' TALAT QAYUM QURESHI, J.--- This appeal is directed against the judgment and order of the learned Judge, Special Court, Nowshera, dated 27-5-2000, whereby the appellant was convicted and sentenced under section 13, Arms Ordinance to suffer 5 years' R.I. And to pay a fine of Rs,20,000 and in default of payment of fine to suffer 2 years further R.I. He was however, acquitted of the charge under section 14, Arms Ordinance.
2. On 3-8-1995 on receipt of prior information that smuggling of arms through Flying Coach No,PRL- 7995 shall be done, Mian Mizajullah, Inspector/S.H.O. Police Station C.I.D. Peshawar laid a Nakabandi near Khatt Killay on G.T. Road within the limits of District Noshera at 21-45 hours. Flying Coach No,PRL-7995 which was on its way to Peshawar was stopped. Six persons were found sitting in the coach in addition to driver and the cleaner. On search of the vehicle 6 Kalashnikovs, 2 pistols of .30 bore, 10 rounds, 6 magazines each containing 30 rounds of 7.62 bore, 6 spare chargers of Kalashnikovs containing 120 rounds. Of 7.62 bore without any licence or permit were found lying under the seat kept in a bag. The seized arms were taken into possession by the raiding party alongwith copy of the Registration and Permit of the vehicle vide recovery memo. Exh.P.C.
' Murasila Exh.P.A./1 was drafted which culminated into Registration of case vide F . I . R . Exh.P.A.
3. After completion of investigation challan of the case was submitted in the Special Court. Charge against the appellant was framed to which he professed innocence and claimed trial. It is worth mentioning here that the remaining accused absconded and are still fugitive from law.
4. The prosecution, in order to prove its case, examined 3 witnesses in all. Niaz Muhammad, Head Constable was examined as C.W.1. He was entrusted with the warrants of arrest issued against the accused Samin, Khalilur Rehman, Khan Afzal, Abdul Wadood (appellant), Maulana Sirajuddin, Mustaqim and Zahir Gul, who searched them in their respective villages and the surrounding areas but they were not available. The warrant of arrest was placed on record as Exh.P.W.1/1 containing his report which correctly bears his signature. It was reported to him that the accused were residing in Khyber Agency, Tribal Territory.
5. Muhammad Arif, S.-I. Police Station Daudzai was examined as P.W.1. On receipt of Murasila Exh.P.A./1 he registered the case vide F.I.R. No,10 Exh.P.A., which in his hand and correctly bears his signatures.
6. Sharif Khan, S.-I. C.I.D. Peshawar was examined as P.W.2. He is marginal witness to the recovery memo. Exh.P.C. Vide which Mian Mizajullah, Inspector C.I.D.(P.W.3) had taken into possession 6 Kalashnikovs Exh.P.1 to Exh.P.6, 650 rounds of the same bore Exh.P.7, 2 pistols of .30 bore Exh.P.8 and Exh.P.9, 20 rounds of .30 bore Exh.P.106 chargers of kalashnikovs Exh.P.11 from Flying Coach No,PRL- 7995. All the recovered articles were lying beneath the seats.
7. Mian Mizajullah, Inspector/S.H.O., C.I.D. Was also examined as P.W.3. In the days of occurrence he was posted as S.H.O., C.I.D. N.-W.F.P., Peshawar. On receipt of information that arms were being smuggled from Rawalpindi to Peshawar by a few persons travelling in Flying Coach No,7995, he constituted a party consisting of Inspector Baigham Shah, Sharif Khan, Maqbali H.C. And other C.I.A.
Staff and held Nakabandi near Khat Killay, on G.T. Road. At 21-44 hours Flying Coach No,PRL7995 was stopped at the point of Nakabandi. 6 persons were sitting in the said coach besides driver and the cleaner. He searched beneath the seats and recovered arms and ammunition mentioned above vide recovery memo. Exh.P.C. He also took into possession the Registration Book and Permit (Part A) of the Flying Coach in his possession, drafted Murasila Exh.P.A./1, prepared site plan Exh.P.S. Recorded the statements of P.Ws. And after completing the investigation, submitted complete challan in the Court.
8. Appellant's statement was recorded under section 342, Cr.P.C. He professed innocence and in answer to a question regarding his statement and why he was charged, he stated that he was President of Tanzim-e-Ittehad Ulama-e-Bara and the Government was not in good terms with the said Tanzim, therefore, the case in hand has been planted against him. He did not wish to be examined under section 340(2), Cr.P.C.
9. Mr. Khawaja Muhammad Khan, the learned counsel representing the appellant argued that the appellant is a religious Scholar and there is no history of his being involved in any unlawful activity.
The allegedly recovered arms and ammunition was found lying beneath the seats and nothing was recovered from the person of the appellant and no person from the public was associated with the recovery proceedings, although the police party had prior information, which makes the recovery doubtful.
10. It was also argued that appellant was neither the owner of the vehicle nor had any knowledge of the arms and ammunition being kept beneath the seats. There were 6 persons including him sitting in the vehicle in addition to driver and the cleaner and all of them were made accused and there was levelled omnibus charge against all who were travelling in the said Flying Coach.
11. On the other hand Mr. Azizur Reiman, Advocate the learned counsel representing the State argued that huge quantity of arms and ammunition was recovered from the Flying Coach. Since the occurrence took place at 21-45 hours i.e, late in the evening, therefore, none from the public was available at the time of said recovery. The appellant alongwith co-accused after having been released on bail absconded for sufficient long time and his co-accused are still absconders.
12. We have heard' the learned counsel for the parties and perused the record.
13. It is an admitted fact that recovery of the arms and ammunition mentioned in Exh.P.C. Was effected from Flying Coach No,PRL-7995. The recovered ammunition was lying beneath the seats wrapped in plastic bag. Nothing was recovered from the person of the appellant. At the time of recovery, there were 8 persons including the appellant who were travelling from Rawalpindi to Peshawar. All of them have been arraigned as accused in the case in hand. The question which needs our attention is as to whether there is any evidence available on record to show as to whether the appellant who was one of the passenger had any knowledge of the recovered ammunition and that is there any material available on record to show as to who has kept such huge quantity of arms and ammunition in the flying coach. The available material on record shows that there is neither any evidence on record to suggest that the appellant had any knowledge of the arms and ammunition lying underneath the seats in the flying coach in which he was travelling nor there is any evidence available on record to show that who had kept and where the same were loaded in the said flying coach. In the absence of any evidence it cannot be said that the appellant had even the constructive possession of the recovered articles. In case reported as State v. Qazi Pervez Iqbal and others PLD 1978 SC 64 it was observed that:- ' "The appellant as prosecuted both under section 5 of the Explosives Substances Act and under section 20 of the Arms Act on the charge that he was in possession of explosives as well as a very large quantity of fire-arms. The fire-arms and explosives were found in the appellant's house, and as his father, wife and family also lived with him, the appellant's plea inter alia was that the charge against him was not proved, because he was only one of several occupants of the house in which the incriminating articles had been discovered. The trial Court accepted this plea and acquitted the appellant. This acquittal was challenged in an appeal in the Lahore High Court, which came up for hearing before a Division Bench of the High Court, and in view of the conflict of authority on the meaning of the words 'possession' and 'control' in the relevant statute, the learned Judges of the Division Bench referred two questions to the Full Bench. The first question was whether all the persons occupying a house are liable for the incriminating articles in that house and the second question was whether in such a situation the occupants of the house had to 'account for the presence of the incriminating articles in their premises'. After examining the judgments of the High Court, the learned Judges of the Full Bench held that constructive possession or control could not fall within the mischief of the Explosives Substances Act and they answered the questions referred to them as follows-- ' 'I respectfully agree with these observations, that section 106, Evidence Act, cannot be used to strengthen the evidence for the prosecution. The prosecution must stand or fall on the evidence adduced by it and until a prima facie case is established by such evidence, the onus does not shift on the accused. Mere proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish prima facie the guilt of any particular person or all of them jointly. That being so, they cannot be called upon after such evidence to establish their innocence. They can only be called upon to do that when the evidence has established a prima facie case against any one of them or all of them'.
' I respectfully agree with these observations, which coincide with my own views on these questions."
14. The perusal of the above judgment shows that it is in fact the actual possession coupled with the guilty knowledge which constitutes an offence, which in the case in hand, is lacking.
15. The argument of the learned counsel for the appellant that no person from public was associated despite prior information at the time of recovery, c therefore, the recovery becomes doubtful, has a force in it. It is in the F.I.R. That Mian Mizajullah, S.H.O., C.I.D., N.-W.F.P. Peshawar received prior information regarding the smuggling of arms and ammunition from Rawalpindi to Peshawar through Flying Coach No,PRL-7995 upon which he constituted a raiding party and held Nakabandi near Khat Killay at G.T. Road. The said police officials had sufficient advance information from the informer to make arrangements for the compliance of section 103, Cr.P.C.
Before the arrival of the said coach in which, according to the prosecution, the recovered arms and ammunition were being smuggled, but the compliance of section 103, Cr.P.C. Was not done. No doubt that in such cases persons from public do not come forward to become recovery witnesses and that police officials are as good witnesses as anybody else, but the police cannot be absolved of heavy responsibility to produce witnesses from public and it was obligatory upon the police/investigating authority to explain reasons for non-compliance of the said provisions. In State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 it was held:-- ' "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 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 1 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."
16. We are conscious of the fact that august Supreme Court of Pakistan in State v. Muhammad Amin 1999 SCM R 1367 has held that provisions of section 1 ; Cr.P.C. Do not apply if the recovery is not made in pursuance of search of a house, but is made elsewhere, for instance in the Highways, road sides or the public places like Railway Stations, Bus stands or Airports. The dictum laid down in this judgment is reproduced hereunder:-- ' "Be that as it may, the search of the baggage and person at the Airport or on the Highways in generally not amenable to the strict compliance of section 103 of the Cr.P.C. It is by now settled law that provisions of section 103, Cr.P.C. Do not apply if the recovery is not made in pursuance of search of a house, but is made elsewhere, for instance on the Highways or the road sides or the public places like Railway Stations, Bus Stands and the search of baggage or of the person at the Airports. Assuming for the sake of argument but without conceding that provision of section 103
(ibid) apply to the search of the baggage or of person, still its application has been restricted on the principles of interpretation. It would, thus, be noticed that two independent witnesses are generally required to witness the recovery. This requirement of law is, however, subject to exceptions."
17. The above-cited judgment is not applicable to the present case because in the instant case the recovery was effected at 21-45 hours at G.T. Road which is a very busy road. It was not a deserted place and the occurrence also did not take place at the dead of night. It was rather populated area where several other people of the area were 'present but no efforts were made to join them to witness the occurrence and no reason whatsoever has been given for non-compliance of the provisions of section 103, Cr.P.C.
18. The case of prosecution rests on the statements of two police officials namely Sharif Khan, S.-I.
(P.W.2) C.I.D., who is marginal witness to the recovery memo. Exh.P.C. And Mian Mizajullah, Inspector (P.W.3) who recovered the seized arms and ammunition, prepared the site plan, recovery memos.
Recorded the statements of P.Ws. And himself investigated the case and put the challan in the Court. Therefore, their statements cannot be solely accepted and relied upon to convict the appellant. The possibility that the appellant being one of the passengers was implicated with some ulterior motive could not be ruled out. Reliance in this regard is placed on Iltaf Hussain v. The State 1996 SCM R 167 in which it was held:-- ' "The argument that public witnesses do not come forward to support such-like recoveries because of risk to their life and liberty, nonetheless could not absolve the police of their heavy responsibility to produce witnesses from public. There is no dearth of citizens of strong views and character who would come out to support such-like cases provided they were taken into confidence, given due respect and were ensured that full protection would be given to them, in case, they aided the law-enforcers to curb the crimes in the best interest of the society as a whole.
There may be cases where public witnesses could not be produced because of their non- availability due to odd hours of the night or the day or where the recovery was effected from a deserted place or during the dead of night. The position in this case was just the reverse because, admittedly, recovery was effected from a populated area where several other people who saw the recovery of kalashnikov were present but no efforts were made to join them to witness the occurrence. We, accordingly, hold that evidence of police witnesses who are, in a way, the complainant could not solely be accepted to be relied upon to convict the appellant, especially, when the aforesaid public witness was abandoned without any rhyme or reason. The possibility that the appellant was implicated with some ulterior motive could not be ruled out. For all these reasons, we have no alternative but to acquit the appellant by setting aside his conviction and sentence by giving him benefit of doubt. He is on bail and as such, shall be discharged from the liability of his bail bond. The appeal succeeds and is allowed."
For the above discussed reasons, we accept the appeal and set aside the conviction and sentence of the appellant by giving him benefit of doubt. The appellant is behind the bars and be released forthwith if not wanted in any other case.