1992 PLP 1919 (MLD)

RIAZ AHMAD, J.

The appellant in this case was tried by a Court constituted under the Suppression of Terrorists Activities Act, Gujranwala, on a charge under section 13 of the Arms Ordinance XX of 1965. Vide judgment dated 24-9-1991 the appellant was found guilty on the aforesaid charge and was convicted and sentenced to undergo R.I. for three years and to pay fine of Rs.10,000 or in default thereof- to suffer further R.I. for a term of six months: However, he was allowed the benefit under section 382-B, Cr.P.C. The appellant has preferred this appeal against his conviction and sentence which shall be disposed of through this Judgment.

2. The prosecution case in brief is that Sabir flussain S;I. Police Station Uggoke, District Sialkot, received a secret information that die-appellant an another co-accused Shahid alias Shamshad were engaged in the trade apt illicit arms and amunition. Accordingly, the said Police Officer registered a case against the appellant and the aforesaid co-accused Shahid alias Shamshad vide F.I.R. No.128 dated 25-4-1991. After the registration of the case, the appellant was arrested and during his interrogation he disclosed that he could lead the police to the recovery of a sten-gun. Accordingly, on 9-5-11WI the appellant led the police party and got recovered a sten-gun from his house situated within the jurisdiction of another Police Station Civil Lines, Sialkot. The step-gun was lying in a box. Since the appellant could not produce any licence, therefore, the Sub-Inspector Sabir Hussain drew a complaint and sent the same to the Police Station Civil Lines for registration of a case where a case vide F.I.R. No.1(y) was registered against the appellant. It may be stated here that the recovery of sten-gun P.1 vide memo. Exh. PB was attested by Muhammad 11yas Head Constable and Sabir Hussain S.I.

3. At the trial, the prosecution placed reliance upon the testimony of Muhammad Ilyas Head Constable P.W.2 and Sabir Hussain S.I. P.W.3. With the assistance of learned counsel for the appellant and the State we have carefully gone through the evidence and we have also heard the various contentions raised on both the sides. Learned counsel for the appellant argued with vehemence that since the recovery was to be effected from within the jurisdiction of another Police Station that is Police Station Civil Lines, therefore, it was incumbent upon the Police Officer to have joined the S.H.O. Police Station Civil Lines with him to effect the aforesaid recovery: In this behalf, the learned counsel drew attention of this Court to the provisions of section 166, Cr.P.C. Subsection (3) of section 106, Cr.P.C. reads as under:- "Whenever there is reason to believe that the delay occasioned by requiring an officer in charge of another police station to be made under subsection (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer in charge of a police station or a Police Officer in making an investigation under this Chapter to search or cause to be searched, any place in the limits of another police station, in accordance with the provisions of section 165, as if such place were within the limits of his own station." Sabir Hussain S.I. P.W.3 during his statement categorically stated that he did not join the Police of Police Station Civil Lines because he apprehended that the evidence might be destroyed. In view of this explanation, we are not convinced with the contention raised by the learned counsel. for the appellant. Learned counsel for the appellant attempted to argue that the recovery was fake and cannot be relied upon inasmuch as there is violation of section 103, Cr.P.C. In this behalf the learned counsel placed reliance upon Muhammad Saleem v. State 1992 PCr.LJ 34 and Maqbool Ahmad Shah v. State 1992 PCr.LJ

48. In these cases, it was emphasised that the provisions of section 103, Cr.P.C. are to be applied with in all criminal investigations. Section 103, A Cr.P.C. perused carefully shows that it is applicable to the recoveries only made under Chapter VII, Cr.P.C., whereas a recovery to be effected on the instance of the accused which is within the exclusive knowledge of the accused stands on a different footing. We are fortified by the judgments of the Hon'ble Supreme Court reported as Ballia and others v. The State 1985 SCMR 854 and Amira and others v. The State 1987 PCr.LJ

473. In these cases, the Supreme Court has clearly laid down the distinction between the searches and the recoveries to be effected on the instance of the accused persons. In this view of the matter, we have no option but to follow the judgment of the Supreme Court which is binding upon us. We may also observe here that Sabir Hussain S.I. (P.W.3) admitted in his statement that 4/5 persons had entered the house of the appellant at the time of the recovery but in answer to a question he explained that the aforesaid persons refused to become the recovery witnesses. We arc conscious of the lack of civic responsibility in the society and, therefore, we do not attach any importance to the failure of the police to make any public witness to join the recovery proceedings. In absence of the ulterior motive, the Police Officer is a competent witness and his statement cannot be brushed aside only because he is a police officer. However, it depends upon the circumstances of each case as to what credibility is to be attached to the statement of a Police Officer, therefore, no hand and fast rules can be laid down.

4. For the foregoing reasons, we do not find any substance in this appeal which is hereby dismissed. N.H.Q./A-146/L Appeal dismissed.