CH. KHURSHID AHMAD, J.----The appellant was arrested in case FIR No.181/94 registered at Police Station Delhi Gate, Multan on 21-8-1994 under section 13-A of the Arms Ordinance (XX of 1965), was tried by the Judge, Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, Bahawalpur and Multan Divisions, Multan, and was convicted on 28-5-1995 under section 13 of the Arms Ordinance (XX of 1965) and sentenced to suffer 7 years' R.I. And to pay a fine of Rs. One lac or in default of payment of fine to undergo further R.I. For two years. He was given the --benefit of section 382-B, Cr.P.C. The kalashnikov etc, the case property, were ordered to be confiscated to the State after the period of appeal. The appellant filed the present appeal against the said judgment of conviction.
2. According to the complaint Exh.PA drafted by Saeed Anjum SI/SHO P.S. Delhi Gate, Multan the appellant was in police custody in connection with investigation of case FIR No.329/94 registered at Police Station Cantt. Multan under section 395/411, P.P.C. During the investigation he made disclosure and led to the recovery of kalashhikov P.1, one magazine containing 7 live bullets P.2/1-7, a silencer P.3 and 20 live bullets P.4/1-20 found in the magazine of the kalashnikov on unloading, from his house situated in Mohallah Mori Thatha from an iron box lying in a Chhappar, on the roof of his house. The complaint was sent to the police station through Abdul Ghafoor Constable No.534 for formal registration of the case where Zaman Khan, M.H.C. Registered formal FIR Exh.PA/1. The illicit arms etc were secured vide memo. Exh-PB which were witnessed by Nazar Hussain, ASI, Delhi Gate and Imtiaz Ahmad, HC, P.S Delhi Gate as marginal witnesses. The investigating officer also prepared rough site plan of the place of recovery Exh.PB/1 and sent up the case for trial. The accused was charged under section 9 read with section 13 of the Arms Ordinance, 1965 on 5-4- 1995. The charge was put to the accused who pleaded not guilty and claimed trial.
3. At the trial the prosecution produced Muhammad Zaman Khan HC/PW.1 who had, on receipt of complaint Exh.PA registered formal FIR Exh.pA/1. Nazar Hussain, ASI P.W.2 was the witness of recovery and had also signed the recovery memo. As marginal witness. Saeed Anjum SI/SHO appeared as p.W.3 and stated the facts as contained in Exh.PA, the complaint drafted by him. The prosecution gave up Imtiaz Ahmad HC P.W. As unnecessary on 10-4-1995. And the prosecution case was closed on 12-4-1995. The accused was examined under section 342, Cr.P.C. He claimed innocence and did not offer to appear as his own witness to disprove the case of the prosecution under section 340(2), Cr.P.C. He, however tendered in evidence a voters' list Exh.DA, showing the name of the accused, Voters' List Exh.DB showing the name of Talib Hussain, certified copy of Cr.M.No.324-H-94 Exh.DD, certified copy of the order dated 18-8-1994 Exh.DD, certified copy of the order dated 25-9-1994 Exh.DF, certified copy of the order Exh.DG, certified copy of the report of the Bailiff Eidt.DH, certified copy of letter of S.P. To the Deputy Registrar of the High Court, Multan Bench Exh.DJ, certified copy of writ petition Exh.DK and certified copy of the order of the High Court dated 5-4-1995 Exh.DL and closed the defence.
4. We have heard the learned counsel for the appellant and have given our anxious consideration to the facts of the case, the defence of the appellant and the contentions of the learned counsel appearing on behalf of the State.
5. It was stated by P.W.3 Saeed Anjum SI/SHO in cross-examination that the appellant was arrested under section 54, Cr.P.C. In suspicious circumstances on 15-8-1994. He stated that immediately after his arrest he came to know that he (appellant) had committed robbery at the house of one doctor and by the order of S.P., City Multan, file of case FIR No.329/94 was entrusted to him on the same night and that he formally arrested the appellant in the above case on the same night at 12-
30. The case of dacoity was registered at Police Station Cantt. Multan. The witness admitted that he had informed S.P., City Multan, after the arrest of the accused and thereafter investigation of case FIR No.329194Police Station Cantt, was entrusted to him. He had conveyed full particulars of the appellant to S.P. City Multan. During the investigation the appellant was on Physical remand and under his custody for 15 days, It was volunteered by the witness that on 19-8-1994 the appellant got recovered a mauser pistol. The witness however denied that any writ petition was filed by a cousin of the appellant against SHO, P.S. Cantt Multan and SHO. CIA Staff, Multan on 18-8-1994. He denied that he had any knowledge if SHO. P.S. Cantt and SHO, CIA stated in the High Court that they did not know about the whereabouts of Umar Daraz appellant. He denied that the alleged recoveries were planted against the appellant in order to take revenge for filing Cr.M.No.324-H/94.
6. On reference to Exh.DC, the Habeas Corpus petition, we found that the same was filed on 18-8- 1994 and the same day a Bailiff was deputed by the Court to recover the detenu (Umar Daraz) and he produced him before the Court on 22-8-1994. On 22-8-1994 Raj Meer Khan SHO, P.S. Cantt. And Nazir Ahmad, Inspector CIA appeared in the High Court. Both of them denied that Umar Daraz (appellant) was in their custody. They stated that they never called him in any case nor they were aware of his whereabouts. The Court was referred to Daily Nawa-e-Waqt, Multan and Daily Khabrain, Lahore of 17-8-1994 wherein S. S. P.', Multan was stated to have disclosed in Press Conference that the police had, amongst others, arrested Umar Daraz as foreign trained terrorist.
S.S.P., Multan was, thereafter, ordered to file his report on or before 5-9-1994. S.S.P., Multan filed his report which is Exh.DJ. According to the said report Umar Daraz appellant was arrested on 15-8- 1994 at 11 a.m. By Saeed Anjum, SI/SHO under section 54, Cr.P.C. While the latter was travelling in suspicious circumstances on a Yamaha motorcycle without any number plate. Recoveries were made from him which were secured under section 550, Cr.P.C. And arrest of the appellant was shown at No.22 of Roznamcha of the police station on 16--8-1994, at 2-15 a.m. According to the report the investigation of case F.I.R. No.329/94 was entrusted to Saeed Anjum, SI/SHO P.S. Delhi Gate, Multan on telephone by S.P., City Multan. On 17-8-1994 Umar Daraz was produced before the City Magistrate and physical remand till 21-8-1994 was obtained for the purpose of investigation of the case. The case of recovery of unlicensed mauser alongwith a silencer was registered as F. I. R.
No.178/94 on 19-8-1994 at P.S. Delhi Gate on 19-8-1994.
7. There is a very clear contradiction in the statement of SHO, Police Station, Multan Cantt made in the Habeas Petition and the report Exh.DJ filed by SSP, Multan. Case F.I.R. No.329/94 was registered at Police Station Cantt Multan. The file of the said case, if transferred to Police Station Delhi Gate for investigation, the SHO, Multan Cantt was supposed to have the knowledge thereof. The detention of the appellant was denied on the one hand by the SHO, Multan Cantt. And was being given publicity by SSP in newspapers. This creates suspicion in our mind that the respondents in the Habeas Petition were intentionally withholding an important information from the High Court which requires deprecation. There is yet another important respect of the case. The kalashnikov etc. Were allegedly recovered at the instance of the appellant on 21-8-1994 and in case the said recovery was in fact made during investigation of FIR No.329/94, the SHO, Police Station Cantt Multan must have received information before appearing in Court on the following day.
8. The attitude of the police officers in habeas petition was also contradictory to the Press Conference held by SSP, Multan who had informed the Press Conference that` Umer Daraz (appellant) was arrested. The press statement was published in daily ' Khabrain' , Lahore and daily '
Nawa-e-Waqt' , Multan. The circumstance as to why the information was withheld from the High Court is shrouded in mystery and mala fide of the police was patent. There was no harm in informing the High Court on 22-8-1994 that recovery of kalashnikov had been effected from Umer Daraz (appellant).
9. One Khalid Mehmood, an alleged witness to the taking in possession of articles, under section 550, Cr.P.C., had filed W.P.No.1793/95. He had expressly stated that the said articles were not taken into possession by the police in his presence from Umer Daraz (appellant). Copy of the said writ petition is on file as Exh.DK.
10. The particulars of the appellant given in the Exh.PA were the same as were given in voters' list brought on the file as Exh.DA but P.W.3 had also mentioned "presently residing at Mohallah Chhak Moori Thatha Delhi Gate". None of the witnesses of the prosecution has stated that the appellant was in fact residing at the place from where the kalashnikov etc. Were recovered. This fact could only be proved if P.W.3 had joined some respectables of the locality who could have deposed about the factum of residence of the appellant in the said Mohallah, within the jurisdiction of Police Station Delhi Gate. The SHO, Delhi Gate was also obliged under the provisions of section 103, Cr.P.C.
To call upon two or more respectable inhabitants of the locality in which the place to be searched was situated to attend and witness the search. Under subsection (2) of section 103, Cr.P.C., it was mandatory for the search to be conducted in the presence of such witnesses and the recovery memo. Was to be prepared in their presence and was to be signed by such respectables though any person witnessing a search was not required to attend the Court as a witness for the search unless specially summoned by it. In the present case the appellant was statedly on physical remand with P.W.3 and the disclosure was made by him. As to why two respectables of the locality from where kalashnikov etc. Were recovered were not made to attend the search and sign the recovery memo, is inexplicable. The act of the investigating officer in not joining the two respectables at the time of search is violative of the mandatory provisions of section 103, Cr.P.C.
11. In view of what has been discussed above, we are of the view that the prosecution has failed to raise reasonable suspicion that the appellant had committed the offence for which he was convicted and rather we are convinced that he has disproved the allegation in the circumstances of the case.
12. The appellant is given benefit of doubt and the conviction recorded by Judge, Special Court for Suppression of Terrorist Activities, Bahawalpur and Multan Divisions against the appellant on 28-5- 1995 is set aside and the appeal is accepted.
13. The appellant shall be released forthwith if not detained in any other criminal case.