RAO NAEEM HASHIM KHAN, J.---Sajjad alias Sajju was tried in a case F.I.R. No.468/92, dated 29-10- 1992, P. S. Uggoke, Sialkot under section 13 of the Arms Ordinance XX of 1965, by a Special Court constituted under the Suppression of Terrorist Activities Act, 1975. Vide judgment dated 28-6-1993 the learned trial Judge found the appellant guilty on the aforesaid charge and thus he was convicted and sentenced to suffer R.I. For a term of five years and to pay a fine of Rs.20,000 or in default thereof to further R.I. For six months aggrieved by his conviction, the appellant has preferred this appeal before this Court.
2. The prosecution case, in brief, is that Muhammad Zubair, S.I. Along with Amer Hussain, A.S.I., Zafar Hussain, A.S.I. And other police officials while present at bridge canal situated in Mangu Behram on 29-10-1995 at about 4-45 p.m. In connection with the investigation of case F.I.R. No.487 of 1992 under section 302, P.P.C. And rounded-up the appellant. The appellant was found in possession of sten-gun (P-1) for which he had no licence. The sten-gun was taken into possession by the Investigating Officer Muhammad Zubair, S.I. Vide recovery memo. (Exh.PB). He prepared complaint (Exh.PB) and sent the same to Police Station through Rasheed Ahmad, Constable, for registration of formal F.I.R. (Exh.PB-1). He also prepared rough sketch of the place of recovery (Exh.PC). After completion of investigation, he submitted the challan of the case to Court through S.H.O. Of the Police Station Uggoke, Sialkot.
3. The prosecution in order to prove its case produced P.W.1 Sh. Abdul Rashid, Fire-Arm Expert, P.W.2 Muzaffar Hussain, A.S.I. Who was also Mushir of recovery and P.W.3 Muhammad Zubair, S.I.
Investigating Officer.
4. P.W.1' Abdul Rashid, Fire-Arm Expert, Forensic Science Laboratory, Lahore, deposed that the recovered weapon was an automatic sten - gun of .30 bore without magazine.
5. P.W.2 Muzaffar Hussain, A.S.I., deposed that on 29-10-1992 he alongwith Muhammad Zubair, S.I.
Amir Hussain, A.S.I. And other police officials were on patrol duty in an official van for the arrest of P.Os. And notorious outlaws, and when they reached at Chowk Bagwal Awanan, a secret information was received by Muhammad Zubair, S.I. That the accused and other P.Os. Were present in an house situated near the bank canal Mangu Behram. On receipt of the said spy information the police party reached at Canal Bank known as "Mangu Behram" and seized the said house. On seeing the police party four persons emerged from the said abandoned and deserted house and started running. Police party chased them and succeeded in encircling them. He further deposed that the appellant removed the magazine from the sten gun and threw it in the canal with the flowing water. P.W.2 is also a recovery witness.
6. When examined under section 342, Cr.P.C. The appellant denied the charge and stated as follows:--- "I was kept in illegal detention by the police at the police station since 12-10-1992. The police in order to show his efficiency and performance planted the sten gun on me. In the meanwhile during my stay at Police Station, Asghar Ali, Ch. Ibrar and Ch. Ishfaq visited the police station and requested for my release. The police promised to set me at liberty but planted this sten gun on me because I am poor man and could not afford to fulfil the demand of the police."
7. The appellant did not, however, make statement under Oath as envisaged by section 340(2), Cr.P.C. But produced Muhammad Islam who is Record Clerk at Head Marala, Irrigation Department and D.W.2 Ibrahim.
8. Muhammad Islam DWA stated that flow of water in the said canal remained closed from 6-10- 1992 till December 1992, and that after the closure of water, the canal became dry after two days because of sandy level.
9. D.W. 2 Ibrar Hussain stated that on 12-10-1992, Asghar, uncle of the appellant contacted him and told about the missing of the appellant. He added that he visited different police stations along with Asghar (uncle of the appellant) but failed to find out the appellant. He further added that one of the official of the P.S. Cantt., Sialkot informed him that the appellant was confined at P.S. Uggoke but the S.H.O. Was not inclined to disclose the same to any body. Both of them then visited the police station but could not find the appellant inside the police station. When they came out of the police station he started talking to Muhammad Zubair, S.I. The appellant overheard the voice of Asghar Ali, when he (uncle of the appellant) was present at the first floor of a building near the police station. The appellant started raising alarm, therefore, they asked the S.I. That the appellant is not that Sajjad (proclaimed offender of Ghakkar) rather he was from Gujrat. The S.I. Then assured them that he would release the appellant but later on, they learnt the involvement of the appellant in the instant case.
10. With the assistance of the learned counsel for the appellant, we have gone through the entire evidence and have heard the arguments.
11. It was vehemently argued by the learned counsel for the appellant that it was a false case and recovery has been planted on the appellant. Added that recovery in this case was illegal inasmuch as it was violative of section 103, Cr.P.C. And no witness from the public was associated and, therefore, the recovery could not be relied upon. The rule of law laid down under section 103, Cr.P.C.
Is salutary in principle but as per view of the superior Courts, it is not possible to associate/join any person from the public, then the recovery could not be discarded. However, this question rests upon the facts of each case. In the peculiar circumstances of this case, when the appellant was a member of unlawful assembly of P.Os. And was being chased by L the police and had been encircled and empowered, it was extremely difficult to make any public witness to join the investigation nor the police had at any time or occasion to comply with the provision of section 103, Cr.P.C. Even otherwise in these days the people afraid to associate themselves with recovery proceedings in such-like cases and against such-like accused who are proclaimed offenders.
Moreover, the police officials are as good witnesses as public witnesses unless it is proved that they have animus against the accused E and a motive to falsely involve the accused in the case, there is absolutely no reason to believe the testimony of aforesaid witnesses, because every person including the police officials are competent witnesses unless it is shown that they are interested or inimical. No such enmity or motive for false involvement of the appellant in the case was shown by the defence on the part of I the police.
12. The second contention was that version offered by the prosecution about magazine is not proved on the record. Added that record of Head Marala Irrigation Department produced by the D.W.1, gave a lie to the stand of the prosecution. According to the prosecution version, the appellant while running to make his escape good threw the magazine in the canal where the water was flowing. However, according to the D.W. 1 the canal in the days of occurrence was not flowing. D.W. 1 also produced record of Irrigation Department in support of his statement. The version of defence is not believable simply on the ground that the said record is an open secret as also that none of the responsible officer had signed the entries made in the register regarding the closure of water.
Moreover, simply filling-up the entries without physical visiting the spots does not have any substance over the statement of P.Ws. Wherein they in very clear manner deposed that water was flowing in the canal at the time of occurrence. The version of prosecution to this effect seems to be more plausible and believable because this portion of their statements hardly any improvement in their testimony nor the same has been deposed with any ulterior motive. The prosecution version become more truthful due to the facts that the police acted in an honest and straightforward manner, because, what police recovered, had I shown the same in the record without any addition or omission. It is not a thing impossible or difficult for the police to arrange a magazine in order to plant the same on the appellant. As such we in no manner doubt the testimony of the police officials who gave circumstances of the case in elaborate manner, therefore, their credibility could not be shaken.
13. The third contention was that the recovered weapon was an empty one which was incapable of being used as a fire-arm at the relevant time particularly when no magazine or bullets were recovered. This contention of the learned counsel for the appellant has absolutely no merit, because the appellant has been challaned for the posseesion of illicit weapon without magazine, faced the trial for the very same offence and convicted only for the possession of sten gun without magazine. As such there arises no question whatsoever that sten gun without magazine or bullets should be presumed as of a toy sten gun.
14. Lastly it was contended that prosecution had absolutely failed in establishing the case against the appellant because there was nothing in the evidence adduced by the prosecution that appellant was a proclaimed offender nor the police gave case numbers in which the appellant was declared as proclaimed offender. Learned counsel for the appellant also pointed out that Muhammad Zubair, S.I. Was the complainant of the case in hand and also an Investigation Officer besides being a witness. As such fair investigation could not be expected from him. No doubt the plea of the learned counsel for the appellant that the appellant was not declared a proclaimed offender in any case had evidentiary value as the prosecution had totally failed to mention neither in the investigation nor during the trial that in which case the appellant was declared as proclaimed offender. Prosecution has also failed to cite any case registered against the appellant prior to the instant one. The second plea of the learned counsel for the appellant that Muhammad Zubair, S.I. Who is complainant of the instant case, investigated the case himself, has also due weight in the eyes of law. Muhammad Zubair, S.I. P.W.3 and complainant recovered the sten gun, arrested the appellant and completed the investigation himself. It would be more fair, appropriate and plausible if after the receipt of complaint and registration of formal F.I.R., the investigation should have been entrusted to another police officer. In the instant case by combining triple positions in one person, question of unfair investigation on biased footing can be raised. We, therefore, direct the, senior hierarchy of police to entrust the investigation in such-like cases to an officer senior to the complainant in order to provide authenticity to the prosecution case.
15. After considering the case from all the angles, we are of the view that prosecution has proved its case beyond shadow of doubt. Adverting to the question of sentence, keeping in view of the last submission of the learned counsel for the appellant and our observations, we are of the view that the sentence of 5 years is severe. The appellant was arrested on. 29-10-1992 and since then he remained in jail as under trial prisoner and convict. In this way he remained in jail for three years one month and four days. As such while maintaining the conviction we reduce the sentence to the period already undergone by the appellant, which we think meets the ends of justice. With this modification in sentence, there is no substance in the appeal, which is dismissed.
16. The above are the detailed reasons in continuation of our short order passed on 7-12-1995.