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Criminal Appeal No. 34 of 1985, decided on 17th September, 1985.

--‑S. 13‑D‑‑Recovery‑‑During investigation of a murder case, revolver and some bullets, recovered from accused‑‑Witnesses of recovery not found to be of same locality‑‑Recovery taking place in a thickly populated area but no independent witness of locality was secured by police and no reason given for such omission‑‑One of recovery witnesses also appeared as eye‑witness in main murder case‑‑Provisions of S. 103, Cr.P.C. having not been complied with, recovery, held, could not be accepted‑‑Accused acquitted.‑‑[Recovery].

Muhammad Sarwar Sadiq v. Muhammad Sarwar and 2 others 1979 SCMR214 ref.

Muhammad Hayat Junejo for Appellant.

Agha Ghulam Ali for the State.

Dates of hearing: 11th and 12th August; 1985.

By the short order appeal was allowed. The reasons for the same are hereby recorded.

2. The appellant has been convicted and sentenced under section 13‑D of the Arms Ordinance by the learned Additional Sessions Judge III, Karachi to suffer R.I. for two years and to pay fine of Rs.3,000 in default of payment of fine to suffer further R.I. for one year.

3. According to prosecution case, police was in search of the appellant for his arrest in a case under section 302/34, P.P.C. He was arrested and on his personal search a revolver of 32 bore with three live and two empty bullets were recovered. Thereafter, in this regard report was lodged. The recovery had been affected in presence of Abdul Majeed and Baig Muhammad. The prosecution examined Abdul Majeed and 1.0. The learned Additional Sessions Judge III, Karachi has accepted their statement and has observed that the provisions of section 103, Cr.P.C. have been fully complied with. The two witness; are not the witnesses of locality, they are residents of Jahanabad which is at a considerable distance from place of arrest of the accused. The Investigating Officer received spy information at the Golimar but the accused was arrested from a thickly populated area. No independent, witness of the locality had been secured by the police and no reason has been given for not doing so. The recovery witnesses Abdul Majeed also appeared as eye‑witness. As the provisions of section 103, Cr.P.C. have not been complied with, therefore, recovery cannot be accepted. In Muhammad Sarwar Sadiq v. Muhammad Sarwar and 2 others 1979 S G M R 214 it has been held that crime weapon recovered in brazen disregard of mandatory provisions of law had of no evidentiary value. In such circumstances the case against the appellant was not established. The appeal is accepted. The sentence and conviction is set aside.

H.A.K. Appeal accepted.

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