1. ' On 29-2-1996 this appeal was heard and by a short order it was allowed and the appellant was acquitted for the reasons to be recorded later on, as such following are the reasons: ' Present appeal is called in question the illegality and irregularity of the judgment, dated 9-9-1989 passed by Sessions Judge, Larkana whereby he convicted the appellant under section 13(e), Arms Ordinance and sentenced him to undergo R.I. For two years and to pay a fine of Rs,500, in case of default in payment of fine to suffer R.I. For six weeks more.
2. Briefly stated the prosecution case As stated in F.I.R. Being Crime No,135/1988 of Police Station, Shaddadkot registered by A.S.I. Javed Shah is that during the course of investigation of Crime No,130/1988 registered on 23-10-1988 under section 17(3), Hudood Ordinance at the same Police Station. It is the case of the prosecution and that during the investigation of above cited crime, accused Gulshan alias Gulsho volunteered to produce the incriminating articles used in the above cited crime. As such the Investigating Officer along with his subordinate staff and accused Gulshan alias Gulsho left the police station after keeping entry at Serial No,27 on 12-11-1988 at 7-30 a.m. In the Roznamcha. Accused Gulshan led the police party to the northern "Lorha" of accused Dildar's house situated in Village Shahbazi Chandio and from the said "Lorha" took out a gun and four live cartridges. It is the case of the prosecution that Investigating Officer demanded the license of the gun which he could not produce, as such the same was secured under a Mashirnama and the Investigating Officer brought the secured incriminating articles to the Police Station, Shandadkot and lodged his report being Crime No,135/1988 under section 13-E, Arms Ordinance and after usual investigation, challenged the accused.
3. ' In support of its case, prosecution examined two witnesses. P.W.1 A.S.I. Javed Shah Exh.5 who produced the Mashirnama of recovery as Exh.6, and F.I.R. Being Crime No,135/1988 under section 13- E, Arms Ordinance as Exh.7. P.W.2 P.C. Abdul Ghafoor as Exh.8. Prosecution closed its side vide statement Exh.9. Statement of accused was recorded under section 342, Cr.P.C. As Exh.10 in which he denied the allegations but he declined to examine himself under section 340(2), Cr.P.C.
4. ' The learned Sessions Judge determined the following point and convicted the appellant:-- "Whether the accused Gulshan was found to be having in his possession/under his control one unlicensed single barrel gun of .12 bore and four live cartridges thereof which he, while being in custody, recovered at 9-00 a.m. On 12-11-1988 from the northern Lorha of Dildar's house situated in village Shahbazi Chandio and produced the same before police which secured the same under a Mashirnama?"
5. ' I have heard Mr. Nisar Ahmed Bhatti, Advocate for the appellant and Mr. Sierras for the State.
6. ' The main contention of Mr. Bhatti is that initially the accused was arrested in Crime No, 130/1988 of Police Station Shandadkot under section 17(3), Hudood Ordinance in which he was acquitted. He has also argued that as alleged-the gun and cartridges were produced from the Lorha of house of accused Dildar and not from the house of the appellant. He has further argued that admittedly the village is thickly populated but none of the private person has been associated to act as Mashir. He has argued that there was no exclusive possession of the appellant/accused. He has further argued that according to the prosecution story when the appellant/accused volunteered to lead the police to his village, it was the duty of the police to arrange for the private persons. He has argued that the accused has already been acquitted in the main case and this is an off-shot of Crime No,130/1988. Mr. Isserdas, learned State Counsel has supported the prosecution case. ''I have heard the arguments of both the counsel and with their assistance have perused the entire record.
7. ' Accused Gulshan was arrested alongwith accused Manjhi in Crime No,130/1988 of Police Station, Shandadkot. While perusing the record, it reveals that vide Entry No,27, dated 12-11-1988, A.S.I. Javed Shah left the police station. First he reached the Village Shahbazi Chandio and according to the prosecution and Mashirnama, the property in question was recovered at 9.m. From the northern Lorha of accused Dildar's house whereas co-accused Manjhi was also with the police. The perusal of the Mashirnama, dated 12-11-1988 of Crime No,134/1988 wherein the same A.S.I. Registered case against accused Manjhi under section 13-E, Arms Ordinance, reveals that coactive Manjhi produced a gun, 3 live cartridges, Seiko wrist-watch and Rs,250 at 8-30 a.m. From the heap of fodder. In this case also witnesses are common and the Mashirnama was prepared at 8-30 a.m.
8. Admittedly it is the case of the prosecution that during the investigation in Crime No,130/1988 accused Gulshan and Manjhi who were in custody volunteered to produce the incriminating articles and led the police to village Shahbazi Chandio but in spite of that the Investigating Officer has violated the provisions of section 103, Cr.P.C. It is an established law that if the officer concerned is aware of the search beforehand, he should arrange for the private persons. Here not a single word has been uttered by the Investigating Officer as to whether he tried for the private person to act as Mashir. On the other hand the perusal of-the record reveals that he and Mashir P.C. Abdul Graford had given stereotype evidence in both the cases. Even the F.I.Rs, in both the cases being Crime No, 134/1988 and Crime No,135/1988 and Mashirnamas of recovery in both the cases are stereotype and identical. Reliance can be placed in this respect to a case Muhammad APam y. The State PLD 1996 SC 67 where it was held that section 103, Cr.P.C. Applied with full force when search is to be made of a place which is in an inhabited locality. If place is known where search is to be made and that place is situated in a locality which is inhabited by the people then it is necessary to join two or more respectable persons from that locality to witness the search. In other words, if the place to be searched is already known and is situated in a locality which is inhabited; then it becomes mandatory for the Police Officer to join witnesses from the locality in the investigation and make search and recovery in their presence. In this case also the appellant/accused was already in police custody in Crime No,130/1988 and according to prosecution he volunteered to produce the incriminating articles from a village, as such the police was aware of the place from where they had to make search, well in time. As such it was incumbent upon the Investigating Agency to join two or more respectable persons to witness the recovery which they have failed and no explanation whatsoever has been given. The prosecution has failed to establish the exclusive possession of the heap of fodder in the case of accused Manjhi while in the present case, it is stated that the incriminating were produced from the hedge of Dilawar house as such in both the cases exclusive possession is not there. Since the accused has been acquitted in the main crime and this is an off-shot of the above cited crime and prosecution has miserably failed to associate the private Mashir for the recovery and have violated the mandatory provision of section 103, Cr.P.C.