2006 P Cr (PLP)

IJAZ-UL-HASSAN KHAN, J.

This appeal has been directed against the judgment, dated 12-2-2004, passed by Mr. Muhammad Tariq Afridi, Additional Sessions Judge, Mardan, by which Rahim Khan appellant has been convicted under section 13, West Pakistan Arms Ordinance, 1965 and sentenced to suffer imprisonment for three years with a fine of Rs.5,000 or in default to undergo further one month's S.I. Benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. The prosecution story in brief is, that on 25-5-2001 at 800 hours F.C. Mushtaq Ahmad (P.W.7) along with other police officials of rider squad was on routine `Gasht' of the area when he apprehended a person on the thoroughfare of `Roryah Qadeem' within the limits of Police Station Sheikh Maltoon, Mardan. The accused was in possession of Kalashnikov bearing No.19061340 along with eight live cartridges, for which he could produce no licence or permit. On inquiry he disclosed his name as Rahim Khan son of Inzar Gul resident of Bala Garhi, Mardan. Resultantly, case F.I.R. No.219 dated 25-5-2001 was registered against him under section 13 of West Pakistan Arms Ordinance, 1965 read with section 4 of Suppression of Terrorist Activities Act, 1997 in Police Station Sheikh Maltoon Town, Mardan.

3. After submission of the challan, the learned trial Court charge-sheeted the accused under section 13, Arms Ordinance, to which he pleaded not guilty and claimed trial. The prosecution examined as many as 7 witnesses to prove its case. The accused in his statement recorded under section 342, Cr.P.C. denied the prosecution allegations, and claimed to have been falsely charged. He neither appeared as a witness to his defence under section 340(2), Cr.P.C. nor be led any defence evidence.

4. The learned trial Court after appraisal of the evidence available on record, vide judgment dated 12-2-2004, convicted and sentenced the appellant as narrated in the earlier part of the judgment.

5. Appearing on behalf of the appellant, Syed Asif Shah, Advocate vehemently contended that learned trial Court has not appreciated the evidence in correct and legal perspective, which has resulted in complete failure of justice; that statements of P.Ws. are pregnant with serious infirmities and inconsistencies; that the recovery has not been satisfactorily proved and that the impugned judgment is not sustainable in law.

6. On the other hand, Mr. Sajjad Ali, Advocate for the State, supported the judgment of trial Court and argued that there is sufficient material on record to warrant conviction and that the charge against the appellant was fully established and as such the appeal is liable to be dismissed.

7. We have given mature consideration to the arguments of learned counsel for the parties with reference to the material on record.

8. The prosecution in order to prove the factum of apprehension of the appellant and recovery of the kalashnikov and eight live rounds from his possession, has produced F.C. Mushtaq Ahmad (P.W.7) of Police Station Sheikh Maltoon Town, Mardan, who supported the prosecution story and stated that he along with Mehbood Ali, Tahir and Fazal Hayat were on routine `Gasht' of the area when they arrested accused Rahim Khan having a kalashnikov P.1, which contained ht live cartridges. He could produce no licence or permit in respect of the same. He also stated that he produced the accused before the Investigating Officer, who was on patrol duty in Sector "A" of Sheikh Maltoon Town, Mardan. A.S.-I. Qeematullah Khan examined as P.W.6 deposed that F.C. Mushtaq Ahmad and other officials of rider squad had produced accused Rahim Khan along with kalashnikov, and eight live cartridges before him. F.C. Taj Muhammad (P.W.4) is marginal witness to recovery memo. Exh. P. W.4/1, vide which the Investigating Officer took into possession kalashnikov P.1, produced by F.C. Mushtaq Ahmad along with eight live cartridges. He stated that kalashnikov was not recovered in his presence from the accused but was produced in his presence.

9. From the perusal of the statements of P.Ws. and lengthy cross-examination on them, we do not find any reason for the false implication of the appellant in the present case. The prosecution has succeeded in proving the case against the appellant beyond any shadow of doubt. The appellant has failed to bring on record any mala fide or ulterior motive on the part of the police to falsely implicate him in the present case. These witnesses have fully supported the prosecution story. They have remained absolutely consistent, coherent and have successfully faced the test of cross-examination. The defence has not been able to shatter their testimony or pinpoint any ill-will, which may have prompted them to depose falsely against the appellant. The mere fact that these witnesses belong to Police Department, by itself, cannot be considered a good ground to discard their statements as held in Muhammad Naeem v. State 1992 SCMR 1617. It may be pertinent to mention here that the kalashnikov in question was examined by the Armourer Muhammad Riaz (P.W.2) and found in working condition. His report is in positive.

10. We, as a result of the above discussion, have been constrained to hold that the prosecution has successfully brought home the guilt to the appellant beyond any shadow of reasonable doubt. The defence has miserably failed to extract any material discrepancies or contradictions from the statements of the P.Ws. The appellant did not appear as his own witness as required under section 340(2), Cr.P.C. to contradict the prosecution story which is also fatal to him. The appeal fails which is hereby dismissed. The impugned judgment is maintained and upheld. H.B.T./13/P Appeal dismissed.