' FAZAL-UR-REHMAN, J.--- This criminal appeal has been preferred against the judgment, dated 31- 8-1999 passed by the learned Additional Sessions Judge-V, Suppression of Terrorist Activities, Quetta, by which he convicted the appellant for the offence under section 13-E of the Arms Ordinance, 1965 and sentenced to suffer R.I. For three years. The benefit of section 382(b), Cr.P.C.
Was also extended to the appellant.
2. On 4-2-1999 at about 10-30 p.m., the staff of C.I.A. Under the supervision of Abdul Majid Mandokhail, D.S.P. C.I.A. And Javed Mengal, E.A.C,-V raided the house of the appellant located in Killi Kamalo. It is stated that on receipt of certain spy information regarding dealing in arms and ammunition business and availability of same in the house of one Dhadar Khan located in Killi Kamalo Sariab Road, Quetta formed a raiding party consisting of Aziz-ul-Mulk Mengal, 1.P., C.I.A.
Amanullah, S.-I., Muhammad Akram, S.-I., Fareed Ahmed, S.-I. And other police personnel and headed by Shahban Ali, I.P./S.H.O. It is stated that as a result of search of the house one kalashnikov and magazine of which contained 25 rounds was found lying near the bed and taken into possession. It was also alleged that one bag containing one magazine and 25 rounds of kalashnikov was also found lying near the bed for which he could not produce any permit or licence and the same were taken into possession vide recovery memo. Exh.P.1/A. The Seizing Officer, Shahban Ali, then wrote a Murasila Exh. P .1/B which was incorporated in the F.I.R. Being Crime No,8 of 1999 Police Station Shalkot, Quetta under section 13-E of the Arms Ordinance. After usual investigation the accused/appellant was sent up to face his trial.
3. On 21-4-1999, charge under section 13-D of Arms Ordinance, 1965 was framed by the learned Special Judge against the appellant to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution examined four witnesses. In his statement recorded under section 342, Cr.P.C., the appellant has disputed the case of the prosecution and pleaded his innocence. When asked as to why the prosecution witnesses had deposed against him to which he stated before the trial Court that the witnesses had deposed falsely at the instance of Abdul Majid Mandokhail. He has also made his statement on oath and has stated that he was arrested from Uzbak Bazar by the police and no recovery of kalashnikov and cartridges has been effected from him. He has also produced D.Ws. Asadullah and Dawood in his defence, whose statements are to the extent that the accused was arrested from Uzbak Bazar and taken by the police in a vehicle.
5. The learned Special Judge after assessment of the evidence has convicted the appellant and sentenced in the manner hereinabove mentioned.
6. P.W.1 Shahban Ali who is the Seizing Officer has deposed that on the receipt of secret information he had informed Javed Mengal, E.A.C.-V. Who came to C.I.A. Centre. He further stated that the C.I.A.
Staff under the supervision of D.S.P., Abdul Majid Mandokhail and in the presence of E.A.C.-V. Raided the house of the accused wherefrom the recovery was effected. P.W.2 Fareed Ahmed who was also a member of the raiding party acted as Mashir of the recovery memo. Exh.P.1/A. P.W.3 Javed Ahmed who was at the relevant time posted as E.A.C.-V. Accompanied the raiding party which laid down a raid upon the house of the appellant and had attested recovery memo. Exh.P.1/A. P.W.4 Muhammad ,Akram is the Investigating Officer and was also a member of the raiding party.
According to him recovery of the kalashnikov was effected from beneath the beddings in the residential room of the accused. During investigation he had recorded statements of witnesses and prepared site plan. On completion of investigation he had handed over the file to S.H.O. Shalkot for submission of challan who put challan Exh.P.4/A.
7. The learned trial Judge while passing an order of conviction against the appellant expressed himself in the following terms:-- "P.Ws. Are firm and they have not been contradicted and shaken. P.Ws. Successfully faced lengthy cross-examination. P.W.1 and P.W.2 are eye-witnesses. They were included in the raiding party and the raid was conducted in the presence of P.W.1 and P.W.2. P.W.1 seized kalashnikov and 150 live cartridges from accused's residential room. P.W.2 corroborated P.W.1. Women and children were present in the house at the time of raid but no male member was present except accused. This is admitted fact that no proof regarding ownership of the house has been obtained by P.Ws. But recovery was made from the premises where the accused was present. The evidence shows that the P.Ws. Did not make efforts for compliance of provisions of section 103, Cr.P.C. However, in the circumstances, the same is not fatal for prosecution case, because no enmity or motive has been alleged to the P.Ws. All the P.Ws. Are police officials, in the circumstances they are competent to depose. The raid was conducted in the presence of P.Ws. He attested Exh.P.1/A. P.W.4 was also present at the place of occurrence, he corroborated P.W.1, P.W.2 and P.W.3. He stated about the presence of P.W.1, P.W.2 and P.W.3 at the place of occurrence. Presence of P.Ws. Has not been denied by the defence. The defence plea is very weak and this does not create any doubt or dent in prosecution's case hence this is not reliable. No question was put in the mouth of P.Ws. That the recovered arms and ammunition are not serviceable. In the circumstances the prosecution has established recovery from the premises where the accused was present i,e, accused's residential room. All the P.Ws. Stated that the accused failed to produce any licence or permit for his possession. In the result, this point is resolved in affirmative as the prosecution has successfully established the recovery beyond any reasonable doubt from the possession of accused."
8. We have heard Mr. Aamir Afridi, Advocate, learned counsel for appellant and Mr. Shakil Ahmed, Advocate, learned counsel for the State.
9. The main contentions put forth on behalf of the appellant are that there are non-compliance of the provisions of sections 103 and 165, Cr.P.C. Abdul Majid Mandokbhail, D.S.P. Was not produced by the prosecution and the application which was filed on behalf of the appellant under section 540, Cr.P.C. Was turned down on the same day without any notice, there are contradictions which make the prosecution case doubtful. On the other hand learned counsel representing the State has supported the judgment.
10. We do not agree with the view of learned trial Court that noncompliance of provisions of section 103, Cr.P.C. In the circumstances of the present case is not fatal for prosecution's case. It is an admitted position that no efforts were made to secure two Mashirs from the public. It is also an admitted position that the C.I.A. Staff had prior information regarding arms and ammunition and recovery was not to be effected in connection with another case as weapon of offence and it was also possible to have two Mashirs from the locality where recovery was made but no efforts were made, therefore, in the circumstances the testimony of the police personnel in the absence of other reliable piece of evidence was not warranted for conviction. Although in his examination under section 342, Cr.P.C. The appellant has categorically stated that the witnesses had deposed falsely at the instance of Abdul Majid Mandokhail but neither Abdul Majid Mandokhail, D.S.P. Was produced by the prosecution nor the application which was moved by the appellant under section 540, Cr.P.C. Was allowed by the trial Court which has caused prejudice to the accused.
11. Having considered the submissions of the learned counsel and following the principles laid down in the authority reported in PLD 1997 SC 408, we are of the view that the recovery effected in the instant case is doubtful and the prosecution evidence cannot be relied upon for the conviction of the appellant. The judgments of this Court in Criminal Appeal No,314 of 1998 and Criminal Appeal No,154 of 1999 relied upon by the learned counsel for the appellant are also applicable to the case in hand.
12. For the foregoing reasons, we feel inclined to hold that the prosecution has failed to prove its case beyond a reasonable doubt against the appellant and he is entitled to acquittal by extending the benefit of doubt. We, therefore, allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. Dhadar Khan son of Muhammad Yagoob, appellant be set at liberty forthwith if not required in any other case.