1992 PLP 1944 (MLD)

(iii) There is no inconsistency in inventory memo Ex.P/A and F.I.R. (iv) No prejudice has been caused to accused due to earlier decision of instant case. (v) Evidence of prosecution does not suffer from contradictions. (vi) During investigation accused pointed out that unlicensed Klashnikov with which he fired upon Muhammad Usman, complainant in F.I.R. No.41/1991 and he voluntarily led the police for recovery. (vii) Prosecution has strictly adhered to provisions of section 103, Cr.P.C, (viii) Accused had failed to prove joint possession of the house from where Klashnikov was recovered. (ix) In 342, Cr.P.C. statement time has been wrongly mentioned but it would not be fatal for the case of prosecution. (x) Prosecution has legitimately proved the case against accused.

7. We have heard learned counsel for parties and with their assistance record of case has also been perused. '

8. Under Criminal Procedure Code, no restriction has been imposed told try the accused; simultaneously under different offences.

9. In the present case accused is facing trial under section 324 of Criminal Law (Amendment) Ordinance, 1991 vide F.1.R. No.41/1991 which is to be decided on the basis of independent evidence produced by prosecution and accused would not be prejudiced in any manner, if the latter case under section 13‑E, Arms Ordinance has been decided.

10. The learned counsel for accused had not placed before us any law whereby Courts have been barred to proceed against accused at a time in respect of different cases and accusations.

11. Undoubtedly accused was involved in a case under section 324 of Criminal Law (Amendment) Ordinance, 1991. and during investigation he volunteered to lead police for purpose of effecting recovery of Klashnikov which he had kept beneath the bedding in of his house, as such,, on his pointation police went with him till that time no separate case was registered against accused under section 13‑E of Arms Ordinance, as such, when recovery of Klashnikov was effected, on the spot inventory was prepared in which number of earlier case was mentioned because this piece of evidence subject to all just exceptions and admissibility would also be produced before the Court in the Crime of 324, Criminal ‑ Law (Amendment) Ordinance, 1991, thus due to writing crime number of that case, on inventory it cannot be held that nothing was recovered from possession of accused in the instant case.

12. We have gone through Ex.P/1‑B. i.e. Marasla, written by Assistant Sub‑Inspector Police to Incharge Police Station for registration of case, after recovery of Klashnikov bearing No.19‑434445 on 28‑4‑1991 as well as statement of witness P.W.1 Ghulam Fareed in which he has stated the number of Klashnikov as "66.190434445", except in writing incorrect number of Klashnikov there is no other inconsistency but it is also reconciliated because in Marasala, figure 60 or 66 has also been shown in a triangular but the fact remains that there is no difference in the actual number, as such the objection of learned counsel is not valid for interfering in the conviction.

13. The statements of witnesses produced by prosecution have also been perused. P.W.f deposed that accused during investigation of Case F.I.R. No.41 of 1991 under section 324 of Criminal Law (Amendment) Ordinance, 1991, confessed that Ylashnikov with which, he made firing is concealed in his house and can be recovered. On this witness alongwith Madad Shah S.I. and another proceeded to house of accused situated at Killi Usmanabad where he produced Klashnikov bearing No.66.190434445 lying underneath the beddings with a Magazine containing four live cartridges, which was taken into possession in presence of witnesses. In cross‑examination he stated that recovery was effected at 10‑30 p.m. and at such odd hours the presence of any person does not arise, he further stated that in the East and West there are houses and in front of the house there is an open ground, he denied the suggestions, that persons were present at the time of recovery and no recovery was effected in their presence, he further clarified that on the Ylashnikov beside the number, 'there was figure 56 which was a mark number. A suggestion was put to the witness, that he has not gone to the site and has deposed falsely which was denied by him. In view of above discussion and in the light of evidence available on record, it is manifestly clear that there is no contradiction between inventory i.e. Exh.l‑A and F.I.R. (Marasla).

14. Next contention of learned counsel for appellant was that prosecution evidence suffers from material contradictions on the point of recovery of Klashnikov from the residence of accused. Learned Counsel Mr. Shakeel Ahmed stated that P.W.1 Ghulam Fareed in his testimony before the Court contended that Klashnikov was produced by accused from underneath the beddings whereas P.W. Ali Madad stated that accused led police party to a room of his house and produced Klashnikov No.190434445. The sketch of the house was prepared at the time of effecting recovery i.e. Exh.P/3‑A which indicates that there were three rooms in the house but the witness had not stated that out of which room Klashnikov and maga2ine with live cartridges were recovered, thus according to him the witness had not actually gone to the house of accused and recovery of weapon had been foisted upon him at the instance of Muhammad Usman who is on .inimical terms with accused. Learned State counsel while controverting the stand of counsel for appellant stated that trend of cross‑examination on the statement of above noted witness at least proves presence of police in the house of accused for recovery because it was suggested to witness Ghulam Fareed that Muhammad Usman was also present with police party who replied that Muhammad Usman complainant was not accompanying police at the time of recovery. Similarly the suggestion of defence in which it was asked to him that a false case has been concocted as witness had not gone to his house for recovery has been denied. DW 1 Sardar Muhammad stated that police came to the house of Kotan (appellant) but nothing was recovered. This witness has also stated that he has not seen Usman while presenting Klashnikov to police for showing recovery against accused. DW Omey has also confirmed ‑presence of police at the time of search of house, but he stated that Kotan was not with the police. This version was corroborated by DW Israil who also stated that Kotan was not accompanying the police at the time of recovery. Learned Assistant Advocate‑General also stated that contradictions pointed out by learned counsel are not of much importance. We have considered testimony of prosecution as well as defence witnesses. So far as recovery of Klashnikov from the room of the appellant's home is concerned that cannot be disbelieved, because P.W. Ali Madad stated that the accused led police to a room of his house and produced Klashnikov but he had not stated that Klashnikov was lying beneath the beddings because once the police party had entered in the house, recovery of Klashnikov was effected from the room shown as mark `B' in site plan Ex.P/3‑A. It is important to mention here, that police had no knowledge about place of concealing the weapon in the house or anywhere else because appellant himself led police to his house, so much so the room to which accused had taken police admittedly is situated inside the house as such, whether weapon was found lying beneath the beddings or anywhere else, would not make any material difference and fact remains that Klashnikov was recovered from the house of appellant, and prosecution witnesses were not under obligation to depose that from which room of house recovery was effected.

15. Even otherwise this fact will lose its significance because in cross- examination it was not put to any of the witnesses. that from which room situated in the house, recovery was effected. It is also not acceptable that accused appellant had not accompanied police because police had no grudge against appellant and they had not previously visited his house for effecting any recovery, it was the accused who had taken police to his house: The accumulative effect of total evidence, leads to believe that recovery of Klashnikov was made by police from the house of accused on his, pointation.

16. After having discussed above point now we will take up next contention of learned counsel for appellant i.e. that house does not belong exclusively to accused and there were other occupants as well therefore, accused had no control over the weapon. In this context Mr. Shakeel referred authorities reported in 1983 SCMR 1, 1986 MLD 1043, 1986 PCr.LJ 73, PLD 1965 Lah. 386 and PLD 1967 Peshawar

33. There is no cavil with the proposition that if accused is not found in exclusive possession of a place, he cannot be held responsible for keeping in possession illicit arms and ammunition. Accused had not established on record that premises from where recovery was effected, was also in joint possession of other persons, as such it cannot be held that accused had no control over it. Once accused had raised a special plea, it becomes his duty to establish the same by producing evidence. In this behalf there is no material on record to the effect that besides appellant, any one else was also living in the house.

17. Mr. Shakeel Ahmed, learned counsel for appellant argued that women‑folk and children of accused were also living in the house. So far record is concerned there is nothing to believe even this contention. Under these circumstances there is no hesitation in holding that accused had control over Klashnikov recovered from his house.

18. Mr. Shakeel Ahmed objected that prosecution had not conducted search strictly in accordance with provisions of section 103, Cr.P.C. because witnesses of the locality were not asked to attend the recovery proceedings, although civilian witnesses were available and Investigating Officer had also not offered any explanation during trial, therefore, possession of Klashnikov cannot be attributed to accused and he is entitled for acquittal on this sole ground. He placed reliance on the following reported cases: (i) PLD 1975 SC 657, (ii) PLD 1987 SC 467, (iii) 1987 SCMR 1177, (iv) 1990 PCr.LJ 84, (v) 1987 MID 3183, (vi) PLD 1988 Lah. 547 and (vii) 1988 MLD 38.

19. On the other hand learned A.A.‑G. argued that P.‑W. Ghulam Farid in his examination‑in‑chief, deposed that recovery was effected at about 10‑30 p.m. and there was no question of presence of civilian witnesses at the place from where recovery was made, even otherwise no enmity or mala fides has been imputed against police witnesses.

20. Evidence of official witnesses, cannot be discarded merely for the l reason that they belong to police department. Learned counsel also stated that in view of given circumstances of the case, police had effected recovery of in accordance with law and there is no reason to discard the prosecution evidence. To strengthen his arguments, he placed reliance on PLD 1990 SC 1088, PLD 1990 SC 1176 and PLD 1990 SC 2186.

21. It may be observed that in cross‑examination P.W. Ghulam Farid stated that when police reached at the house of accused the persons namely Ismail, Sardar, Abdul Oadir and Salahuddin were not present, and further voluntarily stated that it was 10‑30 p.m. so the question of presence of any person does not arise. Likewise PW Bilal stated that Israil, Abdul Qadir, Salahuddin and Sardar Mohammad were not present at the spot when the witness with other police officials entered the house of accused Kotan. In statement on oath accused stated that police had falsely implicated him in the case not due to enmity but it was at the instance of his opponent Usman, this portion of statement makes it clear that no enmity or grudge has been expressed by accused against police witnesses. It would be essential to examine that under what circumstances compliance of provisions of section 103, Cr.P.C. is not necessary. No doubt when recovery is to be effected from a house or enclosure, vessel, etc. it should be in accordance with provisions of section 103, Cr.P.C. Therefore, it is to be seen that what are those circumstances under which police can be allowed to take witnesses other than civilians. It has been experienced that due to increase of crimes members of general public try to keep themselves away from the lengthy Court proceedings and they also avoid enmities with the accused persons because no security is provided to them and if by efforts o investigating officer any civilian witness agrees to attend recovery, then he has to suffer for a long period because proceedings in Courts do consume sufficient period, under such circumstances, it is becoming day by day very difficult to secure attendance of civilian witnesses. Due to these reasons police is not forbidden from taking officials as witnesses and their credibility cannot be questioned unless enmity or mala fides is imputed to such type witnesses. In this context following judgments are highly instructive :‑ In PLD 1975 SC 607 (Muhammad Khan v. Dost Muhammad and seven others) it was held as under:‑‑ "However that may be, the requirement of section 103 is not absolute in the sense that failure to comply with it, will make the search illegal. As observed already the object is to guard against possible chicanery and concoction. Therefore, Courts will ordinarily insist on a strict compliance with this requirement and view its non‑compliance with suspicion, unless an explanation is forthcoming for failure to secure the presence of respectable witnesses or omission to examine them in Court." In PLD 1987 SC 467 (Safdar Abbas and 2 others v. State), it was held as under :‑ "Since there was nothing on the record to show that he had conducted the investigation in a dishonest manner, his testimony alone was sufficient in this respect and reliance should have been placed on him. A police officer against whom there is no allegation of dishonest investigation apparent on the record is as good an attesting witness of a recovery as is any independent attesting witness of the same:' In 1987 S C M R 1177 (Sultan and others v. State), it was held asunder:‑‑ "Provisions of section 103, Cr.P.C. are no doubt, mandatory and it is to guard against possible manipulation. Therefore, it is all the more necessary that the investigating officer should have tried in the case to secure the attendance of independent witnesses to attest the recovery of the guns at the pointing of the accused/appellant, and failure to do so would cast doubt on the factum of recovery, although this principle may not be applicable to all the cases where recovery of incriminating articles is made under a different circumstance."

22. Principles enunciated in above judgments delivered by Honourable Supreme Court of Pakistan indicate as under :‑ "The compliance of section 103, Cr.P.C. is not absolute in its nature, therefore, failure in not adhering to the above provisions of law shall not render search illegal unless it is shown by defence that: prosecution had conducted investigation with mala fide and dishonest intention or the witnesses are on inimical terms with accused and. civilian witnesses were available to attend as witnesses, but in order to implicate the accused falsely in commission of offence their attendance has been purposely avoided. In such like cases the recover can be doubted, however, if there is no malice or ulterior motive on part of prosecution the statement of official witnesses cannot be discarded labelling the allegation that they belong to particular Agency."

23. In view of the facts in the instant case, nothing has been brought on record to establish any dishonesty or mala fides on part of prosecution, so much so, prosecution evidence had made it clear that private witnesses were not available due to the factor of time of search. The defence witnesses produced by appellant also failed to prove that prosecution had withheld the evidence of independent civilian witnesses, who were available at the, time of search, therefore, the contention put forth by learned counsel loses its legal value.

24. Result of the above discussion leads us to conclude that appeal has n merits, which accordingly stands dismissed. N.H.Q/412/Q Appeal dismissed.