SALAH-UD-DIN and anothers vs THE STATE

' This Criminal Appeal No,71 of 2004 arises out of Judgment, dated 17-7-2004 of learned Sessions Judge/ Special Judge, Lakki Marwat whereby appellants Salahuddin and Basurllah Jan involved in case F.I.R. No 359, dated 8-9-2002 registered at Police Station, Lakki Marwat were convicted under section 13 West Pakistan Arms Ordinance, 1965 and section 5 of the Explosive Substances Act, 1908.

On conviction under section 13 Arms Ordinance, appellant Salahuddin was sentenced to suffer three years, R.I. And fine of Rs,1,000 or in default thereof, to undergo further S.-I. For one week. On conviction under section 5 of Explosive Substances Act, he was sentenced to three years R.I. And fine of Rs,1,000 or in default thereof, to one week S.I. Both the sentence were ordered to run concurrently with benefit of section 382-B, Cr.P.C. Extended to him. On conviction under section 13 Arms Ordinance, accused Basrullah Jan was sentenced to the period already undergone by him.

2. Succinctly stated facts of the case are that on 8-9-2002 P.W. Muhammad Tahir Khan S.H.O., Police Station Lakki received information from P.W. Obaidullah A.S.-I. That unknown persons armed with .30 bore pistol and Kalashnikov have robbed cash amount of more than Rs,1,00,000 from the shop of Samar Gul in Lakki City and have run away towards Gulli Kalla. On this information, P.W.

Muhammad Tahir Khan along with other police officials chased the culprits and succeeded to apprehend them. On asking, they disclosed their names as Salahuddin son of Haji Qasim Khan and Basrullah Jan son of Ghulam Haider, residents of Aba Khel, Tehsil and District Lakki Marwat. From possession of accused Salahuddin, a Kalashnikov, a bandolier containing rounds, a handgrenade, a dagger and a sum of Rs,109,500 were recovered. From possession of accused Basrullah Jan, a .30 bore pistol was recovered. The cash amount and the Arms and Ammunition were taken into possession. The accused were arrested and after completion of investigation, P.W. Muhammad Tahir Khan, S.H.O. Submitted challan against the accused in Court.

3. In order to bring home the charge against the accused, the prosecution produced as many as three witnesses in support of its case. The accused in their statements recorded under section 342, Cr.P.C. Repudiated the prosecution allegations levelled against them and professed innocence.

Appellant Basrullah Jan neither appeared as his own witness on Oath nor produced any evidence in defence whereas appellant Salahuddin appeared under section 340(2), Cr.P.C. And also produced two witnesses namely Shaista Khan (D.W.2) and Noor Illahi Dad (D.W.3) in his defence.

4. On conclusion of the trial, learned trial Court finding both the appellants guilty of the offence, convicted and sentenced them as mentioned above.

5. Mr. Ehsanul Haq 'Malik, Advocate for the appellants contended, inter alia, that the impugned Judgment and order of conviction is manifestly against the law, facts and material available on the record of the case and findings arrived at are, on the face of it, erroneous and illegal and cannot be allowed to remain intact. The learned counsel submitted that P. Ws contradicted each other on material particulars which has made the recovery highly doubtful. Additionally, he' urged that Arms allegedly recovered from possession of the appellants were not sent to Fire-arms Expert to determine as to whether they were serviceable or not and that despite prior information, the provisions of section 103, Cr.P.C. Were flagrantly violated and no independent witness was associated with the recovery proceedings.

6. As against that, Mr. Muhammad Sharif Chaudhry, learned Deputy Advocate-General for the State supported the impugned judgment of conviction and maintained that keeping in view the material on file, the trial Judge was quite justified to place reliance on the prosecution evidence and make the same basis of conviction of the accused and the impugned judgment is not open to legitimate exception.

7. I have given my mature consideration to the arguments addressed by learned counsel for the parties at the bar with reference to material available on the record.

8. It is the case of the prosecution that pursuant to information regarding the occurrence, the local police chased the culprits, apprehended them and recovered the looted amount and the Arms and ammunition from their possession. To prove the factum of apprehension and recovery, the prosecution has produced two police officials namely S.-I. Tahir Khan (P.W.2) and A.S.-I. Obaidullah Khan (P.W.3). Admittedly, both the witnesses belong to police department and despite advance information, no effort seems to have been made to associate independent and disinterested witness from the, locality with the recovery proceedings. No reason for this omission has been given. Departure from provisions of section 103, Cr.P.C. Can be made only in exceptional cases, as A where compliance with the provisions was impracticable. Violation of requirements of section 103, Cr.P.C. Would make recovery unreliable. In this view of the matter, reference can be made to 1995 PCr.LJ 455, 1992 M LD 614 (DB) and 1998 PCr.LJ 679 (DB). Moreover, the Arms and ammunition recovered from possession of the appellants were not sent to Fire-arms Expert to ascertain as to whether they were in serviceable condition or not. This lapse on the part of Investigation Officer in also fatal to the prosecution case and nullifies the entire exercise. Appellant Salahuddin produced two defence witnesses namely Shaista Khan and Noor Illahi Dad. Even if both the versions, one put forward by the appellant and the other put forward by the prosecution, are considered in a juxtaposition, then the version of the appellant seems more plausible and convincing and near to truth while the version of the prosecution is totally false.

9. In the result and for the foregoing reasons, from whatever angle the 'prosecution evidence is looked at, it does not inspire confidence and as such the charge against the accused appellants cannot be held to have been proved beyond shadow of reasonable doubt. Resultantly, accept this appeal, set aside the impugned judgment of conviction and sentence and acquit the appellants of the charge. They be set free forthwith from Jail if not required in any other case.