1. MUHAMMAD NASEEM CHAUDHRI, J.---This appeal is directed against the judgment dated 17-1-1996 passed by the Judge, Special Court No,III, Suppression of Terrorist Activities, Lahore Division, Lahore whereby Muhammad Hussain alias Tedi appellant son of Noor Muhammad, Caste Khokhar, resident of Hanjarwal, Lahore was convicted and sentenced to R.I. for a period of seven years and to fine of Rs,25,000 or in default of its payment to further R.I. for a period of one year under section 13 of the Arms Ordinance XX of 1965.
2. The facts giving rise to this appeal are that Muhammad Hussain alias Tedi appellant was an accused of case F.I.R. No,422 registered on 22-11-1994 at Police Station Hanjarwal, Lahore under section 324/148/149, P.P.C. He was under arrest on 8-7-1995 when during the investigation in the presence of Muhammad Siddique A.S.I. P.W.1 and other police officials he is said to have imparted the information to the Investigating Officer Muhammad Hussain S.I. to the effect that he had concealed the Kalashnikov used during the aforesaid occurrence in the house of Muhammad Tufail son of Barkat Ali caste Khokhar resident of Ghang Sharif and that he could lead to the recovery of the same. On 8-7-1995 Muhammad Hussain alias Tedi appellant is said to have led to the recovery of Kalashnikov P.1, loaded with 20 bullets P.2/1-20 from the house of the aforesaid Muhammad Tufail lying in an iron-box in the room of the house which was taken into possession vide memo. Exh.P.A. attested by Muhammad Siddique A.S.I. Muhammad Hussain S.I. P.W.2 sent complainant Exh.PB at Police Station Hanjarwal where formal F.I.R. Exh.PB/1 was drafted. He prepared the site plan Exh.PC of the place of recovery situated in the house of Muhammad Tufail.
2. After completing' the investigation the challan was submitted.
3. 3.Muhammad Hussain alias Tedi appellant was charged under section 13 of the Arms Ordinance XX of 1965 who pleaded not guilty thereto. At the trial Muhammad Siddique A.S.I. and Muhammad Hussain S.I. stood in the witness box who supported the prosecution case. When examined under section 42 of the Code of Criminal procedure the appellant claimed to be innocent and termed the aforesaid recovery as false and concocted. He did not claim the ownership of Kalashnikov and bullets. He did not choose to appear in person in his own defence on oath under section 340(2), Cr.P.C. However, he produced Hakam Ali D.W.I who stated that the police party did not visit the house of his neighbourer Muhammad Tufail alongwith Muhammad Hussain alias Tedi appellant.
4. 4.After hearing the arguments the learned trial Court placed reliance on the statements of Muhammad Siddique A.S.I. P.W.1 and Muhammad Hussain S.I. P.W.2 and holding that the factum of recovery of illicit arms having beeh proved beyond reasonable doubt, convicted Muhammad Hussain alias Tedi appellant as narrated above who has preferred this appeal which has been resisted by the State.
5. 5.We have heard the learned counsel for the appellant as well as the learned State counsel and gone through the record before us. The contentions of the learned counsel for the appellant are that no person from the neighbourhood of Muhammad Tufail from whose house the appellant is said to have led to the recovery of illicit arms was joined at the alleged time of occurrence and that the mandatory provisions of section 103, Cr.P.C. have been violated. He added that the place of recovery was the house of Muhammad Tufail which was neither owned by nor under the exclusive possession of the appellant and the alleged recovery from the same has no legal force. He maintained that Muhammad Hussain alias Tedi appellant has been convicted and sentenced without any legal justification. On the contrary learned counsel for the State laid the emphasis that both Muhammad Siddique A.S.I. P.W.1 and Muhammad Hussain S.I. P.W.2 are respectable police officers and that their statements had rightly been relied upon by the trial Court for the conviction of the appellant who is criminally liable in the matter.
6. 6.We would express that the reasoning adopted by the learned counsel for the appellant has to prevail. The recovery of the illicit arms attributed to Muhammad Hussain appellant has not been effected in any Nakabandi or after having been surprised and apprehended on secret information.
7. He was admittedly arrested in Crime Case No,442 dated 22-11-1994 registered at Police Station Hanjarwal, Lahore under section 324/148/149, P.P.C., who was interrogated and during that process is said to have imparted the information that he could lead the recovery of the 1alashnikov. Such type of recovery is relevant under Article 40 of Qanoon-e-Shahadat Order, 1984 and has to be proved in accordance with law keeping in view the mandatory provisions of section 103, Cr.P.C. wherein there is use of word "shall call" two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search. No evidence has been produced to make out that Muhammad Hussain S.I. made any effort to call or to join any person from Mauza Ghang Sharif the recovery proceedings wherein Muhammad Hussain alias Tedi appellant is said to have led to the recovery of illicit arms. It means that the alleged recovery is violative of the mandatory provisions of section 103, Cr.P.C.
8. 7.At this stage. We have to express that the Registrar Supreme Court of Pakistan, Rawalpindi addressed a letter dated 20-8-1990 to the respective Inspector, General of Police, Punjab, Sindh, N.- W.F.P. and Balochistan, a copy of which was sent to all the District and Sessions Judges in the Province of the Punjab by the Registrar, Lahore High Court, Lahore. The aforesaid letters are reproduced in Coto as under:-- "J. B. 32-R(S)/88-SCJ Supreme Court Of Pakistan Rawalpindi, August 20, 1990 From The Registrar, Supreme Court of Pakistan, Rawalpindi.
9. To (1)The Inspector-General of Police, Punjab, Lahore.
10. (2)The Inspector-General of Police, Sindh, Karachi.
11. (3)The Inspector-General of Police, N.-W.F.P. Peshawar.
12. (4)The Inspector-General of Police Balochistan Quetta. Subject: <u>Witnesses of Recovery in Criminal Cases.</u> Dear Sir, It has come to the notice of this Court that in a large number of criminal cases, the witnesses of recovery are from the police force and that the Police Officers concerned when appearing before the Court are often unable to give satisfactory explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-official witnesses in such cases should be impressed upon all concerned.
13. 2.The Court has also directed in this context that the Courts should also examine two aspects of the issue in such cases. Is there a plausible explanation for not associating witnesses from the public; and whether some features of the cases in addition to the ocular account given by the police officials support the prosecution version when denied by the defence.
14. 3.It is requested that the above orders of this Court should be brought to all concerned for strict compliance.
15. (Sd.)
16. (M.A. LATIF)
17. Lahore High Court, Lahore No,17712-Gen1/1-G Dated Lahore the 20th December, 1990 From The Registrar, Lahore High Court, Lahore.
18. To All the District and Sessions Judges in the Province of Punjab.
19. Subject: Witnesses of Recovery in Criminal Cases.
20. Sir, I am directed to forward herewith a copy of Letter No,J.P. 32-R(S)/88- SCJ, dated 20-8-1990 received from the Registrar, Supreme Court of Pakistan, Rawalpindi, on the subject noted above, for information and strict compliance by all concerned.
21. Your Obedient Servant, (Sd.)
22. Deputy Registrar (Admn), for Registrar.
23. Endst: No,17713 Genl/I-G, dated Lahore the 20th December, 1990. A copy is forwarded for information to:-- The Registrar, Supreme Court of Pakistan Rawalpindi, with reference to his Letter No,J.P. 32-R(S)/88- SCJ, dated 20-8-1990.
24. (Sd.)
25. Deputy Registrar (Admn), for Registrar."
26. 8.The aforesaid directions issued by the Supreme Court of Pakistan have to be complied with by all the Police Officers of all the ranks and they cannot be ignored thereof. I have to express that this Court is also bound to follow the instructions mentioned in the aforesaid letter dated 20-8-1990. If the directions contained in the aforesaid letter are not complied with, the recovery of the instant nature need not be given the legal weight and legally the accused involved in the matter shall derive the legal benefit. There being no plausible explanation in not associating the witnesses of the recovery from public available at the time of the alleged recovery, it is enough to make out that the alleged recovery of illicit arms from Muhammad Hussain alias Tedi appellant is false and concocted.
27. 9.The house from which the Kalashnikov and the bullets are alleged to have been recovered was owned and possessed by Muhammad Tufail situated in Mauza Ghang Sharif. It means that the house was not owned and possessed by Muhammad Hussain alias Tedi appellant. There is no evidence on record to make out that the Kalashnikov was lying concealed within the exclusive knowledge of Muhammad Hussain alias Tedi appellant in the iron box lying in the room of the house of Muhammad Tufail which could be visited by Muhammad Tufail and his family members. It means that the exclusive possession of the illicit arms by Muhammad Hussain alias Tedi appellant was not established. It has been commanded by the Hon'ble Supreme Court of Pakistan in Arif Ali v.
28. Muhammad Ramzan alias Janan and 4 others (1991 SCM R 331) that the recovery made from a place accesable to everyone in the house could not be used as a corroborative evidence. It is proper to express that this judgment has been announced in a murder case. If such a recovery cannot prove to be a corroborative piece of evidence, how the same can be basis of the conviction in the original case of recovery of the illicit arms wherein the charge is under section 13 of the Arms Ordinance XX of 1965. It has been held in Iftikhar alias to Gutto and another v. The State (1994 M LD 988) that the recovery of the illegal firearm from a house which is neither in the ownership of an accused nor in his exclusive possession has no legal force which has not to be relied upon and the appellant of the aforesaid case convicted under section 13 of the Arms Ordinance XX of 1965 was acquitted. The idea behind the aforesaid reasoning is that any item lying in the house of a stranger Muhammad Tufail, cannot be held to be in possession of Muhammad Hussain alias Tedi appellant and the alleged type of recovery, as such, cannot be given any weight to make the appellant criminally liable.
29. 9.We are tempted to express that no doubt all the police officers of all ranks are respectable persons. However, the law of the land has to take its course. To exemplify the confession of an accused person before the police officer is inadmissible in evidence under Article 38 of Qanoon-e- Shahadat Order, 1984. This case is covered by Article 40 of the said Order, 1984 and the recovery had to be established in accordance with law as expressed above about which we have no hesitation to hold that the prosecution has miserably failed.
30. 10.The only irresistible conclusion which can be drawn from the aforesaid state of affairs, analysis of evidence and discussion would be that the recovery of illicit arms attributed to Muhammad Hussain alias Tedi appellant has no legal force so as to make him criminally liable for the charge framed against him under section 13 of the Arms Ordinance XX of 1965 who, as such, is entitled to be acquitted. We hold that Muhammad Hussain alias Tedi appellant is innocent and express that he has been falsely involved in this false case.
31. 11.We, therefore, accept this appeal, set aside the impugned judgment and acquit Muhammad Hussain alias Tedi appellant. He shall be set at liberty forthwith, if not required to be detained in any other case.