1. The appellant was charged and tried under section 13-D of the Arms Ordinance, before the learned Additional City Magistrate, under section 30, Cr.P.C. Court No.Vl1, East, Karachi, who has convicted and sentenced him to suffer R.I. For five years vide judgment, dated 30th July, 1990.
2. The brief facts giving rise to the prosecution case are that on 30111 March, 1990, at 8-00 p.m. The applicant was found in possession of 'l trim rills loaded with four bullets, for which he had no licence. The same was recovered by Inspector Niaz Ahmed Niazi, of Rangers. The appellant was arrested and recovery was made in presence of Mashirs Muhammad Bostan and Gulzar, such Mashirnama was prepared and the same has been produced as Exh.4-A. Thereafter a report was lodged and the same has been produced as Annexure 4-B.
3. After necessary investigation the appellant was sent up before the Court.
4. A formal charge was framed against the appellant to which he pleaded not guilty.
5. At the trial, prosecution examined Inspector Niaz Ahmed Niazi -complainant P.W.1, he has produced Mashirnama of arrest and recovery as Exh.4-A and F.I.R. As Exh.4-B, Mashir Muhammad Bostan P.W.2, Muhammad Zuber, Investigating Officer, P.W.3.
6. After close, of the prosecution case, the statement of the appellant was recorded under section 342, Cr.P.C. In which he denied the allegations. He has further stated that he was arrested from the house of one Shamim and nothing was recovered from them. He has also examined himself on oath, as envisaged by section 340(2), Cr.P.C. And has stated that when he and Shamim were taken by police/Rangers to the Head Quarters, Inspector Niaz Ahmed Niazi demanded Rs.25,000 from him for his release but on his refusal he was involved in this false case. He has also examined Nazir Ahmed D.W.1, and Matloob Alam D.W.2 in his defence.
7. The learned trial Magistrate A.C.M. After taking into consideration the evidence produced by the prosecution and defence, has convicted the appellant as described above.
8. The present appeal is directed against the above judgment of conviction.
9. I have heard Mr. Nihal Hashmi, learned counsel appearing for the appellant, Mr. Hayat Qureshi, learned counsel appearing for the State, and have gone through the evidence.
10. It was contended by Mr. Nihal Hashmi, learned counsel appearing for the appellant that there was non-compliance of provisions of section 103, Cr.P.C. Inasmuch as the Mashirs of recovery were subordinates of the complainant, and no independent Mashir was cited as a witness. It was further contended that the second Mashir was not examined by the prosecution and, thereby, the case of the appellant was prejudiced. He has further contended that the F.I.R. Was belated and no reliance could be placed on the same.
11. Mr. Muhammad Hayat Qureshi, learned counsel appearing for the State has contended that the evidence of complainant Niaz Ahmed and Mashir Muhammad Bostan is independent, straightforward and natural. The same has not been shaken in cross-examination in any way and, therefore, the prosecution has proved its case beyond reasonable doubt against the appellant.
12. I have considered the contentions. As far as the evidence of complainant Inspector Niaz Ahmed Niazi is concerned, he has fully supported recovery of rifle, which is said to have been loaded with four bullets. His evidence has not been shaken in cross-examination in any way. Even no question was suggested to him that he had demanded Rs.25,00? From the accused/appellant as illegal gratification, and on his refusal to pay he was implicated in this false case. This appears to be afterthought and has been advanced merely as a defence. As far as Muhammad Bostan was concerned, his evidence has gone unchallenged, and not a single question was put to him in cross-examination to challenge his veracity and, therefore, there is no reason to disbelieve the evidence of complainant and Mashir Muhammad Bostan. As far as the defence witnesses are concerned, they belong to the Mohallah of the appellant, and their names were not suggested in cross-examination, and therefore, their evidence appears to be afterthought and cannot be relied upon. Adverting to the first contention of Mr. Hashmi that there was non-compliance of provisions of section 103, Cr.P.C., the Rangers party was on patrol duty in the area and they suddenly came across the appellant and one Shamim and therefore, they were searched .7 m.m. Rifle loaded with four bullets was recovered from the appellant. Moreover, section 103, Cr.P.C. Applies to house search or enclosed places, and it does not apply to personal search when' taken at the public place. In this connection reliance is placed on the case of Rehmat v. State PLD 1976 Lah. 144.
13. Moreover the police witnesses are as good witnesses as any other person unless it is shown that such police witnesses had animosity against accused and their evidence cannot be ruled out of consideration on this ground.
2. In the case Usman v. The State PLD 1978 Kar. 593, it was observed by a Division Bench of this Court that: "The police officer who was not hostile to the appellant is as good a witness as any other person and his evidence is not to be suspected merely because he is a police officer."
3. In the case of Rehan v. State 1976 SCMR 72, wherein the petitioner was convicted under section 13(e) of the Arms Ordinance, and it was contended on his behalf that the only witnesses of recovery were police officers and therefore, it was a case where petitioner could be given benefit of doubt.
14. The contention was repelled and it was observed by their Lordships of the Supreme Court that: "The mere fact that both the witnesses of recovery are police officers is no reasonable ground for disbelieving them particularly when they were never cross-examined."
4. In the case of Kamir v. Nazir Ahmed and others 1980 SCMR 791 it was observed that; "There is no rule that the evidence of a police officer as to the recovery of incriminating article cannot be accepted whatsoever the circumstances of the case. Since Investigating Officer had no motive to falsely implicate the accused and his evidence appeared to be truthful, the same was relied upon:"
15. However, I have given my anxious consideration to the question of sentence. The appellant remained in custody for nearly 24 days as under-trial prisoner, and has been in custody from the date of his conviction. He is said to be a student and is not a. Previous convict. I, therefore, reduce the substantive sentence from five years to three years. The appellant shall be entitled to the benefit of provisions of section 382-B, Cr.P.C. In respect of the period he has remained in custody as undertrial prisoner and after his conviction.
16. With the above modification in sentence the appeal is dismissed.