1. ' Through this criminal revision application, the applicant has challenged two judgments below given by learned Civil Judge and F.C.M., Thul and learned Sessions Judge, Jacobabed, dated 25-1- 1999 and 14-4-2000 respectively.
2. ' The prosecution case as enunciated by complainant HC/324 Muhammad Ishaque vide F.I.R. No,62 of 1998, under section 13-D of Arms Ordinance registered with Police Station Baho Khoso goes to say as under: ' On behalf of State complainant is that, today I alongwith staff PC/1738 Muhammad Hassan, PC/2971 Gul Bahar, PC/3293 Sabir Ali in uniform and armed left the Police Station through Govenrment Vehicle No, SP 4901 driver by PC/202 Riaz Ahmed, vide Roznamcha Entry No,7, 31-8- 1998 at 14-45 hours for patrolling the area. While patrolling the area, when at 16-00 hours we reached near the Nizamani Khosa Bridge of Unar bridge Deh Logi we saw that one person being armed with gun was ascending the Bridge, whom we gestured to stop, who seeing us (Police party) in uniform tried to escape with the help of staff and strategy encircled the accused and apprehended him I secured the gun (sic) in my possession. His personal search was taken and found four live cartridges of .12 bore of red colour from right side pocket of his shirt. The gun was opened and found it unloaded. He was inquired about name, father's name, address and licence of gun, to whom he disclosed his name Mir Khan alias Mor son of Qaloo by caste Jafferi, resident of village Shabaz Khan Jafferi, Taluka Thul. He disclosed about gun to be unlicensed. The gun and cartridges were taken in possession and Mashirnama was prepared with the signatures of PC/1738 Muhammad Hassan and PC/2971 Gul Bahar. We came at Police Station with arrested accused and recovered gun and cartridges. The accused has possessed unlicensed gun and cartridges and has committed offence under section 13-D of Arms Ordinance. 1965 and case is registered against him."
3. ' Learned Advocate for the applicant has argued that the recovery is said to have been effected from the possession of the applicant from bridge of Unar Distributory at 4-00 p.m. And the recovery is SBBL Gun along with four live cartridges and the same have not been effected in presence of independent Mashirs as required under section 103, Cr.P.C. And Mashirs are Police Constables namely Gul Bahar and Muhammad Hassan of the same Police Station Mr. Memon has further contended that the SBBL. Gun and four live cartridges were not sealed at the spot. Even SBBL gun and four live cartridges were not sent to the Balistic Expert. Mr. Memon has further contended that the complainant H.C. Muhammad Ishaque of Police Station Bahu Khoso is said to have .Gone vide Entry No, 7, dated 31-8-1998 and the same has not been produced before the trial Court by the prosecution through him and further that no weapon has been shown to the accused during the statement under section 342, Cr.P.C. And has submitted that both the Courts below have not taken into consideration the legal aspect of the case and has prayed for the acceptance of this revision.
4. ' On the other hand, Mr. Gul Hassan Solaria, Advocate for the State has supported the contentions of learned counsel for the applicant and has recorded his no objection if the revision is accepted.
5. '1 have considered the arguments advanced by the learned counsel for the parties and have gone through the evidence of the prosecution witnesses and the statement of appellant under section 342, Cr.P.C. And other material available on record. I have also examined the impugned judgments given by the Courts below. Admittedly, the prosecution depends its case on the .Basis of Entry No,7, dated 31-8-1998 and the same has not been produced before the trial Court by the prosecution.
6. The whole case of the prosecution depends on this entry which is genuine document and non- production of such genuine document cuts the root of the prosecution's case. Reliance can be placed on a case reported in 1997 M LD 1632, 1998 PCr.LJ 1368. The case property during the statement of the applicant under section 342, Cr.P.C. Has not been shown to the appellant/accused and this is another violation on the part of prosecution and reliance can be placed on 1998 PCr.LJ 1368 and 1996 PCr.LJ 1410.
7. ' Admittedly, the private Mashirs have not been associated by the police party although place of Wardat is surrounded by villages and cultivated lands and no efforts have been made by police to associate independent witnesses on the factum of recovery. It has been held by the superior Courts that recovery is to be proved by independent and disinterested witnesses. In the present case, the Mashirs are police constables namely Gul Bahar and Muhammad Hassan who are policemen and there is no private Mashir as held in the case of Yameen Kumar v. The State reported in PLD 1990 Karachi 275, wherein the Division Bench of this Court has held that section 103, Cr.P.C. Is to be applied to recovery, search and arrest made during investigation of crime. It is mandatory but not absolute and its noncompliance in certain circumstances will not render search recovery illegal. However, where during investigation of a crime recovery is made from any inhabited locality compliance with 'section 103, Cr.P.C. Must be made it cannot be ignored or brushed aside on the whims and caprices of the Investigating Officer except on well founded grounds in exceptional cases. If the recovery has been made in contravention of section 103, it is the duty of the prosecution to explain and give valid and reasonable explanation for such digression. Recovery is an important piece of evidence which is to be proved by disinterested, independent and respectable witnesses. It is intended to eliminate and guard against chicanery and concoction to minimize manipulation and false implication.
8. 'In view of the aforementioned law given by the superior Courts there is a flagrant violation of the mandatory provisions of section 103, Cr.P.C. Non-production of entry is also established case property has not been shown to the accused during the examination under section 342, Cr.P.C. The learned trial Courts below have not taken into consideration all the aspects of the case and accordingly both the judgments are set aside. In result, this revision application is accepted.
9. Applicant is on bail, his bail bond and surety stand discharged.