1994 P Cr (PLP)

MAMOON KAZI, J.

Appellant Rabail has been found guilty of commission of offence under section 13-D of the Arms Ordinance by the learned Special Court, Suppression of Terrorist Activities, Hyderabad, and sentenced to suffer R.I. for five years and to pay a fine of Rs.5,000 (Rupees five thousand) or in default of payment of fine to suffer further R.I. for six months. The appellant has now filed this appeal against the said conviction and the sentence.

2. The case against the appellant was registered at the instance of P.W.1, Saeed Ahmed, who was then Sub-Inspector of Police. According to first information report lodged by the said witness on 9-5-1992, when the said witness alongwith his subordinate staff was on patrol duty, he received spy information that in the Otak of the appellant which was situated on the land of one Dawood Khan Pathan, unlicensed weapons and Charas was lying, which the appellant was about to remove to some other place. The witness then sent wireless message from his Mobile Van No.3804 to Incharge Police Post Puban. H.C. Khan Bahadur, Incharge Police Post Seri and A.S.I. Ghulam Rasool, Incharge Police Post Tando Fazal, who then arrived there. The Sub-Inspector of Police then reached the place of occurrence and saw that the appellant was standing near the door of his Otak with Klashnikov assault rifle. The Police Officer then secured the said rifle which was loaded with a magazine containing 28 bullets. He enquired about the licence of the said rifle but the appellant disclosed that he had none. The Police Officer then took personal search of the appellant and also secured one T.T. Pistol No.31011835 which was loaded with a magazine containing 8 live bullets. The appellant also did not possess any licence for the same. The Police Officer then asked the appellant about the Charas and other weapons, on which be disclosed that he ran business of Charas and some more weapons were also lying in another room of his Otak. The appellant then voluntarily took the police party towards eastern side of the Otak and opened the door of cane of the rooms and the same was found packed with slabs of Charas. There were three armed persons sitting in the room and one of them disclosed his name as Jabrail son of Moosa Khan. The Sub-Inspector of Police then secured from him one rifle Roger No.187 54128 alongwith a magazine containing 10 bullets. On enquiry it was revealed that the same was without any licence. Another T.T. pistol was also secured from the search of the said Jabrail alongwith a magazine containing 8 live bullets. Another fire-arm, DBBL Pak-made with five cartridges was also secured from another person who was present in the said room, namely Noor Jamal son of Abdul Sattar. The third person who disclosed his name as Amanullah son of Moosa Khan was also found to be in possession of one .7 m.m. rifle which was loaded with five bullets. The Sub-Inspector of Police also secured 20 live bullets from one plastic bag. The said persons could not produce any licence for the said arms. The Inspector of Police also secured 220 Kgs. of Charas with more fire-arms and bullets and he arrested the said four accused under sections 3/4 of Abkari Act and 13-D of the Arms Act. He also took into possession whole of the Charas and the arms under a Mashirnama.

4. Thereafter, the said accused were challaned separately in each case. In the present case the appellant was challaned for being found in possession of the said Klashnikov assault rifle and the live bullets.

5. The prosecution examined Saeed Ahmed and A.S.I. Ghulam Rasool as witnesses, who fully supported the prosecution case.

6. The appellant in his statement recorded under section 342, Cr.P.C. denied the aforesaid allegations. According to him, he was working as Chowkidar of Dawood Khan Pathan and was taken from his hotel at 7 a.m. where he was sleeping. From there the appellant was taken to the petrol pump of Dawood Khan where the fire-arms were lying in an adjacent room from where they were taken into possession by the police. However, according to the appellant the Klashnikov assault rifle belonged to the said Dawood Khan, who was the appellant's employer and had obtained licence for the same which was valid up to 1996. The appellant also produced such licence which showed that the licence had been issued to the said Dawood Khan for fire-arm No.56-15090692-7.62 mm China-made with four magazines. The appellant further claimed that for the T.T. pistol, he had himself been issued a valid licence. The appellant produced such licence which was valid up to 31-12-1994. The appellant produced another arms licence which was valid up to 31-12-1993.

7. The appellant also examined two witnesses in his defence, namely, D.W.1 Habibullah and D.W.2 Shahzad. Both of them deposed that the appellant was working as Chowkidar at the same Petrol Pump and he was woken up from sleep by the police on the day of the incident at about 7-30 or 8-30 a.m. The witnesses further deposed that about 20 or 25 persons had collected at the time of the raid.

8. The learned trial Court on the basis of the above evidence found the appellant guilty of being in possession of an unlicensed Klashnikov assault rifle alongwith bullets and sentenced him as pointed out earlier.

9. The main contentions of Mr. Qurban Ali Chohan, learned counsel for the appellant, before us have been firstly, that no independent person was taken as Mashir by the police at the time of the raid and secondly, that for the said Ylashnikov assault rifle, the appellant possessed a valid licence issued in the name of his employer, Dawood Khan. Similar contentions appear to have been made before the learned trial Court on behalf of the appellant but the learned trial Court was not convinced and the contentions were brushed aside. The learned trial Court was of the view that search of the place of the incident took place early in the morning and therefore, no private person could be available at the said time to act as a Mashir. The learned trial Court also was not impressed by the fact that the licence had been produced in respect of the Klashnikov assault rifle by the appellants as the said Dawood Khan who was alleged to be the owner of the said fire-arm was not examiners as a defence witness by the appellant.

10. As to the question whether it is imperative for the Investigating Officer to associate independent persons at the time of the search, it has been held by the superior Courts time and again that although provisions of section 103, Cr.P.C. in regard to search of the place of recovery are mandatory but such provisions are not absolute as strict compliance with the provisions of section 103, Cr.P.C. would depend upon the facts and circumstances of each case. In this regard Mr. Qurban Ali Chohan has placed reliance on the case of Yameen Kumhar v. The State P L D 1990 Kar. 275 and Sultan and others v. The State 1987 S C M R 1177. In fact so far as the proposition is concerned there can hardly be any cavil with the same, but what is to be seen is, whether strict compliance with the provisions of section 103, Cr.P.C. was possible in the present case. No doubt, according to the prosecution case the alleged raid took place at 5 a.m. but as was admitted by the prosecution witnesses the police party had to cross a Petrol Pump while going to the place of the incident. Admittedly the police party did not care to see whether the petrol pump was open which leaves no doubt that no effort was made by them to search for an independent person to act as a Mashir. The petrol pumps on the Highway, as the same in the present case was situated, remain open round the clock and if the police had any intention to secure an independent person for making the search, we have no doubt that they would at least have look for an independent person who might have been available at the said petrol pump, but as just pointed out, as per admission of P.W. Ghulam Rasool, the police even did not care to find out whether the petrol pump was open or not. It is, therefore, clear that there was no intention on the part of the police to associate an independent person to witness the raid. No doubt, as it has been held time and again by the Court that the Police Officers are equally competent to give evidence in the cases and their testimony without independent corroboration can be relied upon, but what is to be seen is whether the police made any effort to secure any independent person to act as a witness in the case. If no effort was made by the police to secure an independent person to act as a Mashir or a witness the same would render the entire. recovery doubtful. Furthermore; there is strong reason to believe that the Mashirnama was prepared by the police at the police station. Admittedly only one Mashirnama was prepared at the time of recovery of the said fire-arms and the contraband Charas and the police had weighed the Charas at the police station. Since the Mashirnama shows that weight of the Charas to be 220 Kgs. the only inference that can be drawn is that the same was prepared at the police station after the Charas had been weighed by the police. Consequently, there is a clear doubt about the recovery of said Klashnikov assault rifle from the possession of the appellant.

11. Turning to second contention of Mr. Qurban Ali Chohan, learned counsel for the appellant has pointed out that as per admission of P.W.1, Saeed Ahmed, the Klashnikov assault rifle secured from the possession of the appellant bore No.15090692 which was also found on the licence issued to said Dawood Khan. Consequently, even assuming that the appellant was carrying the said rifle as has been alleged by the prosecution, since the same was recovered at the Otak of Dawood Khan it cannot be said that the same was secured from the possession of the appellant as contemplated by section 9 of the Arms Act read with section 13-D of the said Act. Reliance has been placed by Mr. Qurban Ali Chohan, learned counsel for the appellant, on the cases of State through A: G. Sindh v. Muhammad Akbar Samejo 1992 S C M R 2310 and Muhammad Akbar Samejo v. The State 1992 P Cr. L J 1279. In the said cases reference was made to a number of cases including the cases reported as The State v. Ghulam Sabir P L D 1967 Pesh. 53, The State v. Raidool P L D 1967 Pesh. 116 and The State v. Noor Haider P L D 1967 Pesh.

192. In all the said cases it was held that temporary possession of fire-arm by a person cannot constitute possession to attract the provisions of section 9 of the Arms Act. In our view the said cases would have been attracted but for the fact that no witness was examined by the appellant in his defence to prove the authenticity of the said licence said to have been issued for the said Klashnikov rifle. Neither the owner was examined in defence nor the authority which had issued the said licence. However, since it has been held that the recovery of the said assault rifle from the possession of the appellant is doubtful, the appellant must be given benefit of doubt.

12. In the result, we allow this appeal and set aside the conviction and sentence of the appellant and the appellant be released forthwith unless he is required in any other case. N.H.Q./R-259/K Appeal allowed.