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Criminal Revision No. 351 of 1967, decided on 19th April, 1980.

----Ss. 13 & 21-Recovery evidence, evidentiary value of--Contention that Assistant Sub-Inspector Police, not being legally competent to carry out search, as a result of which illicit revolver and ammunition recovered from accused, conviction passed against him on such fact liable to be set aside--Contention repelled-Officer making search, held further, not having searched house or premises, provisions of S. 21 of Arms Ordinance not attracted and recovery of illicit arm and ammuni tion could be used as evidence against accused irrespective of fact whether seizing official was legally competent to search person of accused or not.-[Recovery].

Mohan Lahiri and another v. The King A I R 1950 Pat. 243; Emperor v Kutroo A I R 1925 All. 434 and Kuruma v. Queen P L D 1977 P C 32 rel.

---S. 13-Evidence, appreciation of-Nothing on record to show that seizing police official merely acted as a tool in hands of alleged inimical prosecution witnesses and falsely implicated accused in case at their instance-Alleged enmity of prosecution witnesses, held, could not be pleaded as defence to charge brought out against accused on initiative of Police Officer-Even solitary statement of Police Officer, held further, sufficient to prove recovery of illicit arm from accused's possession and order of conviction passed against accused, not assailable, in circumstances.-[Recovery].

Qazi Khalid Iqbal for Petitioner.

Rao Muhammad Yousuf for the State.

Dates of hearing : 26th and 31st March, 1980.

The petitioner was tried and convicted under section 13 of the Pakistan Arms Ordinance, 1965 by Mr. Akhtar Joseph Magistrate First Class, Chakwal vide order dated 29-8-66. He was sentenced to one year R. 1. which on appeal was confirmed by the learned Sessions Judge, Jhelum. He filed the present revision petition which was admitted to hearing on 17-3-67.

2. A case under section 13 of the Pakistan Arms Ordinance, 1965 was registered against the petitioner on the report of Muhammad Akram, Head Constable who while posted as A. S. 1. P. S. Chakwal was present in village Chak Nourang on 16-2-66 on a patrol duty and on receiving information had gone to the flour mill of the petitioner where on searching the person of the petitioner he had recovered an unlicensed revolver alongwith six bullets which the petitioner had concealed in the right fold of his loin-cloth. The recovery was witnessed by Ahmed Khan, Jahan Khan and Noor Khan residents of the village out of whom Noor Khan was not produced at the trial. The other two witnesses Ahmed Khan P. W. 1 and Jahan Khan P. W. 2 fully supported the prosecution case. The petitioner denied the recovery of the unlicensed revolver and the bullets and pleaded that he had been falsely implicated in the case due to enmity with Ahmad Khan and Jahan Khan P. Ws. In support of his plea he examined five defence witnesses. The learned trial Magistrate, however, found that the prosecution had proved its case against the petitioner and accordingly convicted him.

3. The present revision petition was admitted to consider a legal issue as to whether Muhammad Akram H. C. P. W. 3 who was not an officer incharge of Police Station, was competent to carry out a search of the premises of the petitioner under section 21 of the Pakistan Arms Ordinance, 1965 and whether the petitioner's conviction could be challenged on the ground that the unlicensed revolver and six bullets were recovered from him as a result of an illegal search.

4. Learned counsel for the petitioner has referred to the provisions of section 21 of the Pakistan Arms Ordinance, 1965 which empower only a Magistrate or officer incharge of Police Station to cause a search to be made of house or premises occupied by any person who is in possession of any arms, ammunition or military store for any unlawful purpose and to seize or detain any such arms, ammunition or military stores. Learned counsel for the petitioner has contended that Muhammad Akram H. C. who at the relevant time was posted as A. S. I. at P. S. Chakwal, was not an officer incharge of a Police Station and as such was not competent to carry out the search of petitioner's premises. He was also not empowered to search the petitioner's person. The alleged recovery of unlicensed revolver P. 1 and 6 bullets P. 2 from the petitioner's possession was therefore, of no consequence and the petitioner could not have been convicted on the basis of the aforementioned illegal recovery.

5. Learned counsel appearing on behalf of the State has stated that Muhammad Akram P. W. 3 was officer incharge of a Police Station within the meaning of the said term as given in section 4(1)(p), Cr. P. C. because no other Police Officer was present in village Chak Nourang which is to be deemed a Police Station in view of the definition of the said term as given in sec tion 4(l)(a), Cr. P. C.

6. I have considered the arguments of the parties counsel. I am not inclined to agree with the learned counsel for the State that Muhammad Akram, H. C. was officer incharge of a Police Station on 16-2-66 when he was present in village Chak Nourang because Chak Nourang had not been declared as Police Station by the Provincial Government as contemplated by section 4(1)(a), Cr. P. C. although it was a place included in the area of the Police Station, Chakwal. I also see no force in the contention of the learned counsel for the petitioner that the order of conviction passed against the petitioner is liable to be set aside merely on the ground that Muhammad Akram, H. C. was not legally competent to carry out the search as a result of which unlicensed revolver and six bullets were recovered. It may be noticed that Muhammad Akram H. C. had not searched the house or premises of the petitioner and as such the provisions of section 21 of the Pakistan Arms Ordinance, 1965 were not attracted. He had recovered the unlicensed revolver and bullets on the search of the person of the petitioner. It is immaterial whether Muhammad Akram H. C. was legally competent to search the person of the petitioner or not because the recovery of unlicensed revolver and bullets could be used as evidence against the petitioner at his trial. In this connection reference may be made to Mohan Lahiri and another v. The King (A I R 1950 Pat.243) where relying on Emperor v. Kutroo (A I R 1925 All.434) it was held that the conviction for an offence under the Arms Act could not be questioned even if it was based on evidence which had been procured as a result of an illegal search. In Kuruma v. Queen (P L D 1957 P C 32) a similar view was expressed that the question as to whether evidence of a search held by an unauthorised person was admissible or not could be determined by finding out whether the evidence was relevant to the matter in issue and if it was so then the Court was not concerned as to how the said evidence was obtained.

7. The learned counsel for the petitioner has also questioned the order of conviction passed against the petitioner on the ground that there are material discrepancies in the statements of Ahmed Khan P. W. 1 and Jahan Khan P. W. 2 who are both inimical towards the petitioner and on that account no reliance should have been placed on their testimony. The only material discrepancy pointed out by the learned counsel for the petitioner in the statement of Ahmad Khan P. W. 1 is that according to him statements of witnesses were recorded by Muhammad Akram P. W. in his Baithak whereas according to Jahan Khan P. W. 2 and Muhammad Akram P. W. 3 these statements were recorded in front of the petitioner's flour mill when the unlicensed revolver and bullets were recovered. It has been argued by the learned counsel for the petitioner that in case the statements of Jahan Khan and Muhammad Akram are accepted when there was no occasion for Muhammad Akram P. W. to have gone to the Baithak of Ahmad Khan P. W. 1 because the investigation of the case against the petitioner had been completed at the latter's flour mill. The learned counsel has in his view another case in which the petitioner has been convicted under section 224, P. P. C. as he had tried to escape from the lawful custody of Muhammad Akram after his arrest under section 13 of the Pakistan Arms Ordinance, 1965. Since the petitioner has been tried separately in the two cases and the evidence produced by the prosecution and the defence in these cases is also different, the facts of one case cannot be taken into consideration while deciding the other case. The discrepancy pointed out by the learned counsel for the petitioner as to whether the statements of witnesses were recorded at the place where the recovery of the unlicensed revolver and six bullets was effected or in the Baithak of Ahmad Khan P. W. 1 is not material inasmuch as it does not cast any doubt with regard to the recovery of unlicensed weapon and the bullets. Ahmad Khan's statement that Muhammad Akram had recorded the statements of witnesses in his Baithak does not appear to be correct because Muhammad Akram and Jahan Khan both have categorically stated that the said statements were recorded in front of the petitioner's flour mill immediately after the recovery. As noticed above the aforementioned statement of Ahmad Khan P. W. does not adversely affect the prosecution case.

8. As for the enmity of Ahmad Khan and Jahan Khan P. Ws. it may be noticed that the petitioner has not been able to bring anything on record to show that Muhammad Akram H. C. had merely acted as a tool in the hands of the aforementioned prosecution witnesses and that the petitioner had been falsely implicated in the case by him at their instance. The case against the petitioner was registered on the report of Muhammad Akram after he had recovered the unlicensed revolver and bullets fro him. The enmity of Ahmad Khan and Jahan Khan P. Ws. with the petitioner, even if it be assumed that there was any such enmity, could not be pleaded as defence to the charge brought out against the petitioner on the initiative of Muhammad Akram. Even the solitary statement of Muhammad Akram, H. C., who had no animus against the petitioner, would have been sufficient to prove the recovery of the illicit revolver and bullets from the petitioner's possession.

9. In view of what has been discussed above order of conviction passed against the petitioner is not assailable but in the matter of sentence, some modification appears to be necessary because the petitioner was convicted in 1966 and the order of sentence passed against him was suspended by this Court on 17-3-67. The petitioner had remained in jail for abort 9 days when the order of sentence was suspended. The proviso of section 13 of the Pakistan Arms Ordinance, 1965 which required that the punishment for possession of unlicensed fire-arms should not be less than one year was omitted by the West Pakistan Arms (Amend ment Act) 1967 after the conviction of the petitioner by the learned trial Magistrate. The petitioner's sentence of imprisonment, therefore, can be reduced to a term of less than one year after the omission of the afore mentioned proviso. Learned counsel for the petitioner has stated that the petitioner is suffering from tuberculosis and he has shown me a certificate issued by the medical Superintendent. S. Muhammad Hussain Government T. B. Sanitorium Samli on 3-IZ-79 to the effect that the petitioner was found to be suffering from bi-lateral pulmonary tuberculosis. Keeping in view the fact that the petitioner was released from jail in 1967 and it would amount to hardship for him to be sent to the jail again to suffer the un- expired portion of imprisonment especially because of his illness, I substitute the sentence of imprisonment awarded to him by the learned trial Magistrate with the sentence of fine of Rs. 1,000. The petitioner shall pay the amount of fine within a month failing which he shall undergo R. 1. for six months. The revision petition filed by the petitioner is disposed of accordingly.

Order accordingly.

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