FAZAL-UR-REHMAN, J.--This is an appeal against the judgment dated 1-7-1999, passed by the learned Additional Sessions Judge-V/Special Judge, 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 3 years. The benefit of section 382-B, Cr.P.C. Has also been granted to the appellant.
2. Briefly stated the facts of the case are that P.W. Abdul Aziz, S.1./S.H.O. Police Station, Saddar, Quetta on receipt of certain spy information regarding availability of polythene bags in the huge quantity stocked by one Wazir Khan in a rented house situated in Gharibabad Kharotabad and the carrying on whole sale business in respect of same by him, formed a raiding party. The police party which was consisted of Abdul Ghani, S.I., Syed Azhar Hussain Shah, A.S.I., Abdul Khaliq, Head Constable, Muhammad Naseem, Ghulam Fareed and Fazal Hadi, Constables and other police personnel and headed by P.W. Abdul Aziz, S.H.O. Reached the above village at about 3-30 p.m. It stated that on knocking the door the party came to know that the house in question was maintained as godown for ploythene bags and no woman was available in the house. Upon entering into the said house the appellant was found sitting in a room of the said house. It is stated that on seeing the police party he came out from the room holding a kalashnikov and made an attempt to run away but he was caught hold by the police party. His further personal search resulted into recovery of one bandoliear containing two spare magazines. It is stated that accused/appellant was found in possession of one kalashnikov the magazine of which contained 25 cartridges, two spare magazines containing 20 and 25 live cartridges for which he could not produce any permit or licence and the same was taken into possession vide recovery memo.
Ex1LP/1-A. The seizing officer P.W. Abdul Aziz then wrote marasala Exh.P/1-B which was accordingly incorporated in the F.I.R. Being crime No,221 of 1998, Police Station Saddar, Quetta under section 13-E of the Arms Ordinance. After usual investigation the accused/appellant was sent up to face his trial.
3. On 10-5-1999 a formal charge under section 13-E of the Arms Ordinance, 1965 was framed against the appellant to which he pleaded not guilty and claimed trial.
4. At the trial prosecution examined three witnesses. P.W.1 Abdul Aziz is the complainant and at the relevant time he was posted as S.I./S.H.O. Police Station Saddar, Quetta. According to him he had received secret information to the extent that one Wazir Khan was dealing in the business of polythene bags in Killi Gharibabad Kharotabad, Quetta. It is stated that in those days there was a ban on polythene bags. On receipt of this information raiding party went to Kharotabad and a raid was conducted. He has deposed that appellant Shah Wali son of Wazir Khan came out from the room holding kalashnikov in his hand made an attempt to run away but he was overpowered with the heal of members of the party. He has stated that one kalashnikov bearing No,56-1-15202174 was recovered from the possession of Shah Wali. The bandoliear containing two spare magazines is also stated to liad been recovered from the appellant. It is stated that there were in all 70 cartridges contained in spare magazines and magazine of the kalashnikov, which were taken into possession. The seizing officer then wrote marasala and the investigation of the case was entrusted to P.W.3. In cross-examination the said seizing officer has stated that he was in possession of search warrant but the same has not been brought on record. There is, however, a search warrant issued by the EAC-III and Magistrate First Class, Quetta dated 13-11-1998, available at page No,29 of the record of Lower Court, perusal of which prima facie indicates that the same has been obtained after conducting of the raid as by that time .The name of Shah Wali was not known to the police nor there was any information regarding availability of arms in his house. There is also no mention of any search warrant in the recovery memo. Exh.P/1-A nor in the marasala Exh.P/1-B, therefore, obtaining of the said search warrant wherein the name of appellant has been indicated appears to be afterthought and it appears that the police in order to legalize the action which they had taken in a non-cognizable offence under section 188, P.P.C. Had obtained the said search warrant. The seizing officer has also admitted that the house in question is situated in a thickly populated area and no Magistrate was present with-The raiding party. He has also stated that none from the locality came on the spot. He has also admitted that the seized kalashnikov was not sealed at the spot. He has also admitted that appellant is a student and besides, appellant his brother was also present in the house and he was residing in the house alongwith other family members. He has, however, voluntarily added that at the time of occurrence besides these two persons none else was present in the house. P.W.2 Syed Azhar Hussain was also member of the raiding party to whom the investigation of the case was entrusted by P.W.1. In cross-examination he has stated that the search warrant was in respect of polythene bags which also makes the search warrant which had been issued by EAC-III on 13-11-1998 doubtful. He has also stated that during investigation except police persons he has not recorded statement of any other person. He has also stated that accused had disclosed that he was a student. He has also admitted that father of the accused was not present in the house. P.W.3 Abdul Khaliq, Head. Constable is a marginal Mashir of recovery memo. Exh.P/1-A. In cross-examination he has stated that non was called before entering into the said house/godown In his statement recorded under section 342, Cr.P.C. The appellant has disputed the case of the prosecution and pleaded his innocence. He has also made his statement on oath. According to him he is a student of 8th Class of Habib-ur- Rehman School. According to him he was arrested being a son of Wazir Khan in connection with polythene bags which were available in their house.
5. The learned Special Judge after assessment of the evidence has convicted the appellant and expressed, himself in the following terms:- "Prosecution's evidence shows that no efforts for compliance of provisions of section 103, Cr.P.C. Has been made. All the P.Ws. Are police officials, however, no motive or enmity has been alleged towards them. In the result, they are competent witnesses and non-compliance of provisions of section 103, Cr.P.C. Is not fatal for prosecution's case. The defence plea has been examined carefully. The defence plea is not reliable and this did not create any dent in prosecution evidence.
In the result, prosecution successfully establish the recovery from possession of accused beyond any reasonable doubt. The accused failed to produce any valid licence or permit for his possession. In the circumstances this ' point is resolved in affirmative." The present appeal is directed against the said judgment.
7. We have heard Mr. Tahir Muhammad Khan, Advocate learned counsel for appellant and Miss Shabnam, Advocate learned counsel for the State and have also examined the record.
8. We are not inclined to subscribe to the view of learned trial Court that non-compliance of provisions of section 103, Cr.P.C. Is not fatal for prosecution's case as in the instant case there is no explanation which can indicate that in the circumstances of the case it was not possible to have two Mashires from the public. The statement of the seizing officer indicates that no efforts were made to secure two Mashires from the public. There is also no otheriable piece of evidence which can corroborate the recovery. In the .Circumstances, on account of non-compliance of the mandatory provisions of section 103, Cr.P.C. And without any reliable corroborative evidence the recovery is doubtful.
9. In the authority cited by the learned counsel for appellant and report in PLD 1997 SC 408 the Hon'ble Supreme Court has made the following observations:-- "As regards the above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirement of section 103, Cr.P.C. Namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. In this regard, it will suffice to refer to a recent judgment of this Court in the case of Mushtaq Ahmad v. The State PLD 1996 SC 574. In the case in hand, S.I.P. Muhammad Rafique has not been able to give any cogent explanation as to why he was unable to secure two Mashirs from the public. In his cross-examination at page 48 of the paper book he stated that 'I received the spy information regarding the presence of the accused.. .... ..I did not take the informer with me when I proceeded to Andho Muqam. There are hotels at Rustam Chowk... . . .No person from the vicinity came at the time of arrest and recovery'. The above statement of Muhammad Rafique in his cross- examination indicates that no efforts were made by him to secure two Mashirs from the public. In this view of the matter, the recoveries are doubtful. Reverting to the third submission that since in support of the case under section 13-D of the Arms Ordinance the recovery witnesses were the police personnel, no implicit reliance can be placed on their evidence, it may be stated that he has relied upon the following observation from the judgment of this Court in the case of Mushtaq Ahmed v. The State (supra):
(v) That likewise there is a marked distinction between a case in which the offence charged with is the recovery of the article itself like recovery of an unlicensed kalashnikov and a case in which the article recovered e.g. a crime weapon is to be used as a corroborative piece of evidence. In the former case if the witnesses to the recovery were police personnel though it was possible to have two Mashirs from the locality where recovery was made, their testimony in the absence of other reliable pieces of evidence would not warrant conviction, whereas in the latter case, if other pieces of evidence on record are free from doubt, the testimony of the police personnel if otherwise free from any legal infirmity may be accepted.
The above extract from the above judgment of this Court lends support to Mr. Aqil's above submission. Therefore, on this account also the conviction under section 13-D of the Arms Ordinance cannot be sustained."
10. Following the principles laid down in the cited authority we are of the view that the recovery effected in the instant case is doubtful and the prosecution's evidence cannot be relied upon for the conviction of the appellant. Besides, above, infirmity in the evidence of the prosecution the appellant who is student of tender age was not the only inmate of the house where the raid was laid down by the police. Even the learned Special Judge, Suppression of Terrorist Activities, Quetta while granting bail to the appellant vide Bail Application No,164 of 1998 has observed that the accused appears to be minor. In view of the above position we are of the view that the prosecution has failed to establish its case against the appellant beyond any reasonable doubt.
11. For the foregoing reasons the appeal is accepted. The conviction and sentence of the appellant recorded by the learned Special Judge are set aside and he is acquitted of the offence for which he was convicted and sentenced. He should be released forthwith if no required in any other case.