2008 P Cr (PLP)

GHULAM MOHY-UD-DIN MALIK, J.

This single judgment is aimed at to dispose of Criminal Appeal No.65 of 2007 and Criminal Revision No.20 of 2007 as both have arisen out of case F.I.R. No.150 dated 15-6-2005 charge under sections 13/13A/13-B/14 of the Pakistan Arms Ordinance, 1965 registered at Police Station Battagram, decided vide impugned judgment dated 16-7-2007 by the learned trial Court.

2. The appeal has been filed by Abdullah Shah and Karim Ullah Shah against the order of their conviction and sentence recorded against them by the learned Sessions Judge, Battagram in Sessions Case No.67/8 of 2005 while the aforesaid revision petition is for the return of vehicle confiscated through the above said judgment and order of the learned trial Court.

3. Briefly stated facts of the case are that on 15-6-2005 S.H.O. Niaz Khan of Police Station Battagram reported that he along with police party was on routine checking, when in the meanwhile a Coaster No.8383IFDH coming from Mansehra side was signalled to stop. It was occupied by two person Abdullah Shah and Karim Ullah Shah, who could not produce the documents pertaining to registration and ownership. of the vehicle nor they were in possession of their national identity cards, therefore, for their thorough interrogation they were brought to the police station where they disclosed that they were taking huge quantity of arms and ammunitions in the coaster. So on their information and pointation the coaster was rechecked and from the secret cavities made in the floor of the vehicle twelve kalashnikovs rifles, three 7.62 bore rifles, fifteen .303 bore rifles, one .7 mm rifle, one .8 mm rifle along with five other rifles of the same bore bearing no number, five 306 bore rifles, three .30 bore pistols, 700 rounds of 7.62 bore, 4000 rounds of .8 mm bore, .30 bore magazines, 40 different kinds of butts, 25 kalashnikovs bolt, .12 and 100 live rounds of .303 bore were taken into possession.

4. After, taking into possession the aforesaid arms and ammunitions, arrest of accused and sending of Murasila for registration of case, the remaining investigation was carried out and on completion of the same challan was put in Court for trial.

5. At the trial both the accused professed innocence and claimed trial. Prosecution in support of its case produced three witnesses in all. Out of them P.W. Waris Khan M.H.C. has registered the case vide F.I.R. Exh.P.A. on receipt of Murasila Exh.P.A./1.

6. Shah Nawaz Khan S.H.O. and Investigating Officer of the case appeared as P.W.2. He reiterated the same story as given in the opening para. of this judgment regarding arrest of the accused and recovery of aforementioned arms and ammunitions. The arms and ammunitions were produced and exhibited in Court and the defence counsel cross-examined him on the point of arrest and recovery of above said articles.

7. Mahbub-ur-Rehman as P.W.3 deposed that he was accompanying the S.H.O. along with other constables, that within his view the above mentioned coaster was stopped for checking and when the driver and cleaner of the vehicle could not produce any record as to ownership and title of the vehicle, they were taken to the Police Station for further interrogation; that the accused disclosed that they were taking the arms and ammunitions under the secret floor of the vehicle and thus on their information these were recovered within his presence. He admitted that the recovery memo. Exh. P. W .2/1 to this effect was correct and correctly bears his signatures. After examination of this witness prosecution closed its case.

8. The accused were examined under section 342, Cr.P.C. They pleaded innocence and false implication. However, wished not to appear as their own witnesses on oath in disproof of the allegations levelled against them.

9. Thereafter the learned trial Court after hearing the arguments of the defence and State counsel found the accused guilty of the charge, convicted them under section 13-A(2) of the Arms Ordinance, 1965 to seven years' R.I. with a fine of Rs.20,000 or in default of payment of fine six months' S.I. was awarded. The convicts were given benefit of section 382-B, Cr.P.C. All the arms and ammunitions and the vehicle were confiscated to the State.

10. The convicts feeling aggrieved have filed appeal against the order of conviction and sentence while Said Khan Shah claiming ownership of the vehicle has filed revision petition for the custody of the vehicle.

11. I have heard arguments of learned defence and State counsel at length and perused the record with their assistance.

12. At this stage it may be recalled that Said Khan Shah has submitted application for Superdari of the vehicle before the Illaqa Judicial Magistrate on 1-10-2005 which application was rejected vide order dated 30-10-2005 and it appears from the record and grounds of instant revision petition that he did not challenge this order before next higher forum. He did not join the investigation or trial. He did not prefer his claim before the trial Court by producing documentary evidence as to his ownership and innocence.

13. Apart from the above on the record there is overwhelming evidence to believe that this vehicle was used in transportation of huge quantity of arms and ammunitions, these were concealed in the secret cavities/parts of the floor of the vehicle and thus it could not be made without the consent and involvement of the owner. The petitioner kept mum over the matter for a sufficient long time and thus his conduct itself shows that he had nexus with the crime. He could not produce any evidence about his chastity at the trial that he was not a party to the crime. Nor that the vehicle was used for transportation of illicit arms and ammunitions without his connivance and consent. So in these circumstances, it has been correctly and rightly confiscated to be State being case property within the purview of section 20 of the Arms Ordinance, 1965.

14. In this view of the matter, the Revision Petition No.20 of 2007 filed by Said Khan Shah stands rejected.

15. Now coming to the merits of main case, suffice it to say that the evidence led by the prosecution is good enough to hold that the alleged recovery of arms and ammunitions was effected from the vehicle possessed by the appellants. They were found and caught red-handed while travelling in the said vehicle. The secret cavity in the body of the vehicle wherefrom the illicit arms and ammunitions were recovered could be in their exclusive knowledge, and that was the reason that the recovery was made on their information and pointation. The witnesses were cross-examined at length, but nothing material was brought out to contradict them on the salient features of the case such as date, time and place of arrest and recovery of arms and ammunitions. P.Ws.2 and 3 go together on the major points and the learned defence counsel could not point out any contradiction and inconsistency in their statements believing that they have made false, fake or fabricated statements.

16. In view of the above, I am of the considered opinion that the prosecution evidence is coherent and the witnesses remained absolutely consistent on salient features of the case. Manner of arrest, number of the accused travelling in the vehicle, place of recovery, number of arms and ammunitions remained the same at the trial as were disclosed in the F.I.R. and in the initial statements of the witnesses. The P.Ws. successfully faced the test of cross-examination. They are found completely disinterested and not inimical towards the accused. The evidence of P.Ws. have been corroborated by each other and also by the fact of recovery of huge quantity of arms and ammunitions. Actually, the quantity of arms and ammunitions is so huge that there could be no possibility of fabrication and concoction.

17. Learned defence counsel vehemently argued that both the witnesses are from police and therefore, they are interested in success of their case: that no one from the public was cited as a witness of the recovery, therefore, in the absence of independent and disinterested witnesses the evidence of police witnesses should be discarded.

18. I do not see any force in his argument because the mere fact that the witnesses are from police department does not justify rejection of their testimony. The provision of section 103, Cr.P.C. is mandatory in respect of search of the place particularly when it is conducted on prior information but in case where the culprit come across with the police all of a sudden during routine checking or mobile duty and at that particular occasion the non-compliance of section 103, Cr.P.C. would not be fatal to the prosecution case. The main object of section 103, Cr.P.C. is to ensure that the search and recovery is conducted honestly and fairly, the possibility of concoction and transgression is excluded but as stated above this section would be applicable when search of a place or premises is conducted on prior information. The requirement of two independent witnesses of recovery is subject to exception of eventuality when the culprits come, across with the police by chance. On this 1999 SCMR 1367 can be relied upon.

19. Normally there could be suspicion as to false implication of accused by the police, in case of one or two rifles or a few rounds but it is unbelievable in case of recovery of such a costly large number of arms and ammunitions of different type. So, in this view of the matter as well the mere fact that the witnesses of the recovery are police officials, they cannot be disbelieved. The recovery was made from the secret place made in the floor of the vehicle which fact itself suggests that it was made for concealment and transportation of illicit arms and ammunitions for sale or subversive activities. The appellants were caught red-handed when they were travelling together in the said vehicle. So all these attending facts and circumstances of the case lead to hold that prosecution case against the appellant is free from reasonable doubt.

20. Lastly, learned defence counsel submitted that the appellants have been awarded maximum sentence of seven years and in case the impugned judgment and order of conviction is upheld the Court may graciously take lenient view in respect of quantum of sentence. Further submitted by citing 1998 PCr.LJ 40 that section 13-A of Pakistan Arms Ordinance, 1965 which was introduced through an Ordinance promulgated on 2-3-1997 has since been repealed/expired due to natural death as it was never made an Act nor it has been extended. Thus, it was no more in the field at the time of registration of the instant case and that in this view of the matter, the prosecution case against the appellant simply falls under the old section 13, Arms Ordinance which is punishable with imprisonment for a term which may extend to seven years, or with fine or with both.

21. On the other hand State counsel while opposing the defence counsel submitted that prosecution has successfully proved its case beyond doubt, order of conviction and sentence being legal and proper should be maintained.

22. I have considered the foregoing submissions of the learned defence counsel and found them attractive in respect of application of section 13, Arms Ordinance in place of section 13-A of the Arms Ordinance, 1965. As the latter section of law due to expiry of said Ordinance is no more in the field.

23. Accordingly, by upholding the order of conviction and sentence, section of law is converted into section 13 of Arms Ordinance, 1965 and accordingly period of imprisonment is reduced from seven to five years' R.I. However, the sentence of fine, order of confiscation of arms and ammunitions along with the vehicle is maintained. The convicts shall have the benefit of section 382-B, Cr.P.C. as extended to them by the learned trial Court which shall be operative from the date of their conviction. The confiscated case property be disposed of in accordance with law.

24. As a result with the above modification in sentence of imprisonment the appeal is partially accepted and stands disposed of accordingly. H.B.T./142/P Order accordingly.