr.P.C., P.W. Zakir Hussain, A.S.I. was again called as a Court witness No,1 and his evidence was recorded vide Exh.8. As a Court witness he identified the handwriting and signature of A.S.I. Irfan Zaman of SIC South Napier, who had registered the F.I.R., as, by that time Irfan Zaman was not available to be examined before the Court. The report of Ballistic Expert was produced vide Exh.10 through A.S.I. Zakir Hussain. Statement of Ashraf Himayati (Exh.11) was recorded under section 342 of Cr.P.C., in which he denied the allegation of having been found in possession of an unlicensed KK with a magazine and 30 rounds.
He also stated that he was arrested on 15-7-1991 from City Courts where he had gone to meet his friend Bashir Khaskheli whose case was fixed for hearing on that day. On conclusion of evidence, appellant Ashraf Himayati was convicted on 9-4-1992 and sentenced to R.I. for 3 years as stated above.
7. Against appellant Allah Warayo (Crl. Appeal No,94 of 1992) charge under section 13-D, Arms Ordinance was framed on 18-9-1991, to which he pleaded not guilty. Prosecution examined P.W.1 Muhammad Nawaz (Exh.3) Head Constable, who, on the date of incident, was posted as a police constable in SIC Napier South and be produced Mashirnama (Exh.3/A) regarding arrest and recovery. The next witness examined was A.S.I. Zakir Hussain, who, on the date of incident, was posted in SIC South and he produced his statement under section 154, Cr.P.C. (Exh.4-A), F.I.R. No,55 of 1991 (Exh.4-B) and report of Ballistic Expert dated 10-8-1991 (Exh.4-C). Statement of Allah Warayo under section 342, Cr.P.C. was recorded vide Exh.6 and he also denied the allegations against him.
' 7-A. Appellant Allah Warayo examined defence witness Riaz Hussain Lund (Exh.9), who stated that he was General Secretary of Liberal Workers Union in Pakistan Steel, where the police conducted raid in Steel Town, Karachi on 19-7-1991 at 4-00 a.m. He was informed by another person that Allah Warayo appellant and Qasim Bughio were arrested by the police. He further stated, that he alongwith other respectables of the area went to S.H.O. Steel Town to make enquiries but they were informed that police were ignorant about their arrest. Subsequently, the S.H.O. informed that the said two accused were arrested and were handed over to Inspector Riaz Qureshi. On conclusion of trial, the appellant Allah Warayo was convicted to R.I. for .3 years by judgment dated 9-4-1992 as stated above.
8. The contentions of the learned Advocates for the appellants are that the place from where the two appellants are stated to have been arrested was a thickly populated place, where inhabitants of the area were available and so also the workers at the cattleshed but none was called or associated to act as Mashir of the arrest and recovery. Thus, according to the learned Advocates, there is clear violation of the provisions of section 103 of Cr.P.C. and the entire arrest and recovery proceedings become doubtful. In support of such contention reliance is placed on Saleem v. The State 1989 PCr.LJ 1319, where this Court held that the requirement of law under section 103 regarding the search of the places to be made in presence of respectables of locality should be strictly insisted upon and the Court should ensure that witnesses were essentially independent, unbiased and without being in any way under control of police. For the same, reliance is also placed on two celebrated judgments (i) Yar Muhammad and 3 others v. The State 1992 SCMR 96 and (ii) Yamin Kumhar v. The State PLD 1990 Kar.
275.
' It is further contended that in the main case under sections 399 - 402, P.P.C. the appellants and co-accused have been acquitted but on same evidence in the case under section 13-D of Arms Ordinance, conviction is recorded. In addition to it, the accused Jan Muhammad Shar from whom a KK loaded with magazine and 30 rounds was allegedly recovered at the same time and was arrested, is acquitted in case under section 13-D, Arms Ordinance, although same police officers appeared as witnesses, as in the cases of two appellants herein. The learned trial Court in the case of accused Jan Muhammad Shar disbelieved his arrest and recovery as he had successfully shown not to have been present at the scene of offence at the given time. It is, therefore, argued that since the presence of one culprit is disbelie-ed and the evidence of police officials is discarded, the same evidence could not have been made basis of convicting the two appellants.
' Mr. Muhammad Zubair Qureshi, the learned Advocate appearing for the State, has supported the conviction and has stated that the police officials ar? as good witnesses as any other private citizen and due credence should be given to the evidence of the police officers examined. In support of his such contention reliance is placed on Khaqan v. The State PLD 1982 Lah. 344 where a learned Single Judge of the Lahore High Court held that where recovery witnesses have been won over and dropped by prosecution, recovery can still be proved by solitary statement of I.O., who is to be treated as good a witness as any other member of public.
9. We have gone through the entire evidence on record and the two judgments of the trial Court. It has not come in evidence that the raiding party of police had made efforts to associate private witnesses from locality to act as Mashir but such witnesses were not available. On the contrary it is on record that at the time of raid the sun had already arisen and the police did not call any public person to witness the recovery. It is also on record that there were 3-4 houses in the compound wall while other' houses were away from the cattle-shed. Thus the failure of police to associate respectable witnesses of the area, who could have been available if such efforts were made, has rendered the search and recovery doubtful as strict compliance of section 103 of Cr.P.C. was not made.
10. In the case against accused Jan Muhammad Shar the same learned trial Court disbelieved the version of prosecution with regard to his arrest and recovery as the said accused had proved that he was present elsewhere at the time of incident. All the 5 accused including the two appellants herein were allegedly arrested at the same time and place and if the arrest and recovery from Jan Muhammad Shar is disbelieved the benefit of same should also have been given to the appellants.
11. In the case of appellant Allah Warayo, the learned trial Court has rejected the evidence of the defence witness Riaz Hussain Lund without giving any cogent reasons. In the main case under section 399-402, P.P.C. the accused including the two appellants herein, had shown by producing various newspapers, that they had given statements against the police and had condemned mala fide arrest of the workers of a particular political party. We, therefore, doubt if appellants were arrested in the circumstances as stated by the prosecution and that the recovery of unlicensed arms was made from them. We agree with the contention of the learned Advocate for the State that the police offices are as good witnesses as any private individual, but the facts of each case are to be taken into consideration while deciding guilt or innocence of an accused. In the judgment of Lahore High Court cited by learned counsel for State, the facts were totally different from the facts of the cases before us. In that case the recovery Mashirs were either won over or dropped by the prosecution and, therefore, the statement of I.O. on the point of recovery was believed. In the cases in hand such are not the facts but there is a serious lapse on the part of the I.O. in not associating the witnesses of locality or even making an attempt to call any such witness. In our view the case against the two appellants was not proved beyond all reasonable doubts and the incoherent and shaky evidence could not have been made basis of recording conviction against appellants.
12. For the aforesaid reasons, we accept the appeals, set aside the conviction and sentence and acquit the appellants. They shall be released forthwith if not required in any other case. By a short order, dated 15-9-1992, we had allowed the appeals and directed acquittal of the appellants and above are the reasons for the same.