MUKHTAR AHMAD JUNEJO, J.-- Appellant Abdul Reheem has questioned his conviction for the offence punishable under section 13(d) of the Arms Ordinance and his sentence of R.I. For five years ordered by the Special Court No. 1 (Suppression. Of Terrorist Activities) Karachi on 16-2-1991.
2. According to the prosecution on the night between 16th/17th December, 1990 a police party headed by S.I.P. Mohammad Iqbal Niazi of C.I.A. Left for patrol duty. While performing patrol duty the police party reached near drive-in cinema where they received an information at 1.00 a.m. That a person available behind the bushes and carrying bag on his shoulder was about to hand over arms and ammunition to some body. On received such information the police party rushed to the suggested place where the appellant was found carrying a bag on his shoulder. He was stopped and the bag was secured from him. He disclosed his name as Abdul Reheem and the bag on opening was found to contain five kalashnikovs and five magazines. The same were secured and the appellant was arrested under a mashirnama. Since private persons were not there as ASI Mohammad Ali and H.C. Mohammad Hanif acted as mashirs. Subsequently H.G Mohammad Hanif was deputed with written report to police Station Shahrah-e-Faisal Karachi where case under section 13-D of Arms Ordinance was registered against the appellant.
3. The case at said police station was registered on written complaint of SIP Mohammad Iqbal Khan Niazi who investigated the case. The recovered property was sent to the Ballistic expert who Examined the same and issued report. Interrogation of the appellant showed that the arms in question were meant for sale. On completion of investigation the case was challaned.
4. The appellant pleaded not guilty to the charge Exhibit-2 containing the prosecution allegations.
Prosecution examined PWs. Mohammad Ali Niazi Exhibit-3. Mohammad Iqbal Niazi Exhibit-4 and Sher Mohammad Exhibit-5.
5. In his statement Exhibit-6 the appellant denied the prosecution allegations and stated that all the witnesses against him were police officers. Appellant took plea that he was picked up from a cabin near drive-in cinema with no recovery from his possession. He added that he was taken by the police to CIA Centre where he was seriously beaten. That ultimately he was falsely implicated in this case by police at the instance of persons who have tribal enmity with him.
6. In his defence the appellant gave a statement on oath Exhibit-7 and examined DW. Shujauddin Exhibit-8. At conclusion of the trial learned trial Court convicted the appellant and sentenced him to imprisonment as already stated. Hence this appeal.
7. Mr. Zia Ahmad Awan, learned advocate who was appointed to argue case of the appellant contended that all the witnesses against the appellant were police officers that there were many houses at the place of the recovery, yet no independent person was picked up to act as mashir.
Learned counsel further argued that there were contradictions about the time of receiving the spy information and about the time of recovery of the arms, because as per deposition of ASI Mohammad Ali Exhibit-3 spy information was received at 1.15 a.m. And as per the prosecution case the recovery took place at 1.00 a.m. It was contended that recovery could not have taken place at 1.00 a.m. When spy information was received at 1.15 a.m. Learned counsel further argued that it must be quite dark at 1.00 a.m. And as such mashirnama of recovery could not have been prepared at the {dace of recovery and that the mashirnama did not state if there was any light at the place of recovery and this showed that the mashirnama of recovery was prepared in CIA Centre where police statements of the witnesses were recorded. It was also argued that the appellant was a disabled person inasmuch as his right arm was not in a position to carry any kalashnikov and that his other arm could not have carried the load of 5 kalashnikovs. Learned counsel referred to the defence evidence of Shujauddin Exhibit-8 who deposed that the appellant who was running a cabin in front of his shop was a crippled person and that he was picked up by a police party at 11.00 a.m. On 12-12-1990 and that this information was given to brother of the appellant. In support learned counsel for the appellant cited the case of Yameen Kumhar Vs. The State PLD 1990 Karachi 275.
8. Mr. Mohammad Zubair Qureshi advocate for A.G. For State supported conviction of the appellant.
He argued that if intention was to implicate the appellant falsely then one kalashnikov was enough to be foisted upon the appellant. It was added that police had no reason to foist 5 kalashnikovs upon the appellant for the purpose of implicating him falsely in the case. As regards absence of the private witnesses, learned counsel for State contended that the recovery took place at an odd hour of night and at that time private persons could not have been present to act as mashirs. It was further argued that there was no controversy about time of receipt of spy information and the time of recovery because FIR Exhibit-5/A as well as depositions of witnesses indicated that the recovery took-place at 1.15 a.m. And that the spy information was received at 1.00 a.m. As regards disability of the appellant it was argued that 5 kalashnikovs were carried by the appellant in a bag which was tied with his shoulder and it was not being carried by the appellant with any of his hands. It was also argued that recording of police statements in CIA Centre did not have adverse effect cm the investigation and that the mashirnama was prepared at the place of recovery.
Learned counsel for State cited the case of Wasiuddin Khawar Vs. The State (1988 Pak. Cr.LJ, 2331).
9. We thought it necessary to have a look at the appellant who was physically called in Court. We found right arm of the appellant to be defective but his left arm was quite normal. However, the prosecution allegation was that the appellant was carrying 5 kalashnikovs in a bag, the load of which was lying on his shoulder. Hence even if one arm of the appellant was defective that does not belie the prosecution evidence about recovery of kalashnikovs.
10. ASI Mohammad Ali Niazi Exhibit-3 and SIP Mohammad Iqbal Niazi Exhibit-5 fully supported the prosecution story about receipt of spy information and about spotting of the appellant at katcha pacca road near Hina Bungalows behind the bushes. SIP Mohammad Iqbal Niazi said that spy information was received at 1.00 a.m. That a person was to deliver arms and ammunition and that he was available behind the bushes near kacha pacca road of Hina Bungalows. ASI Mohammad ALi Niazi Exhibit-3 said that he was informed by SIP Iqbal Ahmad Niazi at 1.15 a.m. That an information had been received that a person on katcha pacca leading to Hina Bungalows was available with unlicensed arms and ammunition for delivery to some body. In this way both the witnesses supported the mashirnama of recovery Exhibit-3/A. It was not put to either of the said witnesses in their cross-examination if the mashirnama Exhibit-3/A was prepared at 1.00 a.m.
11. There is force in the contention of the learned counsel for State that since the recovery took place at an odd hour of night hence recovery evidence cannot be disbelieved for want of private mashirs. The appellant did not allege enmity with any of the prosecution witnesses and mere fact that PWs Mohammad Ali and Mohammad Iqbal were police officers does not mean that they were incapable of telling the truth. In the case of Sohail Amjad Vs. The State (1986 SCMR 1482) it was observed that there is no law that the police officials cannot be believed when there was nothing on record to show that the police officers were in any way inimical to the accused.
12. In the trial Court the appellant did not raise the point that there was no sufficient light at the place of recovery for the purpose of preparing the mashirnama of recovery. In the case of Yameen Kumhar Vs. The State (PLD 1990 Karachi 275) the view taken was that where during investigation of a crime recovery is made from any inhabited locality compliance with section 103 of Cr.P.C, must be made and said section cannot be ignored or brushed aside on the whims and caprices of the Investigating officer except on well founded ground and in exceptional cases. In the cited case the recovery of two kalashnikovs and the magazines was effected from a stock of fire wood and not from any person. Hence the cited case does not apply. In the case of Wasiuddin Khawar Vs. The State emphasis has been placed on compliance of the provisions contained by section 103 of Cr.P.C, but it was held that rule about picking up of two respectable inhabitants of the locality to witness search of a house from where recovery was made was not absolute and a search could be conducted without taking such witnesses if there is no time available or the evidence is likely to be destroyed if search is delayed or suitable persons of the locality are not available. In the peculiar circumstances of this case it was difficult if not impossible for police to procure private persons to witness the search and there was risk of the appellant fleeing away. Hence non-picking up of private persons to witness the recovery is of no consequence in a case of this nature.
13. For the foregoing reasons we maintain conviction and sentence of the appellant and dismiss this appeal. However, we direct that the appellant be given benefit of section 382-B Cr.P.C. These are reasons for our short order dated 9-7- 1991 in identical terms.