' JAVED IQBAL, J.--- The facts, which formed the background of this case are that the convict/appellant was arrested on 15-10-1992 in connection with F.I.R. No,122/92 registered by Industrial Area Police Station, Quetta, under section 13-E of Arms Ordinance, 1965 on the alleged recovery of a klashnikov from his possession while making fire in a marriage ceremony. The challan was submitted after the completion of investigation and trial conducted by the learned Special Judge (Suppression of Terrorist Activities) Balochistan, Quetta, who vide judgment, dated 18th August, 1993 awarded 4 years' R.I. Under section 13-E of Arms Ordinance, 1965 with the benefit as envisaged under section 382-B, Cr.P.C, hence this appeal.
2. It is mainly contended that judgment in question is contrary to facts, law and justice as such liable to be set aside. It is further contended that the prosecution has utterly failed to prove the recovery of alleged arms from the possession of the convict/appellant and, therefore, the question of any conviction does not arise. It is pointed out that private witnesses were not associated at the time of raid and therefore, the learned trial Court was not justified in awarding conviction on the basis of deposition of those prosecution witnesses, who are police officials. It is argued with vehemence that exact incriminating material could not be pointed out by the trial Court and the number of alleged recovered klashnikov was mentioned wrongly as 370801 . Which caused a serious prejudice to the accused and resulted in grave miscarriage of justice, because the statement of convict/appellant was recorded in contravention of the provisions as contemplated under section 342, Cr.P.C. The learned defence counsel has also drawn our attention to the fact that the person involved in identical case registered under section 324, P.P.C. (Qisas and Diyat Ordinance) has already been acquitted of the charge.
3. Mr. Mir Aurangzaib, Advocate, appeared for State and supported the impugned judgment being free from any legal infirmity or serious irregularity. It was contended strenuously that the prosecution has proved its case beyond the shadow of doubt and as such the impugned judgment does not call for any inference.
4. We have carefully examined the entire record and perused the depositions of prosecution witnesses. Muhammad Abid Nawab (P.W.1) stated that on 15th October, 1992 at 8 p.m., the convict/appellant was apprehended while making fire with klashnikov at Kabir Street, and failed to produce any licence for it, therefore, the klashnikov No,530808 alongwith 20 cartridges in magazine were taken into possession vide recovery memo. (Exh.P.1/A) duly signed by him. He deposed further that a Murasala (Exh.P.2/A) sent for registration of case. Muhammad Jameel (P.W.2) has fully corroborated the deposition of Muhammad Abid Nawab (P.W.1) on all the material points by deposing that on 15th October, 1992 while patrolling, they heard gunshot fire in Kabir Street and on reaching there, found convict/appellant in possession of a klashnikov, while other person namely Bashir Ahmed was having .303 rifle and both were making fire in a marriage ceremony. He deposed further that the convict/appellant could not produce a licence, consequently arrested, and the klashnikov was taken into possession vide recovery memo. (Exh.P.1/A) and Murasala (Exh.P.2/A) sent for registration of case. The case pertaining to the alleged recovery of .303 rifle was sent to the Court of competent jurisdiction for favour of trial. It would be relevant place to observe that prosecution witnesses are absolutely independent witnesses having no animus against the accused to falsely implicate him. They have fully corroborated one and other on all the material particulars despite subjected to lengthy cross-examination and having been put to searching questions, their testimony remained unshattet ed. The learned defence counsel could not point out any material contradiction and it is worthy to note that due to lapse of time minor discrepancies and contradictions do creep in and unless such contradictions materially effect, credibility of prosecution witnesses or make their version highly inconsistent, such contradiction can safely be ignored. In this regard we are fortified by the dictum laid down in the following authorities:-- ' PLD 1977 SC 557 and PLJ 1977 SC 417.
5. It is an admitted position that conviction was awarded on the evidence of two witnesses, who are police officials and no private witness could be associated, when the recovery was effected.
Before we could proceed any further it seems essential to examine the question whether the association of a private witness is one of the mandatory pre-requisites of the provision as contained in section 103, Cr.P.C. And can a conviction be maintained/awarded on tine deposition of prosecution witness, who were police officials. As already noted above, the learned defence counsel has vehemently argued that the provisions as contained in section 103, Cr.P.C. Being mandatory in nature have been violated as two respectable persons of the locality were not called and made witnesses. There is no doubt that the provisions of section 103, Cr.P.C. Are mandatory and are designed to guard against the possible concoction but it must be noted that rule is mandatory and not absolute and search can 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 person of the locality are not available. On this point reliance can be placed on the following authorities:-- ' PLD 1987 SC 467,1987 SCM R 1177 and PLD 1967 FSC 116.
6. It would not be out of place to mention here that the section merely requires an honest effort on the part of the Officer Incharge to secure the presence of responsible witnesses of the locality, but the search is not vitiated if no such witness is available. The objectionable conduct which may vitiate the proceedings would be where no attempt is made to have respectable witnesses of the locality for search. In the case in hand an attempt was made to associate private witnesses, which could not be succeeded. We cannot help saying that while insisting on the strict compliance of the provisions as contained in section 103, Cr.P.C., we must not ignore the bitter reality that there is absolutely no protection of law and no one is willing to take the risk of becoming a witness to endanger himself, his honour and then to face a protracted trial. We must accept the prevalent changed situation and then to see how for a strict adherence to the provisions as laid down in section 103, Cr.P.C. Can be made. This changed situation has not gone unnoticed by higher judicial forums and the latest available verdict is reproduced hereunder for ready reference:-- "In any case reluctance on the part of the members of public to offer themselves as witnesses in such like matter is by now a judicially recognized fact and no adverse inference can be drawn against the prosecution only because private persons had not been sighted as witness."
' Muhammad Sharif v. The State PLD 1992 Lah.
57.
' Apart from what has been stated above we may mention that section 103, Cr.P.C., applied to search of places and not to personal search, however, the principles embodied therein can be extended to personal search when situation so justify and not in every case.
7. By now it has been well-settled that the statement of police officials can be considered until the same remain unshaken even otherwise there is no rule that the evidence of police officials cannot be considered. The evidence of a witness, who stood the test of cross-examination should be relied. The following authorities can be referred in this regard:-- ' PLD 1980 SC 446, PLD 1981 SC 635, PLD 1968 Kar. 903 and 1976 PCr.LJ 311.
8. In this case no doubt that the prosecution witnesses are police officials, but it is worth mentioning that no enmity whatsoever has been alleged in between the prosecution witnesses and that of convict/appellant, hence the question of false implication does not arise and, therefore, this aspect of the matter hardly needs any consideration.
9. It was also argued that the statement of convict/appellant was not recorded in accordance with the provisions as contemplated in section 342, Cr.P.C. And klashnikov No,370801 was never recovered from the convict/appellant and no such incriminating material had come on record in this respect and, resultantly, by mentioning a wrong number of the klashnikov a serious prejudice caused to the convict/appellant and, therefore, the impugned judgment is not tenable. It is well- settled by now that unless an accused is given an opportunity to explain the circumstances appearing against him, the same cannot be used against him. The object being two-fold i,e, to afford the accud a fair and proper opportunity of explaining the circumstances which appearing against him, he must be questioned separately about each material circumstances intended to be used against him and second is to enable the Court to ascertain from the accused what explanation, he has to give regarding the material circumstances disclosed in the prosecution evidence and how the proposes to meet the same? We have thrashed out the entire record very carefully to see whether any illegality has been committed or any serious prejudice caused to the convict/appellant by mentioning the wrong number of alleged klashnikov as 370801 instead of 530808. It transpires from the scrutiny of record that exact No,530808 was mentioned in charge framed in 10-3-1993, in Murasala (Exh.P.2/A), in statement of Muhammad Abid Nawab (P.W.1) in point for determination formulated by the learned Special Judge, (page 5 of the impugned judgment) and finally while awarding conviction (page 10 of the impugned judgment). It can, therefore, be inferred safely that the omission to mention exact number was nothing more but just an accidental omission or at the best typing slip, which can be ignored safely as no prejudice has been caused to the convict/appellant as contended. In our view such an irregularities of simple nature are curable under section 537, Cr.P.C.
10. We have also gone through the deposition made by the accused and two D.Ws. The accused has himself admitted during his statement under section 342, Cr.P.C. That he had no enmity with prosecution witnesses. He had also admitted marriage ceremony in his statement under section 340(2), Cr.P.C. He had also repeated that no enmity existed in between him and that of prosecution witnesses, but mentioned about their greed without any further explanation that as to whether any illegal gratification was demanded or how the greediness shown? In our view such a vague allegation cannot be taken into consideration. We have also gone through the deposition made by defence witnesses. Mehar Ullah (D.W.1) had admitted his "relationship and thick friendship" with that of convict/appellant but could not deny the ceremony of marriage which was being performed at the time when alleged incident occurred. He had, however, expressed his ignorance regarding the concerned parties to that of marriage which even otherwise is not very much material. It can, therefore, safely be concluded that there was a marriage occasion and moreso, this aspect of the matter had been further corroborated by Habibullah (D.W.2) by saying that "on 15th October, 1992, the marriage ceremony of his sister was being performed". He had also admitted neighbourhood in between him and that of convict/appellant. In short the defence witnesses had admitted the occasion of marriage, neighbourhood with convict/appellant, arrival of police and subsequently investigation in the alleged occurrence. No enmity as mentioned already was alleged and as such the question of false implication without any motivation does not arise. We, therefore, hold that the defence theory is false and fabricated as an afterthought and does not throw any doubt on the credibility of eye-witnesses and circumstantial evidence. The prosecution has proved its case beyond any doubt by adducing unrebutted incriminating evidence to connect the convict/appellant with the commission of crime as alleged. It was, however, brought to our notice by the learned defence counsel that the convict/appellant is 50 years old, having small kids of 6 to 16 years of age and due to death of his wife no one is left to look after them, and resultantly the future of small children will be ruined. We, have examined this aspect of the matter but keeping; in view the alarming increase in blind firing which has created a panic and sensation in Quetta City, due to merciless killing through blind bullets, of innocent persons including small children and women, no lenient view can be taken. The appeal is accordingly dismissed.