2012 PLP 1469 (YLR)

SALMAN HAMID, J.

Through this Criminal Revision Application under section 439 Criminal Procedure Code, the applicant has questioned the Judgments dated 28-9-2010 and 15-6-2011, delivered by the XVI-Judicial Magistrate, Karachi, East in Criminal Case No.193 of 2010 and by III-Additional Sessions Judge, Karachi, East in Criminal Appeal No.3 of 2011 respectively. n

2. F.I.R. No.569 of 2009 at Police Station Zaman Town under section 13-D Arms Ordinance was registered against the applicant which was in addition to F.I.R. No.568 of 2009, lodged under section 392 and 34 Pakistan Penal Code on 30-12-2009 before the same Police Station A.S.-I. Muhammad, Younus Jatt during patrolling arrested the applicant when he, (applicant) was caught hold by Zaheer, Nadeem and others. One unlicenced .30 bore Pistol (Pistol) and 6 live bullets from his possession were recovered besides recovery of Rs.3000 and a silver set which he, (applicant) robbed/ stole from the house of Zaheer. Mashirnama was prepared and the applicant was brought to the Police Station, F.I.Rs. were lodged, mentioned above. Investigation followed thereafter; challan was submitted; charge was framed to which the applicant pleaded not guilty and he was tried for offence punishable under section 13-D Arms Ordinance. Four prosecution witnesses were examined. Applicant was convicted and sentenced to undergo rigorous imprisonment of eighteen months and also to pay fine of Rs.2,000 and in default to suffer further simple imprisonment of thirty days. Appeal was preferred by the applicant, which, after hearing, was dismissed, present Criminal Revision Application was filed thereafter.

3. It was urged by the learned counsel for the applicant that the two judgments are the result of misreading and non-reading of evidence and that no Pistol and bullet was recovered from the possession of applicant and it was foisted upon him by the police officials. Alleged recovery of the Pistol was not sealed on the spot and that it was also not sent for Expert opinion to confirm the status and condition thereof (Pistol) if it was genuine or artificial, more particularly when no shot was fired from it. Next it was argued that the recovery was doubtful. It was also implored that there were no private witnesses which was a violation of section 103 Criminal Procedure Code. It was also mentioned that the applicant was arrested unauthorizedly and was taken to police station in violation of law. Then it was contended that there was material contradictions in evidence and that prosecution witnesses were not inspiring enough. The applicant could have not been convicted on the evidence available. Arguing as much, it was asserted that it is a fit case of upsetting and overriding the conviction.

4. Learned State counsel vehemently opposed the application and stated that only the case of 13-D Arms Ordinance has been disposed of whereas main case under section 392 and 34 P.P.C. (F.I.R. No.568 of 2009) is till pending and that the Applicant was caught red-handed. It was also mentioned that out of four witnesses, two were from police and other two were private witnesses, therefore, the allegation, that all the prosecution witnesses were police officials was repelled. It was also mentioned that no defence plea that the applicant was not caught red-handed from the place of incident was raised before the two courts below and that in cross-examination it amply came on record that the applicant was apprehended during action/stealing and the line of cross questioning adopted by the counsel for the applicant proved and suggested that the applicant was also in possession of the Pistol. It was also mentioned that there was no question of implication of the applicant inasmuch as no enmity was pleaded nor was there any. It was therefore argued that the conviction should remain and the application be dismissed.

5. I have heard the learned counsel and A.P.-G. and perused the record. The case against the applicant is that on 30-12-2009 he has caught hold by Zaheer Ahmed and by others when the applicant along with his accomplice was running away after robbery and upon shrieks of Zaheer, people of the locality gathered. At the time of such holding, from applicant's possession Pistol, three live bullets, Rs.3,000 and one silver set were recovered. The applicant was arrested by the police of Zaman Town. In evidence of P.W.1, A.S.-I. Muhammad Younus Jatt, he corroborated the incident of 30-12-2009 detailed above. This evidence of the P.W.1. was fully corroborated by other three witnesses, out of whom two were independent witnesses. In cross-examination nothing came out whereby it could be proved that the unlicenced Pistol was not recovered from him. As a matter of fact in cross-examination the line that was adopted by the counsel for the applicant conclusively established that he was in possession of the Pistol inasmuch as it was only suggested that applicant did not fire from the Pistol. The next question that was posed by the counsel for the applicant was that the applicant did not beat up and tied up family members of Zaheer, son of Saeed Ahmed during the course of stealing again suggested that applicant was present at the time of incident but only the allegation of tying and beating up family members of Zaheer was disputed but it was not disputed that applicant was not present there altogether. It may also be noted that for the first time in Appeal a ground was taken that there was some dealings between applicant and Zaheer (in whose house robbery was committed) and that the applicant having failed to pay back outstanding amount, Zaheer implicated him in a false case. This lame defence at a belated stage by itself shows that Zaheer could not have achieved anything in putting the applicant behind the bars and jeopardize recovery of stuck up amount for a long period of time, which was possible only if the applicant was a free man. As to the argument of the learned counsel for the applicant that no independent witness was taken from the locality and there was violation of section 103, suffice to observe that Nadeem and Zaheer were the two independent witnesses who came forward and stated that the applicant was involved in the offences for which he was charged. As to the argument that Pistol was not sent for expert evidence, it may be observed that it was not a case of firing and killing of a person from the weapon but only a case of possession of unlicenced Pistol, recovered from the applicant. Under given circumstances, expert report was not of any significance. The applicant according to the prosecution was arrested on the spot but still he did not object or raised any question with regard to his arrest on the spot. This non-action and non-denial and non-cross-examination shows that the applicant was apprehended on the spot, red-handed. It is a well settled principle of law that if any piece of evidence is not challenged in cross-examination, it is presumed to be accepted as true. Therefore arrest of applicant on the spot with unlicenced Pistol became an admitted position.

6. Looking at the above evidence, the two courts below rightly came to the conclusion that the applicant was found in action on the spot and from him unlicenced Pistol was recovered for which the applicant had no plausible defence available. For what has been observed, this Criminal Revision application is meritless and is hereby dismissed. M.W.A./M-34/K Revision dismissed.