2013 P Cr (PLP)

ASSADULLAH KHAN CHAMKANI, J.

Appellants Fazal Akbar and Fazal Subhan have filed this appeal under section 25 of the Anti-Terrorism Act against the judgment and order dated 9-5-2012 of learned Judge Anti-Terrorism Court, whereby the appellants were convicted under section 14 of Arms Ordinance and sentenced to three years' rigorous imprisonment each, further convicted under section 5 of Explosive Substance Act and sentenced to five years' rigorous imprisonment each and further convicted under section 7(h) of Anti-Terrorism Act and sentenced to five years' rigorous imprisonment each. All the sentences were ordered to run concurrently, in case F.I.R. No.127 dated 3-4-2011, lodged by Complainant, Habib ur Rehman Khan SHO Police Station, Pir Baba, District Buner.

2. Brief facts of the case are that on 3-4-2011 at 13:00 hours, during interrogation of case F.I.R. No.7 dated 6-1-2008, registered at Police Station Pir Baba, the appellants led the police party to Deran near their house, situated in village Dingan Byi Kalay and the local police on their pointation recovered one rifle "Pashpasha" with a magazine, one Kalashnikov without magazine, twenty rounds of 7.62 bore, one shell of rocket launcher with one cartridge, one local made bomb, wrapped in plastic bag, at the pointation of appellant Fazal Akbar and two Kalashnikovs with magazine, twenty rounds of 7.62 bore, rocket launcher with cartridge, one local made bomb, wrapped in plastic bag, at the pointation of appellant Fazal-e-Subhan, which they had hidden for the purpose of terrorist activities and as such the above-referred case F.I.R. was registered.

3. After completion of investigation, complete challan was submitted to the trial Court. The trial Court after framing the charge, recording prosecution evidence and hearing learned counsel for the appellants and the learned State counsel, convicted them as mentioned above. Hence, present appeal.

4. Learned counsel for the appellants argued that judgment of the trial Court is against law, facts and the available record; that prosecution has badly failed to prove the charge levelled against the appellants and the evidence produced by the prosecution suffered from material contradictions; that there is no independent witness to support the prosecution version and the local police failed to comply with the mandatory provision of section 103, Cr.P.C. He further argued that the case does not fall under Article 40 of the Qanun-e-Shahadat Order, 1984, therefore, on the basis of such weak evidence, conviction and sentence awarded to the appellants is unwarranted by law. He submitted that there was no credible evidence available with the prosecution to prove the guilt of the appellants beyond reasonable doubt, thus, it was a fit case for acquittal. On the other hand, the learned A.A.-G. appearing on behalf of the State, argued that case against the appellants was proved beyond any shadow of reasonable doubt because a huge quantity of arms and ammunition on the pointation of appellants was recovered and the same cannot be doubted as the police was having no personal grudge with the appellants to rope them in the present case. He further argued that the learned trial Court had thoroughly examined the entire evidence adduced by the prosecution and reached to the conclusion that the guilt of the appellants was fully proved, therefore, such findings, being based on proper and careful appreciation of evidence called for no interference on mere minor discrepancies. He further argued that the trial Court was quite justified to convict the appellants on the basis of material available on the record as there is no glaring contradiction in the testimony of prosecution witnesses. Lastly, he submitted that the terrorism had badly affected the whole area of Malakand Division, so, the appellants are not deserved for any leniency, therefore, prayed for dismissal of appeal.

5. We have considered these arguments and perused the file.

6. Perusal of file would reveal that a huge Arms and ammunition were discovered by the local police at the pointation of appellants. To prove its case, the prosecution examined Habib ur Rehman as P.W.1, who fully supported the prosecution case and stated that the appellants being members of banned organization, were in the custody of police, who during interrogation in another criminal case, disclosed that arms and ammunition were kept by them in some hidden places. He further stated that the appellants led the police party to the places where they had hidden the weapons and, as such, the local police discovered a large number of arms and ammunitions at their pointation and the complainant took the same, vide recovery memo Exh.P.W.17-1, in the presence of marginal witnesses, namely Muhammad, Ghulam SI and Amir Wahid constable. Muhammad Ghulam SI, the marginal witness, when appeared as P.W.5 who fully supported the version of the complainant. Similarly, the Investigating Officer when appeared as P.W.3, who too, supported the prosecution case. Besides the above, the discovered arms and ammunitions were examined by the Arms Expert, Fateh ul Mulk P.W.3 and Jahandad Khan P.W.6, who in their statements confirmed the contents of reports marked as Exh.P.W.6/1 and Exh.P.W.2/1 and further confirmed that they had examined the discovered articles and found it to be of Russain made and in workable condition. The prosecution evidence is consistent on all material particulars and that was un shattered by the defence despite a lengthy cross-examination.

7. Although, the learned counsel for the appellant attempted to discredit the case of prosecution on the basis of some minor discrepancies in the evidence of prosecution witnesses but in our opinion, those are not substantive enough to justify or create reasonable doubt in the case of prosecution about the involvement and guilt of the appellant.

8. The contention of learned counsel for the appellant that the case of the appellants does not fall under Article 40 of the Qanun-e-Shahadat Order, 1984 has also no force because the discovery of any fact on the information of the accused in custody of police is admissible under Article 40 of the Order, ibid. Although, in order to apply Article 40 of the Order, the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source and that the knowledge of the fact was first derived from the information given by the accused but in the instant case, the police was having no previous knowledge of the weapons and when the appellants disclosed such fact, P.W.1 in presence of marginal witnesses, discovered the above referred weapons and the police was having no previous knowledge of it, so, the information of the appellants fully comes within the scope of Article 40 of the order.

9. As far as the contention of learned counsel for the appellant that all the prosecution witnesses are police officials and the provision of section 103, Cr.P.C. have not been complied with during the process of recovery/discovery is concerned, the same is also not convincing one because in such like cases the people feel reluctance to become a witness due to fear of terrorists and it is well-settled principle of law that whenever an accused led and got recovered something, then provision of section 103, Cr.P.C. will not be applicable because provision of 103, Cr.P.C. will be applicable only in the cases where search is to be made by the police officials of a house or place but in this case; there is no question of search of any place rather it was the accused person who led and got recovered the above referred arms and ammunitions. Reliance in this regard can be placed on the case of Mir Muhammad v. The State 1994 SCMR 614 and Riaz Hussain v. The State 2010 MLD 1127.

10. After having gone through the entire evidence it reveals that the appellants had hidden a huge arms and ammunitions for the purpose of terrorist activities in order to create a sense of fear and insecurity in society and we have no hesitation in our mind to hold that the prosecution has proved the factum of discovery/recovery on the basis of convincing evidence. The statements of the prosecution witnesses have been thrashed out, who all have supported the prosecution version and stood firm to the test of cross-examination and nothing beneficial could be elicited casting any doubt in their veracity. We are conscious of the fact that no private witness could be produced but it must not lost sight of that reluctance of general public to become witness in such like cases and it is well-settled by now that police officials are good witnesses and can be relied upon if their testimony remained unshattered during cross-examination and no mala fide, ill-will and personal grudge is attributed to them. Therefore, this appeal against conviction is without any substance, as such, the same is dismissed. MWA/334/P Appeal dismissed.