' RAJA FAYYAZ AHMED, C.J.--Appellant has been convicted under section 13-E of the Arms Ordinance, 1965 and sentenced to three years' R.I. And fine of Rs,2,000, in default of payment of fine to further suffer one month' 5.-I. And benefit of section 382-B, Cr.P.C. Has been extended in his favour vide judgment, dated 7-6-2000 impugned in this appeal, passed by the learned Special Judge, S.T.A. Court, Quetta in Arms Case No,4 of 2000.
2. Briefly stating the facts of the case are that pursuant to spy information, houses situated within the place statedly known as Usman Killa were searched by a raiding party under the supervision of S.S.P., Quetta and comprising of D.S.P./S.D.P.O., Satellite Town Circle Quetta, D.S.P./S.D.P.O. Quaid Abad Circle, personnels of A.T.F. And Police, Balochistan Reserve Police, lady constable and Magistrate First Class, Quetta besides S.-1./S.H.O. At 2-00 a.m. On 17-2-2000. Before the search operations Usman Killa was cordoned off by the forces and various houses were searched including the suspected persons and during the search of a katcha house, a person who disclosed his name as Shah Gul son of Shah Muhammad (accused) was found present in the western room of the said house, wherefrom a Kalashnikov containing eighteen live rounds in the magazine was recovered and the abovesaid person present in the room, failed to produce arms licence of the Kalashnikov, accordingly; he was apprehended under section 13-E of the Arms Ordinance, 1965 and murasla Exh.P/1-B was sent to the concerned Police Station for registration of the case.
' Pursuant to murasla F.I.R. No,20 of 2000 was registered with Police Station, Pashtoonabad, District Quetta under section 13-E of the Arms Ordinance. After completion of investigation, challan for trial of the offence was submitted in the Court of learned Special Judge. S.T.A. Court, Quetta. On 6-3- 2000 accused was indicted for the offence under section 13-E of the Arms Ordinance for having been allegedly found in possession of the unlicensed Kalashnikov and live cartridges, to which he pleaded not guilty, and; the prosecution to substantiate the accusation produced four witnesses i,e, Muhammad Bashir S.-I/Police Station, Pashtoonabad (P.W.1), Syed Shabahat Ali Shah EAC- IV/FCM, Quetta (P.W.2), Muhammad Ashraf Constable/Police Station Pashtoonabad (P.W.3) and Khalid Mehmood A.S. -I. /P. S. Pashtoonabad/ Investigating Officer. After close of the prosecution evidence, accused was examined under section 342, Cr.P.C. In the light of incriminating pieces of prosecution evidence produced at the trial and the same were denied and disputed by the accused. Accused appeared as his own witness in defence within the purview of section 340(2), Cr.P.C. And produced two other defence witnesses namely Abdul Malik (D.W.1) and Shah Wali (D.W.2). After close of the parties case, the learned Special Judge, S.T.A. Court (hereinafter referred to as the learned trial Court) vide impugned judgment convicted and sentenced the appellant as hereinabovementioned.
Substance of prosecution evidence.
3. P.W. Bashir Ahmed S.-I/Police Station, Pashtoonabad supported the case of the prosecution and his version as contained in the murasla Exh.P/1-A and produced memo. Exh.P/1-B by means of which he took into possession the unlicensed kalashnikov and live cartridges, which he produced as articles in Court and also identified the appellant as-the accused.
' According to Syed Shabahat Ali Shah EAC-IV/FCM (P.W.2) on 17-2-2000 at 2-00 a.m the police personnel and the other officers of the police cordoned off Usman Killa and they searched houses situated within the Killa and thereafter, house of the accused Shah Gul was searched, who was found statedly present there and a Kalashnikov alongwith eighteen live rounds were recovered, but the accused failed to produce arms licence. He also identified the unlicensed arms and ammuinition recovered by the police during the search of the house of the accused.
' Muhammad Ashraf, Police Constable (P.W.3) generally supported to the version of the prosecution, and alleged that during the course of search, from the western room of the house of the accused a Kalashnikov containing eighteen rounds in the magazine were recovered wherein the accused was found sleeping who failed to produce arms licence of the recovered arms and ammunition, consequently; the same was taken into possession by P.W.1 vide inventory in his presence and produced by the witness as Exh.P/1-A bearing his signature as Musheer. He also produced the recovered arms and ammunition as articles in the Court and identified the appellant as an accused.
' P.W. A.S.-I. Khalid Mehmood conducted investigation of the case. He prepared sketch of the house, which he produced as Exh.P/4-B and recorded the statement of P. Ws. Under section 161, Cr.P.C.
According to him the accused failed to produce arms licence of the Kalashnikov and live cartridges were stated to have been recovered from his possession during the search of the house and after completion of investigation handed over record and papers to the S.H.O., who prepared the challan and submitted the same in Court, produced by the witness as Exh.P/3-C.
Defence evidence.
4. Accused took the plea in his statement recorded under section 340(2), Cr.P.C. That he is an Afghan National and was staying in the house of his sister as guest and had no connection in respect of the alleged recovered unlicensed arms and ammunition.
' According to D.W. Abdul Malik during the raid he alongwith his brother were apprehended by the police and were brought to Usman Killa, where already the police had apprehended thirteen/fourteen persons including accused Shah Gul and were taken to the Police Station to verify if they were not the proclaimed offenders and in the Police Station Shah Gul was put in the lock-up on the accusation that a Kalashnikov was recovered from his possession. He further added that the house from where the accused was apprehended belongs to the sister of accused. Almost, similar is the version of D.W. Shah Wali.
5. We have heard the learned counsel for the appellant as well as the learned Advocate appearing for the State. Mr. Zahid Malik vehemently argued that the entire search and seizure proceedings stand vitiated on account of violation of the mandatory provisions of section 103, Cr.P.C. Particularly for the reasons that a prearranged raid and search according to the case of the prosecution was carried out, therefore, it was obligatory on the part of the police to have associated respectable persons of the area, at least two in number to witness the search, and secondly no explanation has been offered by any of the P.Ws. Which necessitated for non-compliance of the provisions of section 103, Cr.P.C. Thirdly, according to the learned counsel in the odd hours of night raid and search of the various houses statedly was carried out by the police, therefore, for such reason as well it was all the more essential to have had complied with the mandatory provisions of law besides obtaining search warrant from a Magistrate. He also contended that all the prosecution witnesses are police officers and in the facts and circumstances of the case implicit reliance on their testimony for the purpose of conviction cannot be placed unless corroborated through independent evidence, which in the instant case is completely lacking.
6. Mrs. Ashraf Abbas on the other hand, contended that the prosecution evidence on all the material particulars is consistent, convincing and reliable which could not be discredited in cross- examination nor the accused could rebut the same hence the learned trial Court appropriately on correct appraisal of evidence found the accused to be guilty on the charge. According to the learned Advocate, it was not possible for the police during the odd hours of the night to have managed to associate any respectable person of the locality to witness the search proceedings of house and non-compliance of the mandatory provisions of section 103, Cr.P.C. In the circumstances of the case is excusable, and; secondly, no grudge or motive about the false implication of the accused in the case has even been alleged, hence, reliance can safely be placed on the testimony of the P.Ws. And the judgment, thus; is unexceptionable.
7. We have considered the contentions put forth on behalf of the parties learned counsel in the light of the record of the case which has been gone through carefully including the impugned judgment. The case of the prosecution is that at 2-00 a.m. On 17-3-2000 entire residential area, comprising of houses situated within the boundaries of Usman Killa was cordoned off for the purpose of raid and search of houses including checking of the suspected persons by various forces under the supervision of S.S.P. Quetta and other high ranking Police Officers including a Magistrate and during this entire operation only one Kalashnikov and eighteen live cartridges were stated to have been recovered from a residential room of the house of the accused, in which he was found present and he failed to produce arms licence of the recovered Kalashnikov and rounds.
The prosecution story is that such operation was carried out pursuant to a spy information and according to P.W. Muhammad Bashir S.-I./S.H.O. On the same day at 7-00 p.m. Spy information was received, who further in the cross-examination stated that except the abovesaid Kalashnikov and eighteen rounds no other arms or any ammunition was recovered in the large scale search operations carried out by the different forces under a special raiding party. It thus, becomes abundantly clear that seven hours before cordoning off the residential area spy information was received and there was sufficient time at the disposal of the concerned authorities and for the S.S.P., under whose supervision the operation and searches were carried out to have had managed to associate at least two respectable persons of the locality or even of nearby areas to witness the search, but from the prosecution evidence it appears that no attempt whatsoever in such behalf was made by the concerned nor any justification has been offered by any of the P.Ws. For noncomplying with the provisions of section 103, Cr.P.C., and therefore, in such view of the prosecution evidence it can be safely concluded that deliberately the mandatory provisions of the law have been violated by the high ranking police officers including the 'aiding party besides the Magistrate from whom it was legitimately expected that he would not act or become a party to any illegal transaction unless the circumstances of an event or given situtation justified for ignoring the mandatory provisions of law, but in the instant case the entire residential area comprising of the houses situated within Usman Killa was cordoned off by the members of the Anti-Terrorist Force (A.T.F), Balochistan Reserve Police (B.R.P) and police staff which indicate that sufficient number of contingents were deployed for a particular purpose under the umbrella whereof many houses were searched and nothing illicit except one Kalshnikov and eighteen rounds were allegedly recovered and in view of such a factual aspect of the matter there remained no apprehension or possibility for a culprit to escape, hence, non-compliance of the mandatory provisions of law cannot be lightly ignored, particularly in absence of any justification or explanation. Moreover, admittedly as per case of the prosecution during the odd hours of the night search of residential houses was carried out, therefore, all the more it was essential on the part of the concerned police officers or the authority responsible for holding raid and searches to have had obtained warrant for general search or for any particular residential premises, had the spy information was treated or found to be credible and secondly; for the reason, as sufficient time after receipt of spy information was available with the police to comply with the mandatory provisions of law, which otherwise stand under high obligation to implement and comply with the law of the land and not to deliberately offend or violate the same except under special circumstances or for any other justifiable reason which may call for immediate or prompt action etc. Also in the given facts and circumstances of the case referred to hereinabove, even in absence of any grudge or motive on the part of the police about the false implication of the accused in the case, fabrication of alleged recovery of a Kalashnikov and eighteen rounds cannot be excluded, to justify employment of heavy contingents and general searches of residential houses of the citizens during odd hours of the night, as well as on account of the serious violation of the mandatory provisions of section 103, Cr.P.C. We having found the conviction of the appellant as not sustainable, vide our short order, dated 16-10-2000 the impugned judgment was set aside, and; these are the reasons of our above said order.