' MIAN ABDUL KHALIQ, J.---Appellant Zahid Hussain was tried by Mian Nusratullah, Judge, Punjab Special Courts Suppression of Terrorist Activities, Bahawalpur Division, Bahawalpur, for the offence under sections 8, 9, 13/20/65, Arms Ordinance, who found him guilty and vide his judgment dated 4-10-1992 sentenced him to suffer-7 years' R.I. Plus a fine of Rs,30,000, in default whereof to undergo further R.I. For 1-1/2 years. He was also extended benefit of section 382-B, Cr.P.C.
2. By this appeal filed under section 7 of the Suppression of Terrorist Activities Act, 1975, the appellant challenged his conviction and sentence.
3. The case of the prosecution is that on 29-7-1992 at 10-00 a.m. In the area of Chak No, 217/P, Ijaz Hussain, A.S.I. Of Police Station Kot Sabzal, District Rahimyar Khan (P.W.4) left for patrolling along with his subordinate staff in an official van. The police party reached near Chak No, 217/P where they found the present appellant crossing Punjab border from Sindh with a polythene fertilizer bag on his head, who was stopped and interrogated. He stated his name and address. The police officials searched the bag which the appellant was carrying on his head and the same contained a Klashnikov P.1 and a magazine of 27 live bullets P.2/1-27 which were recovered. Since the appellant had no valid licence for the arm and amunition which he was carrying, the same was secured vide memo. Exh. PC, attested by Muhammad Ashraf Constable (given up) and Abdul Hamid Constable (P.W. 3). P.W. 4 Ijaz Hussain ASI drafted complaint Exh. PA and sent the same to the police station and on its basis F.I.R. Exh. PA/1 was recorded by P.W. 1 Azizullah Khan S.H.O.
4. Charge under sections 8, 9 and 13 of the Arms Ordinance (XX of 1965) read with section 7 of the Surrender of Illicit Arms Ordinance (XX of 1991) was framed against the appellant, to which he pleaded not guilty and claimed trial.
5. At the trial the prosecution examined P.W. 1 Azizullah Khan, S.H.O. Who had drafted formal F.I.R.
Exh. PA/1 on the basis of complaint Exh. PA, P.W. 2 Taleh Muhammad Shah, Head Constable/Armourer, who had examined Klashnikov P.1 along with magazine of 27 live bullets P.2/1- 27 and found the same automatic/single shot, double action and brust and his report is Exh.PB.
P.W.3 Abdul Hamid Constable on 29-7-1992 was on patrol duty with P.W.4 Ijaz Hussain, A.S.I., Muhammad Ashraf Constable P.W. (given up) as well as Irshad Ahmad Constable on a police vehicle at about 11-00 a.m. In the area of Chak No, 217/P near the border of Sindh and Punjab, when the appellant was found coming from Sindh side with a polythene bag on his head. P.W.4 Ijaz Hussain, A.S.I. Stopped the appellant, who was searched. Klashnikov P.1 along with its magazine loaded with 27 live bullets P. 2/1-7 was found in the polythene bag P.3. As the appellant could not produce any licence of the said arm and ammunition, the same was secured by P.W.4 vide memo Exh.PC attested by P.W.3 Abdul Hamid and Muhammad Ashraf Constable (given up). P.W.4 Ijaz Hussain, A.S.I. Narrated the facts mentioned by him in the complaint Exh. PA and about taking into possession of crime property i,e, Klashnikov P.1 along with 27 live bullets P.2/1-27 from within the polythene bag P.3, which the appellant was carrying on his head. The appellant could not produce any licence of the crime property which was secured by P.W.3 vide memo Exh. PC attested by P.W.3.
P.W.4 drafted the complaint Exh. PA and also from the personal search of the appellant secured his driving licence P.4, licence of gun P.5, wrist watch Seiko-5, P.6 vide memo Exh.PE attested by the abovesaid recovery witnesses. In his statement under section 342, Cr.P.C. The appellant had disputed the case of the prosecution alleging enmity with the police and had stated that he had been falsely involved in the present case on behest of Malik Nabi Bakhsh, and Ch. Bashir Ahmad, SI/SHO, Police Station Paka Laran, who had got registered a false case against his brother Ahmad Bakhsh and others under section 10(2) Ordinance No, V of 1979, and his brothers Muhammad Arif was a witness for Gulshair, their relative, in writ petition filed by him in the High Court. Both the P.Ws.
Belonged to the Police Department and they had deposed falsely against him. He also stated that he was arrested two days earlier to 29-7-1992 from Khanpur City by P.W.4 where the appellant had gone to purchase spray for his cotton and Nabi Bakhsh ASI was also alongwith him. He tendered in defence certified copies of F.I.R. No,100/90 dated 11-4-1990, report under section 173, Cr.P.C. In case F.I.R. No,100/90, order dated 29-4-1991 passed by A.C/MIC, Khanpur, Writ Petition No,191/92/BWP Exh.
DD and F.T.R. No, 43/92 dated 25-4-1992.
6. The appellant stepped into the witness box as envisaged under section 340(2), Cr.P.C. And stated that he was innocent and did not want to add anything else to his statement under section 342, Cr.P.C. And the same be read as part of his statement also.
7. The appellant was found guilty and convicted by the learned trial Judge after assessment of the evidence available on the record, hence the present appeal.
8. Learned counsel appearing for the appellant has with great force urged us for disbelieving the P.Ws. And has endeavoured to show that the patrolling and recovery of crime property from the possession of the appellant is not reliable. He has further argued that the circumstances are not inconsistent with the plot having been formed to fasten the guilt upon the appellant who was in fact arrested two days earlier to 29-7-1992. He also criticised the evidence of police officials i,e, P.Ws., who according to him are liars.
9. The evidence of the police officials cannot be discarded simply because they belong to the police force. A police official is as good a witness as any other person. The standard of adjudging their evidence is the same on which the evidence of any other witness is adjudged. In the instant case the fate of the accused person hinges upon the testimony of police officials alone. It is necessary to find out if there was any possibility of securing any independent person at the time of recovery. The conviction or acquittal of an accused person depends upon the credibility of witnesses as obtained by the Court, but where the independent witnesses were available, but were not picked up to witness the recoveries, the Court has to be more careful in believing such evidence. The judicial approach must be very cautious in dealing with such evidence.
10. We are aware and conscious of the fact that the provisions of section 103, Cr.P.C. Are not attracted to a case of personal search. However, in the circumstances of the present case, the place where the recoveries were made from the appellant, was situated near the border of Punjab and Sindh Provinces. The omission to take independent witnesses from the locality is significant and cannot be brushed aside or thrown away lightly, especially when the recoveries were made in the broad daylight. P.W. 3 Abdul Hamid Constable during cross-examination has stated that they did not join anybody from the public in the police party since the start from the police station till the arrest of the accused... ... ... After completing the formalities they brought the appellant at Check Post 40/RD which is at a distance of about 7/8 miles from the place of arrest of the appellant. It took about an hour in completing the formalities. P.W.4 Ijaz Hussain, ASI had with him Abbas Mustafa as driver of the police vehicle while on `gashe along with the other police officials. When they apprehended the appellant in the area of Chak No, 217/P no persons from the public was available there. P.W.4 further stated during cross-examination that it took an hour in completing all the formalities at the spot and Irshad Ahmad Constable was sent to the police station straight from the place of arrest on foot and he might have taken bus etc. From the distance of about 2 K. Ms. Even after arrest of the appellant he did not send Abbas Mustafa Driver to the Abadi of Chak No,217/P for bringing any respectable/Lumberdar/Member, Union Council etc. In order to see the appellant along with the kalashnikov P.1 etc. The Abadi of Chak No,217/P is at a distance of about one mile from the place of arrest of the appellant.
11. The case of the appellant is that he was arrested two days earlier to the present occurrence due to the enmity with the police and had placed on record documents Exhs. DA to DE. The defence evidence was rejected by the trial Judge for no obvious reason, who dealt with this evidence in a very casual manner. The learned trial Judge was duty bound to appraise the whole evidence on record and also to examine the credibility of the witnesses.
12. Pursuant to the above discussion we find ourselves unable to uphold the conviction of the appellant and giving him benefit of doubt we set aside his conviction and sentence and would direct that he be set at liberty if not wanted in any other case. By a short order dated 3-5-1993 we had accepted this appeal and these are the reasons for the said order.