REHMATULLAH alias BABU vs THE STATE

' EJAZ AFZAL KHAN, J.--- On 27-6-1998 at 6-00 a.m. Sanaullah Khan, S.H.O. Raided the house of Rehmatullah alias Babu alongwith the police personnel. During the course of search he recovered one Kalashnikov foreign made bearing No,66-56-1-19103386, a waist-belt with two spare magazine containing 90 live rounds of 7.62 bore, one hand-grenade, one dagger from the possession of appellant Rehmatullah while one Kalashnikov, a waist-belt with spare magazine containing 60 live rounds of 7.62 bore from the possession of Gul Zariq Shah and as a sequel thereto registered a case under section 13, Arms Ordinance read with section 5 of Explosive Substances Act against the appellant and Gul Zariq, the acquitted co-accused vide F.I.R. No,206, dated 27-6-1998, Police Station Cantt.

2. On completion of investigation the case was forwarded to the Court of learned Judge, Special Court for trial.

3. On being charged when the appellant pleaded not guilty the prosecution examined as many as three witnesses, to prove the case against the appellant and his co-accused. On conclusion of trial the learned Special Judge sentenced the appellant to three years' R.I. Under section 5 of the Explosive Substances Act for possessing hand-grenade and further sentenced him to pay a fine of Rs,500 for possessing unlicensed D.B. Shotgun, a fine of Rs,300 for possessing dagger and in default of payment of fines to undergo six months' S.I. Under section 13, Arms Ordinance with the benefit of section 382-B, Cr.P.C. While Gul Zariq was acquitted vide order, dated 4-7-2001, impugned herein by way of instant appeal.

4. Learned counsel for the appellant contended that once it was admitted by the S.H.O.

Investigating the case that he had an information in advance about the presence of the appellant in his house it was all the more necessary for him to take along two respectable inhabitants of the locality for witnessing the search as it is mandatory requirement of section 103, Cr.P.C. And any search or recovery made in violation of the aforesaid provision of law cannot be relied upon.

5. On the other hand the learned Deputy Advocate-General by referring to the F.I.R. No,202, dated 23-6-1998 under sections 324/148/149, P.P.C. Police Station Cantt. Contended that the accused was required in a case mentioned above; that the house was raided with immediacy so that the accused might not escape, therefore, two respectables could not have been associated to witness the search and that this factor alone is not sufficient to warrant acquittal of the appellant when evidence against him rings true and inspires confidence.

6. We have gone through the evidence and evaluated the arguments addressed at the Bar by the learned counsel.

7. The record reveals that the house wherefrom the incriminating material was recovered was in possession of more than one person at least at the time of search and the alleged recovery. The statement of Sanaullah Khan, S.H.O., who was examined as P.W.2 admitted at the close of his cross- examination that he could not say as to who took into possession the Kalashnikov etc. From the possession of the accused, now appellant before us, while Inayatullah, A.S.-I. Examined as P.W.3, stated in his cross-examination that the incriminating articles were recovered from the possession of the appellant by the S.H.O. It is also apparent from the record that at the relevant time besides appellant, Gul Zariq, acquitted co-accused was also present. Whether the incriminating material belonged to the appellant or to the acquitted co-accused is a question which cannot be answered with any amount of certainty as far as the evidence on the record goes, especially when both the witnesses gave a mutually contradictory statement as to the factum of recovery.

8. Besides this when the search of the house and the alleged recovery therefrom were made by the police in contravention of the mandatory provisions of section 103 of the Cr.P.C. Despite information in advance and no plausible explanation for not associating two respectables of the locality has been given by the P.Ws., no reliance, whatever can be made on their evidence, moreso when it suffers from irreconcilable contradictions.

' For what has been discussed above, we accept this appeal, set aside the impugned judgment and acquit the appellant. He shall be set at liberty forthwith if not required in any other case.