2004 PLP 1523 (MLD)

Sakhi Jan, appellant has filed instant Criminal Appeal No.35 of 2004 under section 25 of the Anti‑Terrorism Act, 1997 challenging judgment dated 21‑4‑2004 of learned Judge. Anti‑Terrorism Court, Bannu whereby on conviction under section 7(B) of Anti‑Terrorism Act read with section 324, P.P.C., appellant was sentenced to suffer seven years R.I. and a fine of Rs.10,000 or in default, to undergo six months S.I. He was further convicted under section 7(H) of ATA and section 353, P.P.C. and sentenced to two years R.I. and a fine of Rs.5,000 or in default, to suffer three months further S.‑I. He was also convicted under section 13 Arms Ordinance and sentenced to three years R.I. The sentences awarded under section 7(H) of ATA and section

353. P.P.C. were ordered to run concurrently whereas the other sentences were to run independently.

2. The prosecution story, in brief, is that, pursuant to coy information stated to have been received by Saadullah Khan, S.H.O., Police Station, Tajori on 20‑2‑2004 that a Proclaimed Offender namely' Sakhi Jan required by the police in a number of criminal cases, has taken' refuge in the fields of Kotka Mehmood, a police party headed by DSP, Naurang Circle conducted raid and encircled the fields. Sakhi Jan, appellant, armed with 7.62 bore rifle resorted to firing at the police party. The police party also fired in self‑defence Ultimately, the appellant was arrested and a 7.62 bore rifle alongwith ten live rounds of the same bore were recovered from his possession case was registered against him under sections 324/353, P.P.C. read with section 13, Arms Ordinance and section 7 of Anti‑Terrorism Act in the shape of Murasila which was duly incorporated into F.I.R. by Gul Janan, MHC. On completion of investigation, challan was submitted against the appellant in the Court of learned Judge, Anti‑Terrorism Court, Bannu to face trial.

3. The prosecution in order to prove its case against the accused produced five witnesses in all. Accused in his statement recorded under section 342, Cr.P.C., denied all the prosecution allegations and claimed to have falsely been charged. He did not appear as his own witness on Oath as required under section 340(2), Cr. P. C. However, he produced Muhammad Iqbal. Munawar Khan and Zila Dar Khan in his defence who stated that accused was arrested from village Torthala and at the time of arrest, he was empty‑handed.

4. On conclusion of the trial, the learned trial Judge finding the appellant guilty, convicted and sentenced him as mentioned in earlier part of this judgment.

5. Appearing on behalf of the appellant, Mr. Salimullah Khan Ranazai, Advocate contended with force that the appellant was not arrested in the manner as alleged by the prosecution that the appellant has produced defence witnesses to prove his innocence but testimony of his witnesses has been disbelieved by the learned trial Court and discarded without any justifiable reason and that the learned trial Judge has taken one sided view of the evidence to disregard of principles of law and justice. Such type of approach to the case has taken him to a patently wrong conclusion.

6. While opposing the aforesaid contentions of learned counsel for the appellant and supporting the impugned conclusion of the trial Judge, Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate‑General submitted that prosecution had fully established its case against the appellant beyond reasonable doubt by producing convincing and reliable, evidence and the impugned conviction and sentence awarded to him is the result of proper appreciation of evidence brought on record which needs no interference.

7. In this case, ocular account of the occurrence has been furnished by H.C. Kalimullah (P.W.3) and S.H.O. Saadullah Khan (P.W.4) who claimed to have taken part in the encounter and arrested the accused- appellant with rifle of 7.62 bore and live rounds of the same bore. The testimony of these witnesses consistently establish the acts perpetrated by the appellant. Their version is consistent on major facts with, of course, discrepancies on minor points. They had absolutely no reason to tell a lie in implicating the appellant. Nothing could come on record to suggest that the investigation agency had a motive to set up the witnesses to depose against the appellant falsely. In any manner, for small contradictions, truthfulness of the ocular testimony cannot be questioned. True, the appellant has also produced defence witnesses but when judged in juxtaposition with each other, the prosecution evidence seems more weighty and confidence inspiring. It may be noted here that during the course of investigation, 14 empties of 7.62 bore were recovered from the spot. The rifle recovered from possession of the appellant bearing No.212031773 and the empties were sent to Fire‑Arms Expert, Peshawar, for opinion. According to report of Fire‑Arms Expert dated 5‑3‑2004 (Exh.P.R.), fourtheen (14) 7.62 MM bore crime empties marked CI to C4 were found to have been fired from 7.62 MM bore rifle in question. This is another piece of evidence connecting the appellant with the commission of crime.

8. Regarding submission learned counsel for, the appellant that the evidence on record is discrepant and fraught with serious infirmities and improbabilities on account of which the appellant is entitled for a finding of acquittal, it may be observed that the learned counsel has not been able to point out any misreading or non‑reading of evidence or contradictions in the statements of prosecution witnesses resulting into misreading of justice. The prosecution has succeeded to establish its case and the appellant has failed to prove his innocence.

9. After deep appraisal of the evidence, I am convinced that prosecution has established its case against the appellant beyond any shadow of reasonable doubt and find no reason whatsoever to interfere in the conclusion arrived at by the trial Court in recording conviction and sentence against the appellant.

10. The appeal being devoid of substance is dismissed and the impugned order is maintained. H.B.T./171/P Appeal dismissed.