' FAZAL-UR-REHMAN, J.---This is an appeal preferred against the judgment, dated 18-5-1998, passed by the learned Additional Sessions Judge/Special Judge for Suppression of Terrorist Activities, Dera Allah Yar by which he convicted the appellant for the offence under section 13-E of the Arms Ordinance, 1965 and sentenced to suffer R.I. For four years and to pay a fine of Rs,50,000 or in default of payment of fine to further undergo S.I. For 10 months. The appellant was also extended the benefit of section 382(b), Cr.P.C.
2. Briefly stated the facts of the case are that on 11-9-1998, the appellant has been, stated to have made firing upon F.C. Personnel. It is stated that as a result of exchange of firing by F.C. Officials he had sustained injuries on his right arms. It is stated that other 8/9 persons of the same village, however, made their escape good. It is stated that Captain Muhammad Rafiq who was leading the party apprehended the appellant who is stated to have been found in possession of one kalashnikov bearing No,TK 5623-K and three magazines containing 80 rounds. It is also stated that thereafter, a raid was laid down upon the house of appellant wherefrom, one kalashnikov No,ET4142/4442, one semi-automatic rifle No,TA1808, one shot-gun 12 bore No,1756, one barrel of riffle, one but of riffle, one tool box, two leather bagas, 115 live rounds of kalashnikove, three live rounds of 12 bore shot gun were recovered. It is stated that Captain Muhammad Rafiq then produced the seized arms and ammunition alongwith the appellant to S.H.O. Police Station RD.298.
It is stated that on the report of Captain Muhammad Rafiq of Sibi Scouts 67 Wing, Dera Murad Jamali (Exh.P./3-A), F.I.R. Bearing Crime No,9 of 1998 (Exh.P/38) under sections 324, Qisas and Diyat, Ordinance, 147, 148, 149, 353, P.P.C. And 13-E of the Arms Ordinance was lodged. The seized arms and ammunition were taken into possession by the police vide recovery memo. Exh.P/2-B. It is stated that the appellant who had sustained injury was remained hospitalized from 11-9-1998 to 14-9- 1998. It is the case of the prosecution that since the appellant has failed to produce any licence for the seized arms and ammunition, therefore, contravened the provisions of Arms Ordinance. On 14- 9-1998 a case under section 13-B of the Arms Ordinance was also registered bearing Crime No,10 of 1998 Police Station RD 298 against the appellant. A recovery memo in respect of seized arms and ammunition was also prepared in this case vide Exh.P. 1-A. After usual investigation the appellant was sent up to race his trial before the trial Court. The case was proceeded before learned Special Judge for Suppression of Terrorist Activities and the appellant pleaded not guilty to the charge which was framed against him under section 13-E of the Arms Ordinance, 1965, on 3-12-1998.
During the trial the learned trial Court examined P.W.1 Muhammad Ajmal and P.W.2 Abdul Ghafoor, S.I./S.H.O. Police Station RD 298 in the instant case. In his statement recorded under section 342, Cr.P.C. The appellant has disputed the case of the prosecution. The recovery of the arms and ammunition has been denied except licenced shot-gun. He has pleaded his innocence. He has also made his statement on oath in disproof of the charge made against him as per provisions contained under section 340(2), Cr.P.C. According to him he was fired at by F.C. Personnel and caused injury to him as a result of which he became unconscious at the spot. According to him since he was caused injury by the F.C. Personnel, therefore, in order to save themselves from the legal liabilities with the connivance of police registered a false case against him the plea of the appellant was however, that he was innocence. He has also produced P.W. Dur Muhammad in his defence whose statement is to the extent that appellant had sustained injury as a result of firing made by F.C. Personnel on their Goth and the appellant did not make any firing. According to the said witness no recovery of arms was effected from the house except one licenced shot-gun which was taken from the house of appellant/accused. The learned Special Judge passed the conviction order on evidence recorded by him in the manner hereinabove mentioned. The present appeal has been filed against the said order
3. We have heard Mr. Amanullah Kanrani, Advocate learned counsel for the appellant and Mr. Noor Muhammad Achakzai, learned Additional Advocate General for the State.
4. The contentions put forth on behalf of the appellant are that there is delay of three days in lodging of the F.I.R. As the alleged seizer was made on 11-9-1998 while F.I.R. Bearing Crime No,10 of 1998 was registered on 14-9-1998. The recovery is doubtful as the statutory requirements of section 103, Cr.P.C. Have not been complied with by the F.C. Personnel and police. The search has been without any authority and the learned trial Court has not properly appreciated the evidence.
5. On the other hands learned Additional Advocate-General representing the State has supported the impugned judgment. He has contended that the F.C. Personnel had not gone to the village for the purpose of conducting the search but they had gone to advise the elders that they should not make firing upon them.
6. The contention of learned counsel regarding delay in lodging of the F.I.R. In the instant case has no force. As stated earlier the seized arms and ammunition were produced to the S.H.O. On 11-9- 1998 which were taken into possession vide recovery memo. Exh.P./2-B available in the record of main case being F.I.R. 9 of 1998 wherein, section 13 of the Arms Ordinance was also indicated. It is stated that the appellant who had sustained injury at the spot remained hospitalized from 11-9- 1998 to 14-9-1998. Since on 14-9-1998 he did not produce any licence or permit regarding seized arms and ammunition therefore, a separate case under the provision of Arms Ordinance being Crime No,10 of 1998 was also registered against the appellant, therefore, the same is not fatal which can make the recovery doubtful nor it amounted to double jeopardy as contended by the learned counsel for the appellant. In the circumstances the provisions of section 403, Cr.P.C. Were also not attracted.
7. It is an admitted position that the appellant has sustained injury at the spot. According to the witnesses examined in the main case S.H.O., Tehsildar and Assistant Commissioner were not available on 11-9-1.998. It is stated that one kalashinkov and three magazines containing 80 cartridges were recovered from the personal possession of appellant. The mandatory requirements as to search and recovery do not apply to personal search of an accused and secondly the same cannot invalidate the search. It has been held in PLD 1996 Supreme Court 67 that section 103 is relatable to the place and not to the person. Even a private person can arrest any person who commits a non-bailable and cognizable offence as per provisions contained under C section 59 of the Cr.P.C. Even if for the sake of arguments the recovery which has been effected from the house of the appellant is excluded even then the recovery of the arms and ammunition effected from his personal possession brings the case within the ambit of section 13-E of the Arms Ordinance. In the circumstances, the arrests etc. Of the appellant do not affect the validity of the trial or conviction.
8. The Officials belonging to the enforcing agencies are as good witnesses as any witness from the public. In the instant case P.W.1 Muhammad Ajmal and P.W.2 Abdul Ghafoor, S.I./S.H.O. Belong to Police Department while Kamal Khan, Naib-Sobedar, Captain Muhammad Rafiq, Sobedar Nazir Ahmed examined in the main case belong to Sibi Scouts. The officials who have no against accused would be competent witnesses and their evidence cannot be discarded only for the reason that they are belonging to Sibi Scouts and Police Department. They have supported the prosecution case and there is nothing on record to show that they are deposing against the accused maliciously or out of animus.
9. It cannot be believed that the officials of the above two agencies would plant arms and ammunition on the accused from their own source therefore, the contention of learned counsel has no force that the case is doubtful. Even otherwise, technicalities are to be overlooked if the Court is satisfied that the offence has been committed as alleged by the prosecution. The prosecution has established its case and the appellant has failed to discharge the burden as per provisions contained in section 8 of the Suppression of Terrorist Activities Act. The judgment in this regard is not perverse nor illegal which can warrant interference by this Court, there is therefore, no merit in the present appeal which is accordingly dismissed.