1. ' MUKHTAR AHMED JUNEJO, J.---Appellant Muhammad Soomar has challenged his conviction and sentence by Judge, Special Court, Suppression of Terrorist Activities, Dadu in Case No,18 of 1992 which was outcome of F.I.R. No,153 of 1992 of Police Station Dadu.
2. ' According to the prosecution on 25-11-1992 appellant Muhammad Soomar was already in police custody in case of FIR No, 12 of 1992 of Police Station Dadu, when he volunteered to produce the crime weapon used in the said offence. Consequently appellant led police party headed by Liaquat Ali S.H.O. Dadu to his house in village Muhammad Khan Chandio Taluka Dadu and produced from hedge of his house a Klashnikov with two magazines one containing 14 bullets and the other one containing 10 bullets. The Klashnikov as well as the bullets were recovered, under a mashirnama. Subsequently the recovered property was taken alongwith the appellant to Police Station Dadu where a case under Arms Ordinance was registered against the appellant by Inspector Liaquat Ali, S.H.O., Dadu. On completion of investigation the appellant was challaned.
3. ' At his trial the appellant pleaded not guilty to the charge Exh.2 containing the prosecution allegations. Prosecution examined P.Ws. Mazhar Ali Exh.4 and Liaquat Ali Exh.5 and closed side under statement Exh.6.
4. ' Under his statement Exh.7 the appellant denied the prosecution allegations and made statement that he was arrested on 7-6-1992 by Army and was released and subsequently he was arrested in Crime No,12 of 1992 of Police Station Dadu for offence under section 365-A of P.P.C. The appellant alleged that the S.H.O. Demanded from him illegal gratification which he did not pay and hence he was falsely involved in this case. He disowned the case property and added that he was a Zamindar and Nek Mard of the locality. He produced copy of entry from village form in support.
5. Appellant also gave his statement on oath Exh.8 but did not lead evidence in defence. At conclusion of the trial, the Judge Special Court convicted the appellant under section 13-E of Arms Ordinance and sentenced him to undergo R.I. For seven years and to pay fine of Rs,10,000 or in default to undergo further R.I. For one year. Hence this appeal.
6. ' Mr. Qurban All Chohan, learned counsel for the appellant argued that initially the appellant was arrested by Army on 6-7-1992 but subsequently he was cleared and released. He further argued that the appellant was arrested second time in connection with F.I.R. No,12 of 1992 of Police Station Dadu and then present case was registered against him on 25-11-1992. It was vehemently argued by learned counsel for the appellant that although the police party had advance information about the possible recovery of incriminating articles from the appellant, yet they did not pick up any private person to witness the recovery, although on the way they passed through certain villages where private persons were available. It was next argued that although both the prosecution witnesses examined were police officers yet there were contradictions in their evidence about preparation of the mashirnama. Learned counsel also argued that the alleged recovery was from the hedge which was not in exclusive custody of the appellant, who was a Zamindar. In support learned counsel cited the cases of;
(i) Sultan and others v. The State 1987 SCM R 1177; (ii) Muhammad Achar v. The State PLD 1990 Kar.
7. 314; (iii) Muhammad Shafi v. The State PLD 1987 FSC 16; (iv) Maqbool Ahmed Shah v. The State 1992 PCr.LJ 48; (v) Saifullah v. The State 1992 M LD 984 and Yameen Kumhar v. The State PLD 1990 Kar.
8. 275.
9. ' Mr. Abdul Ghani Shaikh, learned AA.-G. Conceded that recovery of the Klashnikov and bullets took place from a hedge, while the appellant was in custody in connection with case of F.I.R. No,12 of 1992. Learned AA.-G. Did not support the conviction on the ground that the recovery took place during broad daylight and yet no private person was picked up as a mashir.
10. ' The prosecution case rests on the evidence of P.Ws. Mazhar Ali Exh.4 and Liaquat Ali Exh.5. Both of them are police officers. They claimed to have been led by the appellant to his house from where a Klashnikov with two magazines loaded with 14 bullets and 10 bullets respectively were recovered.
11. Mazhar Ali Exh.4 added that the appellant entered his house and produced from there a Klashnikov with bullets secured from the root inside hedge of his house. Similar evidence was given by Liaquat Ali who was S.H.O. Dadu at the relevant time. He produced his FIR Exh.5-A and supported the mashirnama of recovery Exh.4-A.
12. ' According to Mazhar Ali Exh.4 the mashirnama was prepared by the S.H.O. In presence of the mashirs. He repeated this in his cross-examination adding that the S.H.O. Took 10 minutes in securing the crime weapons and preparing the mashirnama. As against this S.H.O. Liaquat Ali deposed that he recovered the Klashnikov and bullets under a mashirnama Exh.4-A in presence of mashirs Mazhar Ali and Achar both constables. In his cross-examination S.H.O. Admitted that he had not written the mashirnama that it was written by a constable whose name he could not remember.
13. ' S.H.O. Liaquat Ali admitted in his cross-examination that from Police Station Dadu upto village of the appellant, there were many villages on the way. Despite this no private person was picked up by the S.H.O. To act as mashir. He further stated that house of the appellant was surrounded by a hedge and it had no door and its entrance was open. This shows that anybody could have access to the place, from where the recoveries were made. In other words the appellant was not in exclusive possession of the Klashnikov and the bullets allegedly recovered from him.
14. ' In the case of Yameen Kumhar PLD 1990 Kar. 275 the case of Sultan and others 1987 SCM R 1177 was referred and following observations were made.
15. "A perusal of the aforestated authorities and a catena of judgments of various High Courts which we have not quoted here clearly lay down that section 103, Cr.P.C. Is to be applied to recovery, search and arrest made during investigation of a crime. It has been termed as mandatory but not absolute and its non-compliance in certain circumstances will not render search and recovery illegal. However, where during investigation of a crime recovery is made from any inhabited locality compliance with section 103 must be made. It cannot be ignored or brushed aside on the whims and caprices of the Investigating Officer except on well-founded grounds and in exceptional cases.
16. If recovery has been made in contravention of section 103, it is the duty of the prosecution to explain it and give valid and reasonable explanation for such digression. Recovery is an important piece of evidence which is to be proved by disinterested, independent and respectable witnesses.
17. Such witnesses should be of the locality if the circumstances of the case permit. Section 103 embodies rule of prudence and justice. It is intended to eliminate and guard against "chicanery" and "concoction", to minimise manipulation and false implication. It is for these reasons that there is a consensus in the Superior Courts that compliance with section 103 should not be bypassed nor that its applicability be restricted to proceedings under Chapter VII only. The principles of section 103 have been applied and practised during investigation in crimes for so long and with such regularity and force, that any attempt to restrict it to proceedings under Chapter VII only will unsettle the settled law."
18. ' Besides the special features of the case discussed above, and the case-law, learned A.A.-G. Has conceded that the prosecution evidence was not sufficient for conviction of the appellant.
19. ' For the foregoing reasons we accept this appeal and set aside the conviction and sentence of the appellant and acquit him. The appellant be released forthwith if not required in any other case.