1. ' Present appeal is called in question the illegality and irregularity of the judgment date 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. ' The prosecution case in brief as stated in F.I.R. Being Crime No,134/1988 registered by A.S.I. Of Police Station, Shandadkot is that during the course of investigation of Crime No,130 of 1988 registered on 23-10-1988 under section 17(3), Hudood Ordinance at Police Station, Shandadkot and during the investigation of the above cited crime, accused Manjhi volunteered to produce the incriminating arms and ammunition used in the above cited crime. As such the Investigating Officer alongwith his subordinate staff arrested accused Manjhi after making an entry at Serial No,27 on 12-11-1988 at 8-20 a.m. In Roznamcha of Police Station, Shandadkot. Accused Manjhi then led the Police party to the fodder which was lying in front of his house situated in village Shahbazi Chandio and from the heap of said fodder accused Manjhi took out a gun, three live cartridges, one Seiko Wrist watch and Rs,250. It is the case of the prosecution that Investigating Officer demanded the licence of the gun which he failed to produce, as such the same was secured under a Mashirnama and the Investigating Officer brought the secured incriminating gun, 3 live cartridges, Seiko wrist watch and Rs,250 to the Police Station, Shandadkot and lodged his report being Crime No,134 of 1988 under section 13-E, Arms Ordinance and after usual investigation, challaned the accused.
3. ' Prosecution to establish its case against accused Manjhi examined two witnesses P.W.1 A.S.I. Javed Shah Exh. 5 who produced the Mashirnama of recovery as Exh.6. He also produced the entry of the Roznamcha at Serial No,27 dated 12-11-1988. He also produced F.I.R. Being Crime No,134 of 1988 under section 13-E, Arms Ordinance as Exh.7. P.W.2 PC Abdul Ghafoor as Exh.8. Prosecution closed its side by statement as Exh.9. Statement of accused was recorded under section 342, Cr.P.C. As Exh. 10 in which the accused 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 accused Manjhi was found to be having in his possession/under his control one unlicensed single-barrel gun of .12 bore and 3 live cartridges thereof which he, while being in custody recovered on 12-11-1988 at about 8-30 a.m from the fodder lying in front of his house situated in village Shahbazi Chandio and produced the same before police which secured the same under a Mashirnama ?"
5. ' I have heard Mr. Aftab Ahmed Gorar, Advocate for the appellant and Mr. Isserdas for the State.
6. ' The main contention of Mr. Gorar is that initially the accused was arrested in Crime No,130 of 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, wrist watch and Rs,250 were produced from the fodder which according to prosecution was lying in front of the house of the appellant. He has further argued that the prosecution has failed to examine or establish as to whose fodder it was and in whose land the fodder was lying. The prosecution has simply said that the incriminating articles were produced from the fodder lying in front of 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-shoot of Crime No,130 of 1988. Mr. Isserdas learned State Counsel has supported the prosecution case.
7. ' I have heard the arguments of both the counsel and with their assistance have perused the entire record.
8. ' Accused Manjhi was arrested alongwith accused Gulshan alias Gulsho in Crime No,130 of 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. Firstly he reached the village of accused Manjhi and according to the prosecution and Mashirnama, the property in question was recovered at 8-30 a.m. From the heap lying in front of the house of the appellant/accused whereas co-accused Gulshan alias Gulsho was also with the police. The perusal of the Mashirnama dated 12-11-1988 of Crime No,135 of 1988 wherein the same ASI registered case against accused Gulshan alias Gulsho under section 13-E, Arms Ordinance, reveals that co-accused Gulshan produced one .12 bore gun alongwith four cartridges at 9 a.m. From the hedge of Dildar. In this case also witnesses are common and the Mashirnama was prepared at 9 a.m. But surprising enough the distance has not been shown between the two villages as to how for the village Shahbazi Chandio is from the village of accused Manjhi. Admittedly it is the case of the prosecution that during the investigation in Crime No,130 of 1988 both the accused Manjhi and Gulshan who were in custody volunteered to produce incriminating articles and led the police to their respective villages but in spite of that the Investigating Officer had 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 person.
9. 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 Ghafoor has given stereotype evidence in both the cases. Even the F.I.Rs, in both the cases being Crime No,134 of 1988 and Crime No,135 of 1988 and Mashirnamas of recovery in both the cases are stereotype and identical. Reliance can be placed in this respect to a case Muhammad Azam v. The State PLD 1996 SC 67 where it was held that section 103, Cr.P.C. Applies 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 of 1988 and according to prosecution he volunteered to produce the incriminating articles from his 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 as according to the prosecution, it was lying in front of the house of the appellant/accused Manjhi. While in case of Gulshan alias Gulsho, it is stated that the incriminatings were produced from the hedge of Dilawar's 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.
10. ' I have already acquitted appellant/accused by my short order dated (c 29-2-1996 and these are the reasons for the same.
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