' JAWAID NAWAZ KHAN GANDAPUR, J.--- Appellant Yousaf Jan son of Mehtar Yousaf, aged about 43 years, resident of Hindal Langar Khel, Tehsil and District Lakki Marwat, was put on trial along with his wife Mst. Sarki Zara in the Court of Special Judge for Suppression of Terrorist Activities, Lakki Marwat (Mr. Abdul Rehman Khan, Sessions Judge) for having committed an offence punishable under section 13, Arms Ordinance.
2. The allegations against the appellant are that huge quantity of arms and ammunition was recovered from his house which was to be used for terrorist activities. Besides the appellant was allegedly found involved in the smuggling of contraband Charas.
3. The prosecution story, stated briefly, is that the local police on 5-10-1994 had received secret information that proclaimed offender by the name of Gull Rehman son of Akbar Khan resident of Navarkhel, Lakki had come to visit the appellant and was present in his house. Accordingly a raiding party was formed. It was headed by S.H.O. Inayat Ali Shah (P.W.3). The police party then raided the house of the appellant at 7-30 hours on 5-10-1994 in order to arrest the proclaimed offender.
4. Unfortunately, the proclaimed offender could not be found in the house. However, during the raid, when the house in question was searched, the following articles were allegedly recovered from it:--
(i) One Kalashnikov of 7.62 bore bearing No,4845.
(ii) Two stenguns of .30 bore each with magazines having 5 live cartridges each.
(iii) One .30 bore pistol No,AR 1484 with two magazines containing 5 lives cartridges each.
(iv) One dagger along with its sheath.
(v) 15 live cartridges of .32 bore.
(vi) 2 live cartridges of .303 bore.
(vii) 19 Kgs. Charas.
5. S.H.O. Inayat Ali Shah (P.W.3) took all the articles into his possession vide recovery memo.
Exh.P.W.2/1 in the presence of its marginal witnesses, D.F.C. No,5 Muhammad Zaman (P.W.2) and L.H.C. Abdul Mastan (not produced). Murasila Exh.P.A./1 was drafted by the S.H.O. (P.W.3) who sent the same to Police Station Lakki, where on its basis A.S.-I. Said Akbar Khan (P.W. I) registered the present case vide F.I.R. No,309 (Exh.P.A.) on the same day i,e, 5-10-1994.
6. Since the appellant was not present in the house, therefore, his wife Mst. Sarki Zara (acquitted accused) was arrested and warrants under section 204, Cr.P.C. And proclamation under section 87, Cr.P.C. Were obtained against the appellant. After a few days (18 days), the appellant was also arrested.
7. The usual police investigation was completed and both the accused were sent up for trial before the Special Judge, Lakki Marwat. He charged both of them for having committing an offence punishable under section 13, Arms Ordinance. The charge was framed on 24-4-1994 against the appellant as well as his wife (acquitted accused) which was read over and explained to them. Both of them pleaded not guilty and claimed' trial.
8. The prosecution, in order to prove its case, produced the following witnesses:-- ' A.S.-I. Said Akbar Khan, Police Station Lakki Marwat (P.W.1). Head Constable Muhammad Zaman (P.W.2).
' S.H.O. Police Station Lakki Inayat Ali Shah (P.W.3).
9. After the close of the prosecution case, the appellant as well as the acquitted accused were examined under section 342, Cr.P.C. Both of them claimed innocence and stated that they had been falsely involved in the case. The Special Judge by his judgment, dated 30-6-1995 acquitted Mst. Sarki Zara while the appellant under section 13, Arms Ordinance was convicted and sentenced to undergo three years' R.I. The benefit of section 382-B, Cr.P.C. Was however, extended to him.
10. Dissatisfied by the impugned judgment, the appellant has preferred this appeal for the redress of his grievance and has challenged the legality/validity of the conviction/sentence awarded to him.
11. We have heard Mr. Dost Muhammad Khan, Advocate, learned counsel for the appellant and Mr. Muhammad Khan Khakwani, Advocate, the learned counsel for the State and have also gone through the record of the case with some degrpe of care.
12. It is an admitted fact that the appellant was not present in the house when the arms and ammunitions in question were allegedly recovered from his house by the complainant S.H.O.
(P.W.3). The learned counsel for the appellant vehemently contended that the S.H.O. Had received a prior information about the presence of the proclaimed offender in the house of the appellant and had decided to raid the house to arrest him, therefore, in the circumstances, he was bound to have associated two respectable persons of the locality with the search/ raid of the house, in accordance with the mandatory provisions as laid down in section 103, Cr.P.C. According to him, it was quite evident from the prosecution evidence that the appellant was not. Available in the house when the arms and ammunitions, mentioned in para. 4 above, were allegedly recovered from his house. Similarly, it is a fact, established by the prosecution evidence, that before carrying out the search of the house of the appellant, the complainant S.H.O., who also happens to be an Investigating Officer, had not associated two respectable persons of the locality during the course of the search/raid in question. It would, therefore, follow that the prosecution of the arms and ammunitions, allegedly recovered from the appellant's house, could not be proved as it could not be established, beyond reasonable doubt, that it was he who had kept the said arms and ammunitions there. The search of the premises was also carried out in the absence of the appellant in violation of the mandatory provisions of section 103, Cr.P.C. The same, to our mind, was therefore, absolutely illegal. We are accordingly of the view that the appellant did not deserve to be convicted/sentenced on the basis of this evidence.
13. The matter does not end here. The Special Judge, on the basis of the same evidence, while extending the benefit of doubt, acquitted Mst. Sarki Zara co-accused who was at least present at the time of the raid in the house. However, the trial Court on the basis of same evidence convicted the appellant, who at the relevant time, was not at -all present there. We are, therefore, of the Ig opinion that the conviction/sentence of the appellant, on this score too, cannot be upheld.
14. This appeal is accepted. The conviction and sentence of the appellant, as recorded by the Special Judge vide his judgment, dated 30-6-1995, is set aside. The appellant is acquitted and shall be released forthwith if not required in C any other case.
15. Needless to mention that the appellant, on the basis of this very evidence has already been acquitted by the Federal Shariat Court vide judgment, dated 12-11-1995 delivered by His Lordship Mr. Justice Nazir Ahmad Bhatti in Criminal Appeal No,152/1 of 1995, for having committed an offence punishable under Article 3/4, Prohibition Order.
16. These are the reasons for our short order, dated 13-3-1996.