SYED DEEDAR HUSSAIN SHAH, J.---Leave to appeal is sought against the judgment of the High Court of Sindh, at Karachi, dated 18-5-2002, passed in Criminal Appeal No,217 of 2001.
2. Briefly stated the facts of the case are that on 30-5-2000 Muhammad Ejaz Awan, Sub-Inspector, with police party, was on patrolling duty, when at about 4-00 a.m. At Service Road, Shahrah-e- Ghalib opposite an open plot, Block 2, Clifton, Karachi, he found one person going in vague condition holding one bag. He enquired from the said person about his name, who disclosed his name as Muhammad Arif alias Mama. Sub-Inspector searched the bag and recovered two Kalashnikovs, 250 rounds, two TT pistols and three magazines containing 15 bullets for which accused failed to produce licences, upon which police arrested him and registered case against him. After investigation petitioner was sent up to face trial. He pleaded not guilty to the charge and claimed to be tried.
3. The prosecution in support of its case examined Muhammad Yousuf H.C. (P.W.1), complainant Muhammad Ejaz Awan, S.-I. (P.W.2), who is also the Investigating Officer of the case. Petitioner in his statement under section 342, Cr.P.C. Denied the allegations made against him by the prosecution.
He did not examine any witness in his defence and stated to examine himself on oath as contemplated under section 340(2), Cr.P.C. However, later on, he filed an application to the effect that he does not want to examine himself on oath for the reason that he was unaware of the meaning of oath.
4. The trial Court after hearing the learned counsel for the parties, vide judgment dated 10-11-2001, convicted the petitioner and sentenced him to seven years' R.I. And fine of Rs,20,000. In default of the payment of fine, he was ordered to suffer R.I. For three months.
5. Feeling aggrieved, petitioner challenged his conviction and sentence before the High Court, through appeal, which was dismissed vide impugned judgment dated 18-5-2002, hence this petition.
6. Learned counsel for the petitioner, inter alia, contended that prosecution in all produced two police officials as witnesses in this case; that the main issue involved in this case is whether the weapons allegedly recovered from petitioner were foisted upon him being a worker of the MQM, or whether the same were actually recovered from him; that F.S.L.'s report is not in corroboration with the version of the prosecution; that the Courts below erred while holding that police personnel is as good witness as any other person could be; that provisions of section 103, Cr.P.C. Were not complied with, as no independent person was associated by the police during investigation viz. Apprehension of the petitioner, recovery of the arms and ammunition; that the Courts below did not consider the case in its proper perspective. In support of his case learned counsel has relied on Zakir Khan v. State (1995 SCM R 1793 at p.1795 and Abdul Rageem v. State 1997 PCr.L.1 690.
7. We have considered the arguments of learned counsel for petitioner, carefully scanned the material available on record and have also scrutinized the evidence adduced by the prosecution.
The main contention of the learned counsel is that evidence of police officials should not have been accepted by the Courts below as gospel truth, because private persons were not associated in the investigation particularly during the recovery of weapons. Admittedly, the police party, while on patrolling duty, at about 4-00 a.m. (early in the morning) apprehended petitioner and recovered the arms and ammunition from his possession. During trial, prosecution witness Muhammad Ejaz Awan in cross-examination stated on oath that as the incident took place in the early hours of morning, therefore, he could not call any private person of the area as Mashir; the defence was not able to put suggestion to the prosecution witnesses that they had any malice,or grudge, or enmity to falsely implicate the petitioner in the case. Besides it, even no suggestion was put to the prosecution witnesses that petitioner was an active member of a political party and for that reason he has been involved in the case. The evidence furnished by the prosecution is natural, trustworthy and confidence-inspiring, and the Courts below have very carefully analysed and examined the evidence. The contention of the learned counsel that provisions of section 103, Cr.P.C.
Were not complied with, is also not tenable, because police on patrolling duty apprehended the petitioner at earlier hours of morning and no person was available to witness the recovery of arms and ammunition from the possession of petitioner. No material has been placed on record from which it could be inferred that P. Ws. Were biased against petitioner. The recovered weapons were sent to the Ballistic Expert, whose report was tendered as Exh.6/B and objection on behalf of the defence was not raised during the trial. Even no application was made by the defence so that Examiner of the Firearms may be cross-examined on this point. F.S.L.'s report is also in positive which fully supports the prosecution case.##TE#
8. Now we would like to discuss the case-law cited.By learned counsel for the petitioner. In Zakir Khan's case (supra) this Court held as under:-- "Section 103, Cr.P.C. No doubt, lays down a procedure to be strictly followed by a police officer who is going to make a search, however, when a deviation is made from this procedure, and the Court is satisfied that strict compliance with the provisions of the said section was not possible, it would then only enquire whether the person in whose presence search was made is a reliable and truthful witness. Further corroboration of his evidence by other independent evidence would only be required if it has been established that he had made obliging statement before the Court or there was reason to believe that he bore animus against the accused or there were other similar circumstances. In the present case no such motive had been attributed to any of the witnesses by the defence. The statement made by the Investigating Officer that it being Fajar time, no other witness from the locality was available to witness the search was also not challenged by the defence. Therefore, insistence upon strict compliance with the terms of section 103, Cr.P.C. Under which circumstances could hardly be justified. The defence having otherwise failed to shake the credibility of the prosecution witnesses, in no case it could be inferred that recovery of incriminating evidence against the accused was doubtful on account of the Mashirs not being from the same locality. " In Abdul Raqeem's case (supra) learned Division Bench of the High Court observed as under:-- "... ... ...Recovery memo. Was prepared at the police station and not at the spot---Recovery witness was of questionable character whose truthfulness was doubted and who did not prove the contents of the Mashirnama." Both the citations relied upon by learned counsel are quite different and distinguishable from the facts of the present case, and in our humble opinion are not helpful to the case of petitioner. This Court has time and again held that evidence of police personnel is as good as of any other person until and unless some enmity, malice, grudge,or mala fide is brought on record for false implication of the accused.
9. In our firm view, the impugned judgment is based on the proper appreciation of evidence, the law laid down by this Court, and is not open to exception.##TE#
10. For the facts, circumstances and reasons stated hereinabove, this petition is without merit and substance, which is hereby dismissed and leave to appeal declined.