1994 P Cr (PLP)

MIAN ABDUL KHALIQ, J.

Sher Muhammad son of Muhammad Bakhsh, aged 25 years, caste Chandia Balouch, resident of Mauza Deh Bupar, Police Station Kashmor, District Jacobabad, was convicted and sentenced under section 13 of the West Pakistan Arms Ordinance (XX of 1965) to undergo 5 years' R.I. and a fine of Rs.30,000, or in default thereof to suffer 1-1/2 years' R.I. by Mian Nusrat Ullah, Judge, Punjab Special Court (Suppression of Terrorist Activities), Bahawalpur Division, Bahawalpur on 23-2-1993.

2. Briefly the facts of the prosecution case as stated by P.W.4 Muhammad Yaqooh, S.H.O. Police Station Ahmadpur Lamba, District Rahimyar Khan, are that on 3-1-1993 during interrogation the appellant while in police custody in case F.I.R. No.105/92 registered under section 302/379/34, P.P.C. Police Station Ahmadpur Lamba, led to the recovery of Klashnikov P.1 alongwith its magazine from underneath a "Koree Tree" concealed in the dust dune. The appellant pleaded not guilty to the charge and in consequence thereof he was tried by the learned Special Court.

3. In order to prove its case the prosecution produced 4 prosecution witnesses in all P.W.1 Muhammad Yaqoob, S.I. P.W.2 Tehleh Muhammad Shah, H.C. P.W.3 Sawan and P.W.4 Sh. Muhammad Yaqoob, Inspector. P.W.1 drafted formal F.I.R. Exh.PA./1 on the basis of complaint Exh.PA. P.W.2 is an armourer who examined the Klashnikov P.1 and opined the same to be automatic/semi-automatic/single/burst and his report is Exh.P.B. P.W.3 had joined the investigation of the present case alongwith the police party in his fields and the appellant while in police custody got. recovered Vlashnikov P.1 from underneath a "Koree Tree" concealed in the "Dhura of Mud" situated in the area of Mauza Dhara, Police Station Ahmadpur Lamba, which was secured by P.W.4 vide memo. Exh.P.C. attested by him. P.W.4 narrated the facts mentioned by him in the complaint Exh.PA. on the basis of which formal F.I.R. Exh.PA./1 was recorded. He also corroborated the statement of P.W.3. He had secured Klashnikov P.1 produced by the appellant after taking it out from underneath a Koree tree concealed in the dust dune which was secured by him vide memo. Exh.P.C. attested by P.W.3.

4. The appellant while making statement under section 342, Cr.P.C. denied the allegations against him and stated that he was innocent and recovery of Klashnikov P.1 was planted against him in order to strengthen the case of the prosecution in the connected murder case. He neither made statement on oath as envisaged under section 340(2), Cr.P.C. nor produced evidence in defence.

5. The learned counsel for the appellant vehemently argued that there was no sufficient evidence to connect the appellant with the commission of the offence. The learned State counsel submitted that the crime property was secured at the instance of the appellant which he had produced after taking it out from underneath of the earth. The place where the crime property was buried, was in the exclusive knowledge of the appellant.

6. We have heard the learned counsel for the parties at length and have perused the record with care. We believe the statements made by P.Ws.3 and 4 proved beyond doubt that the Klashnikov P.1 was secured at the instance of the appellant from underneath the Koree tree concealed in the dust dune which was in his exclusive knowledge. P.W.3 is a public witness and was present in his fields when the police party reached and the appellant led to the recovery of Klashnikov P.1 from underneath the Koree tree concealed in the dust dune. He has stated during cross-examination that the place of recovery was not on the common path and was not accessible to everyone. He refuted the suggestion that crime property P.1 was not secured at the instance of the appellant. P.W.2 is also a public witness and was not involved in any criminal case. He refuted the suggestion that P.1 was not recovered in his presence from the appellant and that he thumb-marked the memo. Exh.P.B. while sitting at the police station and at the instance of relatives of Wahid Bakhsh deceased of the connected murder case, he falsely deposed against the appellant. P.W.4 is a public servant. P.Ws.3 and 4 have made their statements in a straightforward manner. They have no motive to falsely involve the appellant in the present case, and have made consistent statements. Nothing has been brought on record by the defence that P.Ws.3 and 4 had any animus against the appellant. This being so, in our view the conviction was rightly recorded against the appellant. The learned counsel appearing for the appellant has prayed for leniency in the matter of sentence.

7. While maintaining his conviction we reduce the sentence of the appellant from 5 years' R.I. to 3 years' R.I. The amount of fine is also reduced from Rs.30,000 to Rs.10,000 and in case of non-payment of fine, the appellant shall suffer 6 months' R.I. With this modification in the sentence the appeal is hereby dismissed. N.HQ./S-414/L Sentence reduced