2006 PLP 67 (MLD)

IJAZ-UL-HASSAN KHAN, J.

This Criminal Appeal No.56 of 2005 is directed against the judgment dated 14-5-2005 passed by learned Sessions Judge, Bannu. Through the said judgment recorded in case No. 12 of 2003, Rukh Niaz appellant was, sentenced to three years' R.I. for the offence under section 13 Arms Ordinance, 1965, with benefit of section 382-13, Cr.P.C. The appellant, was, however, extended benefit of doubt and acquitted of the charge under section 7 of the Surrender of Illicit Arms Act.

2. The case of the prosecution in brief is, that on 6-7-2003 complainant Muhammad Ayaz Khan, S.H.O., Police Station City Bannu, along with others was present in Police Station. At about 1930 hours, on hearing the report of fire-shots, they came out of the Police Station and noticed some persons armed with Klashnikoves present outside the police station. One of them was found engaged in aerial firing with Klashnikov. On seeing the police party, he started running. He was chased, apprehended and relieved of the Klashnikov. On asking he disclosed his name as Rukh Niaz son of Umer Ayaz, resident of Mamand Killa, Bannu. Klashnikov bearing No. 1974-T 2984 along with 15 live rounds of 7.62 bore was recovered from his possession. He was formally arrested and a case was registered against him under section 13 A.O. read with section 7 of Surrender of Illicit Arms Act. The 'Murasila' was sent to police station, where it was incorporated into F.I.R. by MHC Sadullah.

3. After completion of the investigation, the accused appellant was sent up for trial.

4. Consequent upon framing of formal charge, to which he pleaded not guilty, the accused was put to trial.

5. The prosecution in order to prove its case examined three witnesses, namely, A.S.-I. Shafiullah (P.W.1), MHC Saaddullah (P.W.2) and S.-I. Ayaz Khan (P.W.3).

6. On close of prosecution evidence, statement of accused was recorded under section 342, Cr.P.C. The accused denied the allegations and claimed to have been falsely implicated in the case. In answer to a question 'what is your statement and why are you charged', he made reply in the following words:

"I am innocent and have been falsely charged. In fact, there was marriage ceremony and I was also one of the participants in the ceremony. Some of the absconders made aerial firing during the said ceremony and all the people ran away from the spot and during the process the absconders left their Klashnikovs on the spot as the police attracted there while I being innocent was standing there, hence, was made a scapegoat by the police as they were asking the names of the absconders who were not known to me. Moreover, investigation in the instant case has also been conducted by the preventive staff of the P.S. and not investigation staff, which is clear-cut violation of Police Order Article 18, 2002.

7. However, no evidence was led by him in defence.

8. The learned trial Court Judge on overall assessment of 'the evidence pointed out that the prosecution was successful in proving the guilt of the appellant beyond any reasonable doubt and ultimately convicted and sentenced the appellant as mentioned above.

9. Addressing arguments on behalf of the appellant, Mr. Salimullah Khan Ranazai, Advocate contended that the evidence produced by the prosecution is full of contradictions and omissions; that the tale advanced by the prosecution is totally unbelievable and is destitute of the quality of attracting confidence; that there is no convincing evidence regarding apprehension of the appellant from the spot and recovery of Klashnikov and live cartridges from his possession; that despite the fact that many persons were present at the spot celebrating marriage ceremony, no witness from the public was associated with the recovery proceedings and that the report of the Fire-Arms Expert in no manner connects the appellant with the commission of crime. To augment the contentions, he placed reliance on an unreported judgment of this Court titled as Izzatullah v. The State. (Cr. A. No.516 of 2005).

10. Mr. Ihsanul Haq Malik, Advocate appearing on behalf of the State while supporting the impugned judgment contended that the reasons advanced by the trial Court are correct and proper and the appeal is liable to be dismissed.

11. The prosecution in order to prove the factum of apprehension of the appellant and recovery of the Klashnikov and live cartridges from his possession, has produced two witnesses namely, A.S.-I. Shafiullah (P.W.1) and S.-I. Ayaz Khan (P.W.3) and the positive report Exh.P.K. of the Fire-Arms Expert, Peshawar. Both these witnesses have supported the recovery from possession of the appellant. Their evidence has established that the Klashnikov and live rounds were recovered from possession of the appellant at the above given date, time and place. Both the witnesses have demonstrated complete. unanimity on material points and the appellant has failed to point out any discrepancy of their statements. Contradictions highlighted by learned counsel for the appellant are so minor that on the basis of those, it cannot be held that the trial of the case stood, vitiated. It is true that the P.Ws. are police officials, but it is equally true that they have no reason or motivation for false implication. The learned counsel for the appellant has not urged any rancour or animosity against these witnesses with the appellant. The testimony of a police official cannot be discarded simply for the reason that he belongs to police department. Police man is as good witness as other person until and unless evidence is brought on record to discredit his testimony. The learned counsel for the appellant contended that there were serious lapses in the process of investigation which had vitiated the trial. However, he has not been able to point out any so-called serious defect in the investigation, other than certain minor lapses which do riot affect the validity of the trial. The recovery evidence supported by the Fire-Arm Expert report is beyond doubt and confidence-inspiring. The report of the Expert is positive which has supported the prosecution story in this case. The plea of the appellant regarding his false involvement in the case has no basis. It is an accepted principle of law that when an accused at a criminal trial takes a specific plea, the onus invariably shifts and he is required to produce evidence and prove his plea or at least his plea should be supported by the attending circumstances and it should not be unfounded altogether. The appellant has produced no evidence to prove that he had no hand in the commission of crime and the Klashnikov and live rounds were thrown by the absconders, who were left off by the police for unknown reasons. The mere assertion of the appellant that he was falsely implicated by the police, without a positive attempt on his part to substantiate the same, is of no consequence. Having considered the matter from all angles, I am satisfied that the Klashnikov and live cartridges in question have been recovered from possession of the appellant and he is guilty of the offence. The prosecution has succeeded to establish its case and the appellant has failed to prove his innocence. The appeal is bereft of substance. The same is dismissed. The impugned judgment is maintained and upheld. H.B.T./558/P Appeal dismissed.