1994 PLP 1487 (MLD)

MIAN ABDUL KHALIQ, J: --Mateen Ahmad son of Habib Ahmad was tried by the learned Judge, Special Court (Suppression of Terrorist Activities), Gujranwala Division, Gujranwala and vide its impugned judgment, dated 10-12-1992 the learned Court convicted the appellant under section 13 of the West Pakistan Arms Ordinance (XX of 1965) and sentenced him to undergo 5 years' R.I. and a fine of Rs.20,000, in default whereof to suffer six months' R.I. further. He was also extended the benefit of section 382-B, Cr.P.C. He has come up in appeal to assail his conviction and sentence.

2. The prosecution case is that on 29-8-1991 at 11-00 a.m. P.W.1 Manzoor Ahmad S.H.O. alongwith P.W.2 Nishan AA Constable and other police officials were present on patrol duty at Noorpur Syphen when an informer informed that the appellant had illicit sten gun and if he would be arrested, he 'would get recovered the illicit sten gun. The appellant while keeping with him the illicit sten gun had committed an offence under section 13 of the West Pakistan Arms Ordinance (XX of 1965). P.W.1 Manzoor Ahmad, S.H.O. drafted complaint Exh.PA and sent the same to the police station through P.W.2 Nishan Ali for registration of the case, where P.W.3 Khadim Hussain, M.H.C. received the same and on its basis recorded the formal F.I.R. Exh.PA/1. The appellant was apprehended from Village Saukanwind, interrogated and his physical remand was obtained on 30-8-1991. The appellant on 1-9-1991 during interrogation made a disclosure and led to the recovery of sten gun P.1 from cattleshed of Babu Khan which was secured by P.W.1 vide memo Exh.PB.

3. To prove the recovery of sten gun the .prosecution examined P.W.1 Manzoor Ahmad S.H.O. and P.W.2 Nishan Ali Constable. The appellant denied the prosecution allegation, disowned sten gun P.1 and stated that he was falsely implicated by the police at the behest of Bahadur Khan alias Babu Khan, who was inimical to the appellant and was extremely influential especially with the local police. In his statement under section 340(2), Cr.P.C. he stated that due to the strained relations with Babu Khan the sten gun had been planted on his behest. D.W.1 Daud Muhammad Butt, D.S.P. Crimes Branch, investigated the case and had recommended that the appellant be got discharged and departmental action should be instituted against P.W.1 Manzur Ahmad, S.H.O. for dishonest investigation and his finding was approved by the Inspector-General of Police, Punjab. He had also stated that during his investigation it transpired that the sten gun in dispute had been produced at the Police Station Kila Kalarwala by Bahadur Khan alias Babu Khan and others which was later on planted on the appellant.

4. Relying on the evidence of P.W. 1 Manzoor Ahmad S.H.O. and P.W.2 Nishan Ali Constable, the learned trial Court convicted and sentenced the appellant as stated above.

5. It is -contended that although the recovery was effected from the house of Khan Bahadur alias Babu Khan, but he was not joined in the recovery proceedings. Both the recovery witnesses are Police Officials. No person from the vicinity was associated. D.W. 1 Daud Muhammad Butt, D.S.P. in his investigation had found the appellant innocent. The learned counsel for the State submits that the Police Officials are as good witnesses as ordinary persons, therefore, the present evidence was rightly acted upon. It has been provided under section 24 of-the West Pakistan Arms Ordinance (XX of 1965) that the provisions of Criminal Procedure Code pertaining to search made for the recovery of arms, are applicable. Under section 103, Cr.P.C. it is provided that two or more respectable witnesses of the locality shall attend and witness the search. Here in this case the place of recovery is owned by Babu Khan and is situated in the Abadi. Neither Babu Khan nor any respectable of the locality was associated in the recovery proceedings. The place of recovery was not in the exclusive possession of the appellant. P.W.1 had prior spy information about the arm with the appellant, but no public witness was associated in the recovery proceedings. The Police Officer (P.W.1) is not only a party to the case himself, but he is also a person interested in its outcome. tie is a prosecutor, investigator and a witness of this case. P.W.1 and P.W.2 are Police Officials and in the circumstances the presence of external witnesses was necessary. The requirement of law is shat the recovery of incriminating articles should be made in the presence of two of more respectables of the locality, and the same could not be defeated if the recoveries are made only by the Police Officials themselves without associating any public witness in the said proceedings.

6. For the foregoing reasons, the prosecution evidence has, not intrinsic value to sustain conviction. Consequently, the appeal is allowed and the appellant is acquitted of the charge. He shall be released forthwith if not required in any other case. N.H.Q./M-1528/L Appeal allowed.