1. ' MUKHTAR AHMED JUNEJO, J.--- Appellant Akhtar has challenged his conviction and sentence by the Judge, Special Court, Suppression of Terrorist Activities, Hyderabad, in Case No,126 of 1993 which is outcome of F.I.R. No,107 of 1993 of Police Station Market, Hyderabad.
2. ' According to the prosecution, appellant Akhtar was already in custody of Market Police in respect of F.I.R. No,26 of 1993, when on 2-8-1993 he volunteered to produce Klashnikov which he had kept at old Doctor's Hotel of Liaquat Medical College. On the same day the appellant led A.S.I. Mureed Abbas, H.C. Nek Muhammad and other Police Officers to the old hostel of doctors where he dug out earth from a place at back side of Chowkidar's room and took out a plastic bag containing one Klashnikov with a magazine containing 16 live bullets. The plastic bag also contained two empty magazines. Police recovered said articles under a Mashirnama. The appellant was questioned if he possessed licence for the Klashnikov and bullets but he replied in the negative. Police took the appellant and the recovered articles to Market Police Station, where A.S.I. Mureed Abbas lodged F.I.R. On behalf of the State against the appellant under the Arms Ordinance. A.S.I. Mureed Abbas also investigated the case and handed over the case papers to the S.H.O. Who challaned the appellant.
3. ' At this trial the appellant pleaded not guilty to the charge Exh.2 containing the prosecution allegations. Prosecution examined P.Ws. Mureed Abbas Exh.4 and Nek Muhammad Exh.7 and closed under statement Exh.8.
4. ' Under his statement Exh.9 the appellant denied recovery of the Klashnikov and 16 live bullets at his instance. In respect of witnesses the appellant stated that they were Police Officers and had falsely deposed. The appellant added that he was student in University of Sindh and was Vice-Chairman of Sindh Peoples' Students Federation. He added that he was arrested by Army Authorities on 22-7- 1993 from his house at Tando Yousaf and was detained in Army custody for 13 days. That after expiry of said period, his custody was given to Market Police which involved him in this false case at instance of Army.
5. ' The appellant did not examine himself on oath and did not lead evidence in defence. At conclusion of the trial, the appellant was convicted for the offence punishable under section 13-E of the Arms Ordinance and was sentenced to suffer R.I. For four years. Hence this appeal.
6. ' Mr. Qurban Ali Chohan learned counsel for the appellant argued that the alleged recovery took place from a place which was thickly populated area but no private person was picked up to act as Mashir. It was also argued that the place of recovery was not in exclusive custody of the appellant. It was next argued that the police should have registered the case before taking the appellant to the place of recovery. Learned counsel took exception to the fact that the appellant in his statement under section 342, Cr.P.C. Was not put any question about his not possessing the licence for the Klashnikov and the live bullets. In support learned counsel cited the cases of Zulfiqar Ali v. The State 1992 PCr.LJ 828 and Sajid Ali v. The State 1987 M LD 2692.
7. ' Mr. Abdul Ghani Shaikh learned AA.-G. Supported the conviction. He was of the view that testimony of the two prosecution witnesses had gone unchallenged because there were not a single question in the cross-examination. It was further argued that it was for the appellant to prove his innocence and to establish if the private persons were available at the site and they were deliberately not picked up the witnesses of recovery. Learned AA.-G. Further argued that there was no material on record to show that the appellant was involved in a false case. Learned AA.-G. Controverted the contention that no question was put to the appellant in his statement Exh.9 about his not possessing licence for the recorded Klashnikov and bullets.
8. An F.I.R. Is always recorded in respect of a cognizable offence. Contention of learned counsel for the appellant that the F.I.R. Should have been recorded before the recovery is preposterous and funny.
9. There is nothing on record to show if the appellant had remained in Army custody for 13 days.
10. Contention that no question was put to the appellant, in his statement, to the effect that he had no licence for Klashnikov and the bullets, is wrong, as rightly argued by the learned AA.-G. Who pointed out that under the first question the appellant was put that he had no licence for the Klashnikov and 16 live bullets.
11. ' Learned AA.-G. Conceded that only point going in favour of the appellant was that both witnesses who had deposed against him, were Police Officers and no private person was picked up to act as Mashir. Learned AA.-G. Proposed that since the appellant was unrepresented at his trial, the matter may be remanded to the trial Court for providing opportunity to the appellant to cross-examine the two witnesses. We would have agreed with learned AA.-G. If such a course would have been of any practical advantage to either of the parties.
12. ' It is an admitted fact that the appellant was already in custody of police when he allegedly volunteered to produce the Klashnikov and the bullets. The alleged recovery took place at 4-10 p.m.
13. The place of recovery was in a hostel, which is said to be situated near the Civil Hospital. In these circumstances it was essential for Market Police to pick up two private persons to act as Mashirs. If the police has not done so, it reflects their inefficiency and lack of knowledge of law. Probably the concerned police did not know the provisions contained in section 103 of Cr.P.C. Or they knowingly wanted to avoid the provisions of law by not following the mandatory provisions contained in section 103 of Cr.P.C. The police have spoiled their own case, if it was a genuine one. We cannot subscribe to the view of learned AA.-G. That onus was on the appellant to prove his innocence or that the appellant should have led evidence to show that private persons were available but were not picked up to act as Mashirs. In our view the alleged recovery was illegal as it was effected in contravention of the provisions contained in section 103 of Cr.P.C., which are the only check against false implication of a person by police, in a case of this nature.
14. ' For the foregoing reasons we accept this appeal, set aside the conviction and sentence of the appellant and order his acquittal. He be released forthwith if not required in any other case. These are reasons for such short order passed on 22-6-1994.