1993 P Cr (PLP)

SH. RIAZ AHMAD, J.

This judgment shall dispose of Criminal Appeal No.489 of 1991 filed by Muhammad Aslam, Criminal Appeal No.562 of 1991 filed by Muhammad Anwar and Criminal Appeal No.563 of 1991, filed by Qamar-ud-Din together as they arise out of the same judgment.

2. The appellants named above were tried by a Special Court constituted under the Suppression of Terrorist Activities Act, 1975 on the charge under section 13 of the Arms Ordinance. Vide judgment dated 27th of April, 1991, the appellants were found guilty on the aforesaid charge and were thus convicted and sentenced to undergo rigorous imprisonment for a-term of six years each and to pay a fine of Rs.20,000 each or in default thereof to suffer rigorous imprisonment for a term of one year's R.I. each.

3. Aggrieved by their convictions, the appellants have preferred appeals against the aforesaid judgment.

4. The prosecution case in brief as disclosed in the complaint Exh.P.B. written by P.W.5 D.S.P. Mr. Saif Ullah was that on the night of 13th of September, 1989, he received secret information that at the Dera of Muhammad Aslam, illicit arms and ammunition were lying therein. On the receipt of this information D.S.P. Saif Ullah formed a raiding party consisting of himself and Inspector from Rangers P.W.6 Muhammad Boota and other police officials and thus on the same night at about 11-30 p.m., the Dera of Muhammad Aslam in village Dhakra situated at a distance of 8 miles from Police Station Kanganpur was raided. At that time, Muhammad Aslam appellant was not present while the two appellants Qamar-ud-Din, and Muhammad Anwar alongwith two absconders were found to be sitting at the Dera, they were interrogated and thus at their pointation from the heap of chaff, three gunny bags were recovered. From these gunny bags, a rocket launcher P.1, 29 bombs of rocket launcher; P.2/1-29, 24 cartridges of rocket launcher P.3/1-24, Klashnikov rifle P.4, one pistol of .30 bore P.5, 3,240 bullets of Klashnikov P.6/1-3240, 766 bullets of .7 mm rule P.7/1-766, 25 bullets of .30 bore pistol P.8/1-25, 15 magazines of .7 mm rifle P.9/1-15 and two magazines of Klashnikove rifle P.10/1-2 were recovered. These arms and ammunition were taken into possession vide memo. Exh.PA. attested by P.W.5 D.S.P. Saif Ullah, P.W.6 Inspector Rangers Muhammad Boota and S.I. Muhammad Ishaq (not produced): D.S.P. Rangers Saifullah, then drew aforementioned complaint and sent the same to the police station where formal F.I.R. Exh.P.B./1 was scribed by Riaz Ahmad, Moharrir Head Constable.

5. To prove its case at the trial, the prosecution placed reliance upon the testimony of two recovery witnesses namely P.W.5 D.S.P. Saifullah and P.W.6 Muhammad Boota, Inspector Rangers.

6. When examined under section 342, Cr.P.C. the appellants denied the charge and stated that the Rangers had not recorded the statements of the witnesses under section 161, Cr.P.C. and therefore, the trial was illegal and further more, they had no jurisdiction to investigate and also, they were absent and had been falsely implicated in this case. Four defence witnesses also appeared 'who deposed about the innocence of appellant Muhammad Aslam and stated that he was not present at the Dera and had gone to some other village in connection with offering condolence. D.W.1 Akhtar Ali, Subedar in the Military Intelligence appeared and stated that absconder Muhammad Ashraf was an employee of the F.I.U. and was a Source. His statement has no relevance because Muhammad Ashraf did not face his trial. D.W.2 Sardar Muhammad Yahya stated that he knew Muhammad Aslam and he was in Chak No.141-EB, Tehsil Arifwala in connection with the death of one Sher Muhammad. In cross-examination, it is stated that after the registration of case, Muhammad Aslam and his relatives approached him and told him regarding the registration of the case and then he appeared before Khawaja Maqsud Inspector and at that time, there were many persons at the Dera. D.W.3 Mandha also stated about the presence of Muhammad Adam, appellant in Chak No.141-EB. In cross-examination, it is stated that Muhammad Aslam appellant belonged to his brotherhood. He never appeared before any police officer and nor attempted to depose about the innocence of Muhammad Aslam. D.W.4 Muhammad Hasan, Vice-Chairman of Union Council appeared and stated that he knew the appellant Muhammad Aslam since long time as his lands are near the land of the appellant and no recovery was effected by the Rangers in his presence. He also deposed that Muhammad Aslam had no land nor any Dera in village Dhakra and the Dera from where the arms and ammunition were recovered did not belong to him and it belonged to his father. He further deposed that the Dera was situated in the village and was surrounded by village population. In cross-examination, he stated that he had not brought Shajra pertaining to that place from where the alleged recovery was effected. He also stated that he was not always present at the Dera of Muhammad Aslam and went to his father. He was also not present when the Rangers conducted the raid. He did not appear before any Police Officer to depose about the innocence of Muhammad Aslam appellant.

7. With the assistance of the learned counsel for the appellants namely Messrs S.M. Nazim, Qamar-uz-Zaman and Khawaja lqbal, we have carefully perused the entire record and we have also heard the learned counsel at length.

8. At the very outset, it was argued by the learned counsel for the appellants that initially, the case was registered under section 156 of the Customs Act and the appellants were sent up to face their trial before the Customs Judge but they were discharged. It was also argued that since there was doubt about the make of these arms and ammunition therefore, the appellants were discharged. It was further argued that the raid was initially conducted by Rangers as Customs Officer under sections 162 and 163 of the Customs Act and the recovery effected in consequence thereof cannot be subject-matter of trial under section 13 of the Arms Ordinance. On a question posed by him, it was contended by the learned counsel for the appellants that the recovery in this case cannot be believed as the arms and ammunition had foreign origin. Obviously, this is an anomalous stand taken by the learned counsel for the appellants. In fact, the provisions of sections 162 and 163 of the Customs Act and the recovery of raid conducted thereunder have nothing to do with the Criminal Procedure Code. This view was also taken by a judgment of Federal Shariat Court reported as Niaz Gul v. The State 1991 P Cr. L J 705, therefore, we repel this objection. It is a hard fact that huge quantity of arms and ammunitions were recovered and since there was no justification to retain it, therefore, it fell within the mischief of section 13 of the Arms Ordinance.

9. It is also pertinent to mention that arms and ammunition recovered were of sophisticated nature and its huge quantity also negatives the possibility of its plantation upon the appellants by the police for mala fide reasons.

10. It was next contended that Muhammad Aslam appellant cannot be held liable because he was not present at the time of the raid. It was thus argued that absence of Muhammad Aslam would not make him liable as it was not recovered from his possession. We are not inclined to agree with the learned counsel for the appellants because it was the Dera of Muhammad Aslam and nothing has been brought on the record that the Dera did not belong to him. The defence evidence disclosed that the father of Muhammad Aslam was summoned from his house to visit the Dera of the appellant. Thus, it is obvious that it was the Dera of Muhammad Aslam and it was not the case of Muhammad Aslam appellant that in his absence somebody brought these gunny bags and concealed it at his Dera nor he has expressed ignorance and failed to give satisfactory explanation about the presence of arms and ammunition in the heap of chaff at his Dera, therefore, he will be burdened with the knowledge about the presence of arms and ammunition. Hence we are not convinced with this argument as well.

11. Lastly it was contended that the sentence in this case was too severe and, therefore, it should be reduced. We are inclined to do so and thus while dismissing these appeals we direct that the appellants shall now suffer rigorous imprisonment for a term of four years instead of six years. The sentence of fine is maintained. They shall also be given benefit of the provisions of section 382-B, Cr.P.C. With this modification in the sentence, these appeals are dismissed. N.H.Q./M-959/L???????????????????????????????????????????????????????????????????????????????? Sentence reduced.