1996 PLP 455 (MLD)

ABDUL RAHIM KAZI, J.‑‑‑This appeal has been filed challenging the judgment passed by the Special Court (STA), Karachi in Special Case No. 142 of 1993. The prosecution case briefly is that on 29‑10‑1993 the complainant S.I. Riaz Muhammad of CIA was on patrol duty alongwith his subordinate, staff in Defence Housing Society area and when he reached near Misri Shah Mazar, he received spy information to the effect that one person was sitting near the stadium in a suspicious her. The complainant collected Muhammad Bashir from Phase VI to act as a witness and reached near the stadium. He found the accused sitting in the bushes and apprehended him in presence of Mashirs Muhammad Bashir and one H.C. Anwar. Such M,ashirnama was prepared on the spot and one Klashnikov was recovered from the appellant. The police after completion of the usual formalities sent up the case for trial. The charge was framed under section 13‑D of the Arms Ordinance to which the appellant pleaded not guilty and claimed trial. The prosecution examined P.W. Muhammad Bashir who is Mashir in this case. He also produced Mashirnama Exh.5, the prosecution then examined complainant SIP Riaz Muhammad who is also 1.0. in the case. The statement of accused was recorded under section 342, Cr.P.C. wherein he denied the allegations levelled against him. The judgment shows that the appellant had stated that he will examine one witness Muhammad Ali but he was never produced. The appellant did not examine himself on oath. The Trial Court then after conclusion of the evidence passed the judgment as above convicting the appellant under section 13‑D of the Arms Ordinance and sentenced him to suffer R.I. for five years and to pay a fine of Rs.5,000 or in default to suffer further R.I. for six months. Being aggrieved the appellant has preferred this appeal. We have heard Mr. Salahuddin Khan Gandapur counsel for the appellant and Mr. Muhammad Sarwar Khan, A.A.:G. for State. At the very out set we may observe that we have examined original record of the trial Court which does not reveal if any application for summoning any defence witness was moved by the present appellant and as such the contention that he could not produce his defence witness is not substantiated. The other contention of the learned counsel is that on a number of hearings when the prosecution witnesses and defence counsel were present, the trial Court did not record the evidence but on one particular date on which the defence counsel was absent, the evidence of the prosecution witness was recorded depriving the appellant of a chance of cross‑examination of the prosecution witnesses by his counsel. We have gone through the case diary and find that charge in the present case was framed on 29‑3‑1994, thereafter the case was adjourned to 10‑4‑1994 on which date the advocate for appellant was called absent. The case again came up on 25‑4‑1994 but it was adjourned to 10‑5‑1994 and on this adjourned date again the advocate for the appellant was called absent. Case was ultimately adjourned to 16‑5‑1994 on which date also the counsel for the appellant was called absent and the judgment was announced. Thus it may be seen from the record that out of the 3 adjourned dates after framing of the charge the defence counsel was absent on two dates and on the fourth date the judgment was announced. In such circumstances the ground taken by the learned counsel has no force and is rather controverted by the record. Lastly, the learned counsel has submitted that in the present case the weapon recovered from the appellant was not sent to Ballistic Expert for his opinion as to whether the weapon falls within the category of automatic, semi automatic or ordinary weapon. It would be pertinent to reproduce clause of paragraph VI of the Schedule to the Suppression of Terrorists Activities (Special Courts) Act, 1975 which reads as under:‑‑‑ "Any offence punishable under the Arms Act, 1878 (XI of 1878),, or any offence punishable under any of the following sections for the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No.XX of 1965), namely, sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb or rocket; `or a light or heavy automatic or semi‑automatic weapon such as klashnikov, a G. III rifle or any other type of assault rifle'. The above provision will show that word ' klashnikov' is used therein and as such the question of report of Ballistic Expert to determine the nature of weapon in the present case does not arise the klashnikov by itself is an automatic weapon. The learned counsel for appellant has placed reliance on the case of Muhammad Idrees v. The State reported in 1992 PCr.LJ p.1287. It may be observed that in this case there were some other grounds also taken by the appellant whereas in the present case the evidence of the two witnesses has not been shattered at any stage nor any doubt with regard to the recovery and nature of weapon has been created. It‑may be observed that each criminal case has its own attending circumstances, facts and features and there are hardly two cases which can be said to be alike in all the aspects. In this matter we are of the considered view that absence of report of Ballistic Expert would not be fatal to the case of prosecution as the nature of the weapon itself and the recovery both stand proved against the appellant. In view of the above circumstances, we find no substance in the present appeal which is, accordingly, dismissed. N.H.Q./A‑1597/K Appeal dismissed.