1. ABDUL HAMEED DOGAR, J --This Criminal Jail appeal is directed against the judgment dated 11-4- 1995 of learned Special Judge (Suppression of Terrorist Activities), Sukkur Division at Khairpur, whereby appellant Fathoo alias Fateh Muhammad was convicted and sentenced under section 13(e) of the Arms Ordinance for three years' R.I. And fine of Rs.5, 000 and in default m Payment of fine to suffer further R.I. For six months. The benefit under section 382-B, Cr.P.C. Was extended to the appellant in computation of his sentence.
2. The facts in brief for prosecution case are that on 5-11-1993 A.S.I Abdul Ghafoor Sahito of Police Station Wasti Jiwan Shah lodged F.LR on behalf of the State under section 13(e) of the Arms Ordinance against appellant stating therein that on spy information he alongwith his lower staff left police station to apprehend dacoit Ghulamoon Chachar and at 9-00 p.m. Law enforcing agency and S.H.O., Mirpur Mathelo alongwith their staff also arrived at police station, then all of them left police station and went to village Ahmad Chachar. They noticed the said Chulamoon Chachar coming out from the Otak of appellant Fathoo alias Fateh Muhammad, who seeing the police and law enforcing agency succeeded in escaping away in the nearby forest. Complainant Party encircled the whole village and they then entered into otak of appellant where they found six cots with beddings and saw five persons sitting thereon, who were apprehended in presence of Mashir H.C Muhammad Mithal and P.C. Mid Ran. On inquiry, they told the complainant party that Ghulamoon Chachar was sitting with them in the Otak and on seeing them he slipped away. The apprehended five persons disclosed their names to be Fathoo alias Fateh Muhammad (present appellant) Lutuf, Bahadur, Shahmir, Jammo Chachar by casts and from their personal search nothing was recovered. From the search of house of appellant, police recovered G-III Rifle from "Chappar" of his house. Appellant could not produce its licence, therefore, he was arrested in presence of above-named Mashirs and the case under section 13(e) of Arms Ordinance was registered against him. After usual investigation, the appellant was challaned under section 13(e) of the Ordinance in the Court of Special Judge, Suppression of Terrorist Activities, Sukkar Division at Khairpur.
3. A formal charge was framed against the appellant under section 13(e) of Arms Ordinance to which he did not plead guilty and claimed to be tried.
4. The prosecution, in order to prove the case, examined A.S.-I. Abdul Ghafoor (Investigating Officer) and H.C. Muhammad Mithal (Mashir).
5. With the assistance of Mr. Abdul Ghani Shaikh, Additional Advocate General, we have gone through the entire evidence recorded at trial and in order to appreciate and ascertain the factual position it is essential to discuss the same in the judgment.
6. The charge was framed against the appellant on 26-1-1994, showing the particulars that on 5th November, 1993 at 7-30 a.m. Appellant was found in possession of one G-III Rifle without licence from his Otak situated in village Ahmad Chachar in contravention of provisions of Arms Ordinance and thereby committed an offence punishable under section 13(e) of Arms Ordinance.
7. Complainant A.S.I. Abdul Ghafoor and H.C. Mithal have deposed before the Trial Court that they recovered one G-III rifle from the "Chhapar" of house of appellant and they do not remember the number of rifle. In their statements both of them have stated that one .12 bore gun was recovered from "Chhaper" of Otak of appellant. They, however, denied that the case has been concocted against the appellant at the instance of Asad Shah and Asghar Shah due to political rivalry with Noor Muhammad Lund, in whose favour appellant voted for in the election. The case of the prosecution brought on record through these two witnesses at the trial is contradicted both by the charge as well as statement of appellant recorded under section 342, Cr.P.C. The question No. l in the statement shows that on 5th November, 1993 at 7-30 arm. The appellant was found in possession of one G-III Rifle without licence from "Chhapar" of his Otak and thereby committed an offence under section 13(e) of the Arms Ordinance. There is hardly any doubt that the learned Trial Court started with the trial by framing charge against the appellant with different accusation. The allegation in the charge as well as statement under section 342, Cr.P.C. Was about recovery of one G-III Rifle from Otak of appellant, whereas the entire case of prosecution comprising of F.I.R., depositions of P.Ws. Abdul Ghafoor complainant and Mashir Muhammad Mithal contains the accusation that the said rifle, was secured from the "Chhapar" of house of appellant.
8. This evidence cannot be believed for the reason firstly that the learned Trial Court has proceeded with the trial without applying mind to the facts of the prosecution case and secondly, the alleged recovery has never been proved to have been made from the exclusive possession of the appellant Here whatsoever evidence has been collected against the appellant is that complainant party recovered one G-III Rifle from the "Chhapar" of the house of appellant which is in joint possession alongwith other inmates. Section 13 of Arms Ordinance reads as under:------ "13. Penalty for breach of sections 4, 5, 8 to 11.---Subject to the provisions of sections 13-A and 13-B whoever commits any of the following offences, namely:---
(e) has, in his possession or under his control any arms, ammunition or military stores in contravention of the provisions of section 9. "
9. Since a reference to section 9 of Arms Ordinance is made it is necessary to produce said section which is as under:--- "9. Unlicensed possession of arms, etc.---No person shall have in his possession or under his control any arms, or any ammunition or military stores, except under a licence and in the manner and to the extent permitted thereby."
10. From the evidence recorded at trial, admittedly neither recovery of rifle from exclusive possession of appellant, nor under his control is proved. Unless an accused is given an opportunity to explain the circumstances appearing against him in prosecution evidence, the same cannot be used against him. Not only this but the alleged recovery has been effected in clear violation of the rule laid down in section 103, Cr.P.C. For proper appraisal of evidence, reference be made to section 103 Cr.P.C.: "103. Search to be made in presence of witness. ---Before making a search under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do. "
11. This provision of law relates to the search of place, under which it is incumbent upon the officer or other person about to make search to call upon two or more respectable inhabitants of the locality in which the place to be searched is situated. In the present case none from the locality has been joined as a witness to the search of the house of appellant but two police officials accompanying the complainant party have been made as Mashirs.
12. It would not be out of place to mention here that this section merely requires an honest effort of the officer incharge to secure the presence of two respectable inhabitants of locality, but apparently not even a single attempt is made to this effect.
13. For the foregoing analysis of the evidence and reasons, we are of the view that the prosecution has not been able to prove its case beyond any shadow of doubt against the appellant. He is therefore acquitted of the charge giving him benefit of doubt. We accept the appeal and set aside the conviction and sentence passed against the appellant. He is in jail and shall be set at liberty forthwith if not required in any other case.
14. These are the reasons for the short order passed by us on 12-6-1996 whereby we had allowed the appeal, set aside the conviction and sentence and acquitted the appellant.