1. ' SALEEM AKHTAR, J.--C.I.A. Inspector, Abdul Jaleel Khan along with a police party was on his routine round of the area on 5-8-1989 when at about 12- 45 p.m. He arrived at Noor Mehal Chowrangi near Ship-owners College, and received information that one Pathan was bringing unlicensed arms in a taxi. The police party set up Naka Bani at Noor Mehal Chowrangi and started checking taxis passing that way. At about 4-00 p.m. Taxi bearing Registration No, 852-184 was seen coming from the side of Nusrat Bhutto Colony heading towards Orangi Town. The appellant was sitting in the taxi with a bundle wrapped in cloth. The police party stopped the taxi and asked the accused to get down. The bundle was seized from the accused in presence of Mashirs Changez Khan and Muhammad Aslam and on opening, it was found to contain. Klashnikov, bearing No, 195-B5892, fitted with a magazine loaded with 20 rounds and an extra magazine. The appellant was arrested and the mashirnama of arrest and recovery from his possession of the above arm and ammunition 'were prepared. It was signed by Misri Khan the taxi driver and two mashirs Inspector Abdul Jaleel then made a report at Nazimabad Police Station and F.I.R. Was registered at 1635 hours the same day. The arm and ammunition recovered from the appellant were sent to the Ballistic Expert for examination. The accused was challaned before the Special Court No,1 (Suppression of Terrorist Activities) Karachi. By the impugned judgment the learned trial Court convicted the appellant of an offence under section 9 read with section 13 (e) of the West Pakistan Arms Ordinance 1965 and sentenced him to R.I. For five years giving benefit of section 382 (b). The arm and ammunition recovered were directed to be forfeited to the Government. The prosecution has examined Misri Khan taxi driver, Changez Khan, mashir, Ghulam Abbas Jaffari A.I.-G. Ballistic Expert and Inspector Abdul Jalil of CIA. Further on an application made by the prosecution S.I.P. Lal Hussain and A.S.I. Nadir Khan were also examined.
2. ' Mr. Amir Hussain Shah the learned counsel for the appellant has contended that Changez Khan the mashir was a stock witness and therefore his evidence should be excluded from consideration.
3. From the evidence brought on record it is clear that Changez Khan is a witness who was used by the police time and again in several cases and further more his presence at that time at a bus stop does not seem to be normal. In cases where the incidents occur in public places, like bus stop, any witness available at that time who may not belong to that locality can be made mashir but the veracity and credibility of such witness can also be challenged if it is shown that even at a bus stop his presence was doubtful. Changez Khan has tried to explain his presence and denied that he had given any evidence in any Court for CIA. It has been established that he has been cited as witness on behalf of C.I.A. By Inspector Abdul Jalil in several cases. This proves that he is a stock witness and creates serious doubt on his credibility. His statement therefore was rightly excluded from consideration by the learned trial Court.
4. ' The learned counsel for the appellant then contended that as Inspector Abdul Jail having made Changez Khan a mashir insisted that he was never a police witness showed that he was telling lies and therefore he should not be relied upon. The investigating officer tried to maintain that Changez Khan had not been made witness in any other police case but several F.I.Rs, were produced in which he was cited as witness. This fact shows that the prosecution admittedly procured witnesses to ensure that they may support the prosecution during trial. Such attempt to ensure success in a criminal case should be deprecated. Only such persons should be made witnesses who are independent, truthful and have seen the incident. The Investigating Officer besides making Changaz Khan as mashir had also made investigation and recovered the arm therefore his statement should be considered with great caution and on his statement alone the prosecution cannot succeed. It should be corroborated by some independent and trustworthy witness. If such evidence is available then his statement may be taken into consideration so far recovery and arrest is concerned.
5. ' The prosecution after examining the Investigating Officer made an application for examination of two more witnesses namely S.I.P. Lai Hussain and A.S.I. Nadir Khan who were summoned and cross- examined. Both the Police Officers corroborated the statement of Inspector Abdul Jail and testified the arrest of the appellant and recovery of arms and ammunition from his possession after the taxi in which he was travelling was stopped by the police party. The learned Court took pains to ascertain that these witnesses were members of the police party which had taken round and in that regard station diary was also examined and their departure and arrival was ascertained.
6. According to those entries on 5-8-1989 at 11-15 a.m. They had departed alongwith Inspector Abdul Jalil. The entry made on the same day at 1715 hours in the station diary showed their return and bringing with themselves appellant Haji Abdullah Khan. However Mr. Amir Hasan Shah Advocate has taken exception that the mode in which these witnesses were called and examined had given undue advantage to the prosecution as they were examined after the statement of Investigating Officer and have thus improved upon the case and supported it in the light of his statement. It was further contended that their statement under section 161, Cr.P.C. Was not recorded nor a copy of such statement was made available to the defence. The provisions of Cr.P.C. Are intended to ensure proper, safe and just trial of the accused and in that regard several provisions have been made so that the accused should know beforehand the charge levelled against him and the witnesses who are to be examined against him. The fact that these two witnesses were not cited as witnesses in the challan and were not examined prior to the examination of Investigating Officer by the Court, shows that the prosecution felt necessity of filling in lacuna in its evidence. It is true that under section 540, Cr.P.C. The Court can examine any witness at any time but according to Mr. Amir Hasan Shah these witnesses were not summoned as Court witnesses but they were summoned by the prosecution itself. Be that as it may, the fact remains that these witnesses were examined at such a stage of the proceeding that it was likely to give advantage to the prosecution or a feeling of denial of a fair trial to the accused. Therefore, where after examining the witnesses cited in the challan the prosecution summons witnesses not mentioned in the challan nor their statement has been recorded under section 161 or 164, Cr.P.C. The testimony of such witnesses can be considered provided no prejudice is caused to the accused and there are no chances of improving the case by filling in the lacuna caused in the trial. Section 540 gives discretionary power to examine any witness as a Court witness at any stage of the proceedings. However the discretion should be exercised keeping in view the principles of safe administration of justice. The prosecution has a right to examine witnesses in any order it likes but when on close of entire case, witnesses not mentioned in the challan are sought to be examined, Court should ensure that no prejudice is being caused to the accused nor undue advantage is given to the prosecution. P.Ws. 5 and 6 are police officers, they were in the police party taking round but it does not mean that they were necessarily present at the time of recovery. They were examined after all the witnesses cited in the challan had completed their testimony. This was bound to give undue advantage to the prosecution particularly in the absence of statement under section 161, Cr.P.C. We are therefore not inclined to accept the testimony of P.Ws. 5 and 6.
7. ' The learned counsel for the appellant also contended that the place of preparation of mashirnama is also not ascertained and evidence in this regard is conflicting. P.W-1 has stated that mashirnama was prepared at a shop near the place of incident. Besides him two other persons had signed the mashirnama of recovery and search. Misri Khan has stated that near Shipowner's College there is a shop of grass-seller and a shop of earthen pots. Abdul Jalil Investigating Officer had stated that he had prepared the mashirnama but the place of mashirnama where he had prepared was not given and no cross-examination has been made on this point. However P.W-5 has stated that he had not gone to the shop for preparation of mashirnama. Lal Hussain has stated that mashirnama was prepared at the Chowrangi. The learned counsel for the appellant while referring to these statements has contended that there is conflict in the statement of P.W-1 and P.Ws-4 and 5. The shop seems to be very near where search was made and mere statement that it was prepared at the shop or at the Chowrangi which according to evidence are very near to each other hardly creates any doubt in the recovery or preparation of mashirnama.
8. The statement of Investigating Officer has been consistent and firm and no infirmity can be shown in it except that he secured Changez Khan as a Mashir. Due to this fact his entire testimony cannot be rejected provided it is corroborated by any independent and strong evidence. The evidence of mashir Changez Khan and P.Ws-5 and 6 may be discarded but the deposition of Misri Khan P.W-1 the taxi driver remains to be considered. He has supported the recovery and arrest and preparation of mashirnama to which he has subscribed his signature. He is a disinterested witness and nothing has been alleged against him. He is neither inimical nor biased against the appellant.
9. He is natural and neutral witness and had not reached there by chance. Therefore the prosecution case is fully corroborated by the unimpeachable and authentic statement of P.W1. Mr. Niaz Ahmed the learned counsel for the respondent has contended that conviction can be made on the testimony of one witness and has relied on Malik Aman v. The State 1986 SCMR 17. In this case while travelling in a bus the accused was found in possession of charas. The police official was the solitary witness and no other witness of recovery was examined. The defence challenged recovery on the ground that solitary witness should not be believed. It was observed as follows: "The first question raised by the learned counsel related to the weight and appreciation of evidence. There is no law that deposition of one witness should not be believed and accepted nor it was in contravention of any principle."
10. The statement of Investigating Officer is fully supported by Misri Khan and therefore in our view the prosecution has proved beyond reasonable doubt that arm and ammunition were recovered from the possession of the appellant. We therefore, dismiss the appeal.