1. ' IMAM ALI G. KAZI, J.---The appellant, Sarwar Khan, has been convicted by the Judge, Special Court-II (Suppression of Terrorist Activities), Karachi by his judgment passed on 6th May, 1991, under section 13-B read with section 8 of the Arms Ordinance 1965 and sentenced to suffer rigorous imprisonment for 4 years and pay a fine of Rs,25,000 and in default in payment thereof undergo rigorous imprisonment for 6 months more. For the purpose of computing the above sentence he has been given the benefit provided under section 382-B, Cr.P.C. It is against this judgment that the present appeal has been filed.
2. ' The case of prosecution briefly stated is that on 22-8-1990 at about mid-night a Police party headed by Muhammad Latif, SHO Bahadurabad, left. Police station for patrolling his area. S.I. Sabir Hussain, S.I. Mughal Khan, ASI Muhammad Akram and Head Constable Manzoor Khan accompanied him in a Police Van. At about 1-30 a.m. They reached Crossing of Ghazi Salahuddin Road. They got down from the van and started checking. While they were there, they found a person approaching Chowk carrying something wrapped in a cloth under his armpit. They suspected him and stopped him. He disclosed his name to be Sarwar Khan. They secured the bundle which contained a loaded Stengun and a magazine consisting 10 live bullets. The weapon and the ammunition were secured from him and seized in presence of two Mashirs. On interrogation they found that appellant did not have any valid licence for the weapon. He was therefore arrested and taken to the police station where Muhammad Latif S.H.O. Lodged his First Information Report on behalf of the State. After complying with usual formalities for the purpose of investigation he filed his report in the Court of Judge, Special Court-II (Suppression of Terrorist Activities) at Karachi under section 13-B, Arms Ordinance for the trial of the accused.
3. ' The prosecution examined complainant Muhammad Latif (P.W.3), Muhammad Akram (P.W.2) and Mouladad Khan (P.W.1). Muhammad Latif (P.W.3) is the Station House Officer who had led the patrolling party and arrested the appellant, secured the weapon and ammunition and sent him up for trial of the case. Muhammad Akram (P.W.2) is the Assistant Sub-Inspector of that Police Station who had accompanied the SHO and was a member of the' patrolling party. He acted as a Mashir of search and arrest of the accused alongwith Sabir Hussain, the Sub-Inspector of Police. While Mouladad Khan (P.W.1) is the ballistic expert who had examined the weapon and ammunition and certified that the weapon recovered from the Appellant was a Stengun which was found by him to be in working order and was an automatic machine type weapon. He further certified that it was capable of firing 300 to 400 cartridges per minute.
4. ' The appellant in his examination under section 342, Cr.P.C. Generally denied the allegations of the prosecution and claimed that the weapon was foisted on him by the Police. He examined himself on oath and witness Ghulam Jan in his defence. He took a stand that he was arrested from his house on 14th August, 1990 and was brought to Bahadurabad Police Station, where he was told that as he had refused to work at the house of the SHO he was being booked for the said offence.
5. Similarly Ghulam Jan, the defence witness gave the same story.
6. ' The trial Judge found that the case against the appellant stood proved and recorded his conviction as stated above.
7. ' Mr. Raja Shams-uz-Zaman, Advocate for the appellant, mainly contended that the Investigating Officer did not comply with the mandatory provision of law contained in section 103, Cr.P.C.
8. Inasmuch as he did not take the assistance of any local person to act as a Mashir of the search and recovery of the weapon. He relied on a case reported in 1989 Pakistan Criminal Law Journal 1120. He further contended that there are material contradictions between the statements of the only two prosecution witnesses examined by the prosecution. Both of them are Police Officers and in the circumstances their evidence cannot be relied upon. He relied on cases reported in AIR 1930 Calcutta 141 and Pakistan Law Journal 1973 Lah.
9. 475.
10. ' Mr. Zubair Qureshi, Advocate appearing for the State supported the, judgment and' pointed out that it will be impossible for any Police Officer to obtain services of any person from the locality at the dead hour of the night. Even in the City of Karachi. The complainant Muhammad Latif in his cross-examination has clearly stated that no one was available. Under the circumstances no illegality has been committed by the prosecution in that direction. He further contended that contradiction in evidence of the two prosecution witnesses, if any, is of minor nature.
11. We have gone through the evidence recorded in the case with the assistance of learned counsel for the parties. We find that there is nothing on record that can render the evidence of the two witnesses for the prosecution to be of doubtful nature. The two witnesse aappear to be trustworthy and reliable. The two police officers examined as prosecution witnesses do not have any motive to falsely implicate the appellant. Even a suggestion to this effect has not been put to them. The appellant had examined himself and defence witness Ghulam Jan to the effect that appellant was falsely implicated as he refused to work gratis for the Station House Officer in carrying out repairs to his house. It is unbelievable that a Police Officer will falsely implicate an innocent worker merely because he declined to work free of charge for him. The suggestion made is a far-fetched idea.
12. The evidence in the circumstances examined in defence was rightly discarded by the trial Judge.
13. The provision contained in section 103, Cr.P.C. Would be applicable in case of search of a place is conducted by the police. In the present case search of appellant was conducted on a public thoroughfare. The incident took place at the dead hour of the night when persons can hardly be seen in such areas to act as Mashirs particularly during such period when no one feels safe to be on the road. Under such circumstances there can be no objection if Police Officers act as the Mashirs. The cases relied on by the advocate for the appellant are totally on different grounds and have no applicability to the facts of the present case. For such reasons we had by our short order passed on 25-7-1991 dismissed the appeal.