1999 PLP 948 (MLD)

By this appeal appellant Muhammad Iqbal, has challenged the judgment dated 12-5-1993 of learned Judge, Special Court No.1II for Suppression of Terrorists Activities, Karachi, whereby he was convicted under section 13-E of Pakistan Arms Ordinance, 1965 and sentenced to suffer R.I. for five years with no benefit -to section 382-B, Cr.P.C.

2. Briefly, the facts of the prosecution case are that on 22-3-1992, appellant Muhammad Iqbal during interrogation in Crime No.32 of 1992 of Police Station Sukhan volunteered to produce China rifle alongwith 37 live rounds and led the police and Mashirs and got the same reovered from the house of one Quaid-e-Azam, co-accused, in the abovementioned crime. Since the appellant failed to produce its licence, as such he was booked in the above case and was challenged before the abovementioned Court. A formal charge under section 13-E of Pakistan Arms Ordinance, 1965 was framed against the appellant to which he denied and claimed trial.

3. At the trial prosecution examined P.W. Ali Muhammad, P.W.2 Allah Mehar and P.W.3 Inspector Hashim Khan and closed the side.

4. Statement under section 342, Cr.P.C. was recorded in which the appellant denied the case of prosecution and claimed that he has been falsely implicated in the case. He, however, examined himself on oath as required under section 340(2), Cr.P.C. but not produced any evidence in defence. The trial Court framed following point for determination:-- "Whether the accused Muhammad Iqbal son of Bundo Khan led the Police party to the house of one Quaid-e-Azam at Nai Abadi, Cattle Colony, Landhi, Karachi on 22-3-1992 and got recovered one China Rifle alongwith 37 live rounds in the way and manner as alleged by the prosecution. " On the assessment of evidence appellant was found guilty under section 13-E of Pakistan Arms Ordinance, 1965 and was convicted and sentenced as above.

5. We have heard Mr. Sardar Muhammad Ishaque, learned counsel for the appellant and Mr. Habib Ahmed, learned Assistant Advocate-General at length and have gone through the record and proceedings of the case. Admittedly this case, being the offshoot of main case, viz, Crime No.32 of 1992, cannot be decided in isolation and would in full force be influenced by its decision. Since we had disbelieved the said recovery of China rifle and 37 live rounds from the appellant in the main case and have acquitted him from that charge, as such it would not be appropriate to believe the same in the present case. In order to substantiate what has been observed above, we deem it necessary to discuss the relevant evidence on the point. P. W. Ali Muhammad, the complainant of the main case, in his examination-in-chief in this case, has categorically said that on 22-3-1992, appellant led the police party to the house of Quaid-e-Azam and knocked his door and it was Quaid-e-Azam who brought rifle alongwith 37 live rounds, the case property, from his house, P. W. Allah Mehar, Mashir of the recovery from the appellant, deposed too in the similar manner and has stated that it was Quaid-e-Azam who produced one rifle and 37 rounds from the roof of his house and the appellant was simply present at that time. On this Investigation Officer Hashim Khan has also stated in his deposition that the appellant during interrogation led police party and the Mashirs to the house of Quaid-e-Azam where he entered inside the house and arrested Quaid-e-Azam. Quaid-e-Azam produced one rifle from the roof, made if iron sheets, where he had concealed the same.

6. From the above discussion, it becomes evident that the abovesaid articles were not recovered from the exclusive possession of the appellant, but it was co-accused Quaid-e-Azam who produced the same from the roof of his room. Even otherwise, the very provisions of section 13-E of Pakistan Arms Ordinance, 1965 are clear, whereunder it is said that whoever has in his possession or under his control any arms ammunition or military stores in contravention of provisions of section 9, would be said to have committed the offence. Here it is neither proved that the appellant had the possession of case property ever nor the same was under his control at any time.

7. Irrespective of above, the provisions of section 103, Cr.P.C. have also not been followed while conducting search in the house of co-accused Quaid-e- Azam by not associating two or more respectable inhabitants of the locality, though Investigation Officer has admitted that the house, from which recovery took place, was situated in a thickly populated area and he did not ask anyone at the place of Vardat to witness the search and act as Mashir. Its compliance becomes mandatory in the cases where a recovery is made from any inhabited locality during the investigation of a crime. In this case also it was during the investigation of murder case, the appellant is said to have led the police party to the recovery of crime property. Having prior information, it was incumbent upon the Investigation Officer to arrange for two private Mashirs to witness the search and its failure to do so renders the entire exercise illegal and conviction and sentence cannot be sustainable in law For the foregoing reasons we are of the opinion that the evidence of P. Ws. in this case is inadequate to convict the appellant in peculiar circumstances of the case. Accordingly, we allow the appeal, set aside the conviction and sentence and acquit the appellant of the charge. He shall be set at liberty. The above are the reasons of the short order dated 12-5-1998. N.H.Q./M-334/K Appeal allowed.