2000 PLP 50 (YLR)

MUHAMMAD ASHRAF LEGHARI, J.‑‑‑This appeal is directed against the judgment passed by Judge, Special Court‑III, S.T.A., Karachi in Special Case No.1080 of 1992 arising out of F.I.R. No.339 of 1992 registered at P.S. Soldier Bazar, Karachi for the offence under section 13‑D, Arms Ordinance. On 15‑10‑1992 a vehicle was snatched on gun point by some miscreants and such information was received on wireless by S. I. Rustam Nawaz. The F.I.R. of this incident was registered at the aforesaid police station. Investigating Officer Rustam Nawaz Khan alongwith other police and Army personnel, who were also informed about this incident started searching the culprits. On the same day at about 5 p.m. the culprits while going in the vehicle were chased by Army and Police near Albaila Signal National Bank, Karachi. The vehicle was checked on Teen Hatti Bridge by Army personnel who were busy on their duty at Army Check Post. Sepoy Hasnat Ali Naek and Saleh Muhammad were on duty at the signal but the accused did not stop their vehicle, in spite of the fact that the red light signal was on. They were chased and ultimately at aforesaid point they were over powered and apprehended by Police and Army. On personal search of present appellant one sten‑gun alongwith one magazine and six cartridges were recovered from him, for which he could not produce licence. He was arrested and Mashirnama was prepared at the spot in presence of Mashirs Hasnat Ali and Saleh Muhammad. Police took up investigation and submitted challan in the Court. At the trial the prosecution examined P.W. Sikandar Ali, F.C.M., Karachi East, Hasnat Ali, Khurshid Ahmed, Saleh Muhammad and Investigating Officer Rustam Khan. Ultimately the charge was proved against the appellant and he was convicted to suffer 3 years' R.I. on 4‑4‑1993. It is contended by Mr. Shahadat Awan, Advocate for appellant that the alleged recovery was not witnessed by any private person and the memo. of Mashirnama was signed by Army persons. According to him, there was violation of section 103, Cr.P.C. It is further argued that. the appellant is acquitted in main case of robbery of car snatching and therefore acquittal in main case could have an adverse impact over the instant case of recovery of weapon. It is further contended that the sten‑gun recovered from the appellant was not in working condition. He has made reference to cases reported in Sadoon Khan v. The State 1997 PCr.LJ 577, Shehbaz Ahmed v. The State 1992 PCr.LJ 1335, Suhrab v. The State 1995 MLD 607 and Zaman Iqbal v. The State 1992 MLD

90. Mr. S. Jalil Hashmi learned A.A.‑G. in support of impugned judgment has submitted that the accused was intercepted by police as well as Army personnel who had absolutely no enmity with present appellant. He has further asserted that the recovery of Sten‑gun from the appellant was witnessed by two Army personnels who have fully supported the case of prosecution. The witnesses of recovery were the independent persons. According to learned A.A.‑G. the appellant was acquitted in main case of robbery because of the fact that complainant had not supported the case of prosecution but in this case all the aforesaid witnesses have supported the recovery of weapon and he was arrested at the spot by police personnel and Army officials. Perusal of the record and examination of the aforesaid contentions raised by learned counsel for the appellant and learned A.A.G., it appears that the culprits had snatched a vehicle from one Maqsood Hussain, Police as well as Army personnel on receiving such information kept vigilance and remained active to apprehend culprits on all the important points. P.W. Hasnat Ali and Muhammad Saleh were performing duty as Army personnels at Teen Hatti Post when they received wireless information regarding robbery of vehicle, on which they started checking vehicles. At about 4‑30 p.m. they noticed one Jeep coming from Janghir Road side. They signalled the driver for stopping the vehicle but in spite of that the vehicle was turned to left side and tried to escape by Nishtar Road. As such, the aforesaid P.Ws. took a lift by one car belonging to Khurshid Ahmed Siddiqui and chased the culprits. The culprits were surrounded at Albaila Signal as red light was on. The culprits were intercepted, though they took up their weapons and tried to take an encounter with police and Army personnel but the culprits were overpowered. The police recovered stolen vehicle alongwith sten‑gun in presence of Army personnels, who had absolutely no motive or reason to implicate appellant falsely. The recovery was witnessed by two Mashirs Hasnat Ali and Saleh Muhammad they are from Army and have absolutely no reason to implicate appellant. They were independent witnesses, in the sense that they were not subordinate to Investigating Officer. Their evidence cannot be discredited merely for the reason that they were in Government service. Moreover the situation was such that the probability of encounter with the police could not be overruled and therefore no one from public would take such a risk to join the police under the circumstances. Therefore, it cannot be said that the Mashirnama of recovery was not signed by independent persons. Their evidence does not suffer from any legal or factual infirmity so as to cause any injustice or prejudice to defence. The case‑law cited by the learned defence counsel does not support his contentions and is of no help to him as the facts and circumstances of the said cases are different and distinguishable from the given circumstances of the case in hand. The impugned judgment is based on sound judicial principles of Administration of criminal justice. The trial Court has already taken a lenient view and has awarded a minimum sentence of three years' R.I. keeping in view of all the circumstances. The impugned judgment does not suffer from any illegality, irregularity and infirmity, therefore no interference is called for and the present appeal is dismissed. However, he is to be given benefit of section 382‑B, Cr.P.C. according to law. The appellant is on bail granted by this Court on 24‑6‑1993. The order dated 24‑6‑1993 is recalled and his bail bond stands cancelled. The appellant is called absent. Trial Court is directed to issue process against him according to law and after the production of appellant he shall be remanded to jail to serve out the remaining period of sentence. H.B.T./M‑30/K Appeal dismissed.