RAJA AFRASIAB KHAN, J.Arshad Zubair son of Akhtar Adil was convicted under section 13 of the Arms Ordinance, 1965 by the learned Judge Special Court (Suppression of Terrorist Activities), Gujranwala for having been found in possession of a Klashnikov alongwith 80 live cartridges without holding a valid licence on 27-3-1991 and was accordingly sentenced to undergo four years'
R.I. Plus a fine of Rs.20,000 or in default to suffer further R.I. For one year. Benefit of section 382-B, Cr.P.C. Was given to the appellant. The appellant challenged his conviction and sentence by filing this appeal before this Court.
2. The facts, in brief, are that on 27-8-1990, Aamer Ijaz Akbar, M.I.C. Liaqat Ali, M.I.C., Malik Abdul Aziz, D.S.P. City, Zulfiqar Ali, S.H.O., Police Station, Haji Para, Bashir Ahmed S.I./S.H.O. Alongwith other police constables constituted a raiding party to conduct a raid upon the residential premises of Akhtar Adil alias Gugg in street known as Sunheri Masjid Wali, Sialkot City. The raiding party entered into the house of Akhtar Adii. The appellant, Arshad Zubair, son of Akhtar Adil at that time came-out of the house holding a bundle in his hand. He was over-powered by the party and a search was made upon his person, in consequence thereof, a packet containing four kilograms heroin, a Klashnikov and a magazine with 80 bullets, were recovered from his possession. The appellant was keeping illicit weapon in his possession for which he failed to produce any licence. He was, thus, challaned under section 13 of Arms Ordinance, 1965. Muhammad Bashir, S.I./S.H.O., Police Station, Neka Para on the statement of Aamer Ijaz Akbar, M.I.C., Sialkot, registered the case against the appellant and challan against him was submitted for his trial before the learned Special Judge (Suppression of Terrorist Activities), Gujranwala.
3. The prosecution in order to prove. Its case against the appellant produced Muhammad Bashir, S.I., P.W.1, Aamer ljaz Akbar, P.W.2, Zulfiqar S-I., P.W.3 and Shaukat Ali, S.I./S.H.O., Police Station Cantt.
P.W.4. Muhammad Hanif Naseem, Fire Arms Expert, Forensic Science Laboratory, Lahore was summoned as a Court-witness (C.W.1). Muhammad Bashir, P.W.1, recorded the formal F.I.R. Exh.P.A.
On 27-8-1990 at 11-35 a.m.; Aamer Ijaz Akbar, M.I.C., P.W.2 was leader of the raiding party. He conducted the raid at the residence of Akhtar Adil and in consequence thereof, the appellant was apprehended red-handed at the spot and from his possession, a Klashnikov, P.1, magazine, P.2 containing 20 live cartridges and 60 spare live cartridges and four packets containing heroin weighing one kilogram each were recovered. The said articles were taken into possession vide memo. Exh.P.C. By the raiding party and was attested by Tasneem Ghani, S.H.O., Police Station Kotwali and Zulfiqar Ali, S.H.O., Police Station Cantt. He further stated that the appellant failed to produce any valid licence for keeping said Klashnikov with him. Zulfiqar, S.I. P.W.3 was also a member of the raiding party. He materially supported the statement of P.W.2, Aamer Ijaz Akbar and deposed that Klashnikov P.1 alongwith his magazine, P.2 and 80 live cartridges, P.3/1-80 was recovered from the person of the appellant at the time of raid. To the same effect is the statement of Shaukat Ali, S.I., P.W.4. He was also a member of the raiding party. He too supported the prosecution version in its entirety.
4. The appellant in his statement under section 342, Cr.P.C. Denied the allegations levelled against him. He took the usual plea that on account of established enmity with his father, he was implicated in this false case by the police and the local administration. He disclosed that his father, Akhtar Adil, filed a writ petition against Tasneem Ghani, P.W. And other police officials for registration of a case against them before this Court. The said Police Officer, thus, became inimical towards him. He pleaded innocence. Appellant in support of his plea produced Ibrahim son of Hassan Din, D.W.1 and Hafiz Asghar Butt son of Ghulam Haider as D.W.2. Ibrahim, D.W.1 deposed that members of the family of the appellant were apprehended one by one by the raiding party without any justification on the day of occurrence. He stated that nothing incriminating was recovered from the possession of Arshad Zubair, appellant, in his presence. Statement of D.W.1 was supported by Hafiz Asghar Butt, D.W.2. He also reiterated that nothing was recovered from the possession of the appellant. He was brought out of the house empty handed at the relevant time in the presence of 20/25 persons of the locality. Documentary evidence was also produced by the appellant 'to support the plea of enmity. Certified copies of various orders of this Court and the grounds of writ petitions were placed on record to show that there was any enmity between the appellant and the local administration before the registration of this case. The defence evidence was, however, turned down by the learned lower Court on the ground that it was not difficult to produce such like witnesses while believing the case of the prosecution.
5. Khawaja Sultan Ahmed, learned counsel, forcefully contends that there is overwhelming material available on record to demonstrate that the appellant and his father, Akhtar Adil, had been riling writ petition against the local police as well as local Magistrate. Learned counsel maintains chat in one of these petitions moved by the appellant; Arshad Zubair, apprehended that he would be implicated in false cases by the local police at the instance of the Magistrate against whom writs were filed in the High Court by the appellant. It is contended that under the provisions of section 103, -Cr.P.C., no member from the public was cited to witness the recovery of Klashnikov from the appellant. According to him, the recovery proceedings were directly hit by mandatory provisions of section 103, Cr.P.C. According to learned counsel, institution of a criminal complaint by the appellant and Constitutional petitions filed by him against the Police before this Court were proved to have been filed before the registration of the case in hand. He argues that the appellant was implicated in the case out of malice and enmity and that the appellant was a law abiding citizen and that the charges levelled against him were wholly false and baseless. Learned State counsel supports the conviction and sentence of the appellant. He maintains that there was sufficient evidence on record to justify the conviction of the appellant inasmuch as the documentary evidence was fabricated in order to defeat the very ends of justice.
7. We have heard learned counsel for the parties at considerable length and have read the whole record with great care. We hold the view that provisions of section 103, Cr.P.C. Were not attracted to the facts and circumstances of the case in hand. Appellant was apprehended by the raiding party outside his house when he tried to leave his house with the weapon. Even otherwise, the provisions of section 103, Cr.P.C. Are not mandatory and are surely directory in nature. It is well-settled law that members of the police force are as good witnesses as witnesses from the public. The fact that the appellant instituted a complaint against the police and local Magistrate before the registration of the case in hand against him would not show that there was mala fides on their part and that as a counter-blast, the appellant was involved in this case. It is not believe-able that such a huge quantity of heroin and a Klashnikov P.1 with a large number of bullets could be planted upon the appellant with a view to take revenge from him because his father filed writ petitions before this Court against the police. Perusal of the documentary evidence placed on record shows that the appellant and this father had been filing writ petitions in this Court with a view to create evidence favourable to them against the police and the local administration. The orders and the grounds of writ petitions placed on record show that said orders were passed in routine giving directions to the local administration to act according to law. Needless to observe that every public functionary and citizens are required to act according to law in performance of their duties. Similarly, institution of the complaint against the local Magistrate and the police shows that a statement alone on oath was made by the complainant and thereafter proceedings in the complaint were not brought to their logical conclusion. This, of course, speaks against the appellant that he was out to create some evidence against the police. We are convinced that the documentary evidence produced and relied upon by the appellant does not create any dent in the truthfulness of the prosecution version. A substantial quantity of heroin and a Klashnikov with ammunition were recovered from the appellant when he was caught red-handed at the spot. It cannot be believed that two Magistrates and the police had any animosity against the appellant. They are public functionaries and as such in the performance of their duties, they raided the premises of the appellant and in consequence recoveries were effected from him. We, therefore, do not find any solid reasons to disbelieve the prosecution evidence in that behalf. The prosecution has succeeded beyond any reasonable doubt to prove its case against the appellant. The conviction and sentence recorded against the appellant are based upon cogent reasons. He relied upon the witnesses of the prosecution and rejected the documentary evidence of the appellant. We accordingly uphold the conviction and sentence of the appellant.
7. Result of the above discussion is that there is no substance in the appeal which is hereby dismissed.
N.H.Q./A-43/L