2004 PLP 200 (MLD)

IJAZ‑UL‑HASSAN KHAN, J.‑‑‑Through judgment dated 25‑4‑2003 passed by learned Judge, Anti‑Terrorism Court, Peshawar, Munawar Shah appellant and Javed Khan, non‑appellant, were convicted under section 13‑A, Pakistan Arms Ordinance, 1965 read with section 7 of the Anti‑Terrorism Act, 1997 and sentenced to suffer R.I. for 7 years each. Benefit of section 382‑B, Cr.P.C. was accorded to them. Feeling aggrieved, Munawar Shah has filed instant Criminal Appeal No.248 of 2003 challenging his conviction and sentence.

2. The prosecution story in brief is that upon receipt of an authentic secret information on 4‑9‑2002 by Abdul Majid Khan Marwat, AIG, CID, that huge quantity of illicit arms and ammunition were going to be transported from tribal territory to Punjab for sabotage and terrorist activities, a raiding party was constituted under the supervision of Muhammad Ashraf Khan DSP. The raiding party on 4‑9‑2002 arranged 'Naka bandi' at G.T. Road near Haji Camp, Peshawar. In the meanwhile at about 1‑00 p.m., a Motor Car No.LHF‑4830 was spotted coming from Bara side. The mobile party gave a signal to the driver of the car to stop. The driver did not stop the car and accelerated the speed. The car was chased by the mobile squad and apprehended near ' Shobra Chowk' Nowshera. The person driving the car introduced himself Javed Khan son of Iqbal Khan resident of 'Masho Gagar' Peshawar. The person sitting with him on the front seat told his name Munawar Shah son of Mukarram Shah, residentof 'Garhi Saidan' Peshawar. The search of the car resulted in recovery of 8 Kalashnikovs, two Kalakovs, three rifles of 8 MM, two Peshpashas .30 bore, one LMG and one LMC and one thousand cartridges of different bore. A 'Murasila' was prepared at the spot by S.H.O. Qamar Zaman Khan P.W. It was sent to the police station where it was incorporated into an F.I.R. bearing No.22 dated 4‑9‑2002 by A.S.‑I. Faqir Taj P.W.

3. At the trial, the prosecution in order to prove its case produced five witnesses namely A.S.‑I. Faqir Taj (P.W.1), Shahid Khan Senior Civil Judge/Judicial Magistrate Peshawar (P.W.2), A.S.‑I. Anees Zaman Khan (P.W.3), S.H.O. Qamar Zaman (P.W.4) and A.S.‑I./Armourer Muhammad Latif (P.W.5). The accused in their statements recorded under section 342, Cr.P.C. repudiated the prosecution allegations and claimed to have been charged falsely on account of their refusal to oblige S.‑I. .Said Muhammad (P.W.). They also denied having made confessional statements maintaining that their thumb‑impressions and signatures were obtained on a blank paper. They did not lead any evidence in defence and declined to make statements on oath within the meaning of section 340(2), Cr.P.C.

4. The learned trial Judge, acting upon the material available on the record proceeded to hold that prosecution has succeeded to establish its case against the accused beyond shadow of reasonable doubt and the accused are guilty of transporting the illicit arms and ammunition to Punjab for terrorist activities. He convicted and sentenced the accused as noted above.

5. Mr. Safirullah Advocate appearing on behalf of the appellant contended with force that the prosecution case is doubtful for numerous reasons i.e. there are glaring contradictions and discrepancies in the statements of prosecution witnesses, on material particulars prosecution evidence is inconsistent, contradictory and doubtful, therefore, the same even in absence of defence evidence cannot result into conviction; that learned trial Judge erred in law, while relying on the confessional statement of the appellant totally ignoring that the same has been retracted and the legal requirements have not been fulfilled. Additionally he urged that mandatory provisions of section 103, Cr.P.C. have not been complied with and recovery has not, been satisfactorily proved.

6. On the other hand, learned State counsel opposed the appeal on the ground that the judgment of the learned trial Court is based on reasoning and is supported by the evidence on the record. The prosecution witnesses have no enmity or grudge to falsely implicate the appellant in this‑case. Prosecution has succeeded in making out case against the appellant and appeal merits dismissal.

7. We nave heard the counsel of the parties who have also taken us through the entire evidence on the record.

8. It is the case of the prosecution that pursuant to spy information stated to have been received by Abdul Majid Khan Marwat, AIG, CID: on 4‑9‑2002, a raiding party was formed which arranged 'Naka bandi' at G.T. Road Peshawar near Haji Camp, on 4‑9‑2002. At about 1‑00 p.m. a Motor Car No.LHF‑4830 was sighted coming from Bara side., The driver of the car was given a signal to halt but he increased the speed and attempted to run away. The mobile squad chased the car and apprehended the same near Shobra Chowk Nowshera. The search of the card led to recovery of arms and ammunition in question. The driver of the car and his companion were formally arrested and a Murasila' was drafted and sent to police station where it was incorporated into F.I.R. The prosecution has produced two witnesses on the factum of apprehension and recovery of .illicit arms and ammunition. Both those witnesses namely A.S.‑I. Anees Zaman and S:H.O. Qamar Zaman Were subjected to lengthy and searching cross‑examination in order to show that the accused had no hand in the commission of crime and the illicit arms and ammunition were foisted on them from the 'District Malkhana' at the instance of S.‑I. Said Muhammad P.W. who was not on good terms with them. The defence has not been able to shatter the testimony of these witnesses despite extensive cross‑examination. It has been vehemently contended by learned counsel for the appellant that the prosecution evidence is pregnant with serious contradictions and material discrepancies which are sufficient enough to dislodge the story of the prosecution. He maintained that though these discrepancies can be considered as minor and cannot dislodge the story of the prosecution on their own, but when looked into in the general perspective of the case, these discrepancies do count. The submission of the learned counsel is not tenable. No such discrepancy or major contradiction has been pointed out to create dent in the prosecution story. The prosecution witnesses have given a truthful version of the occurrence and we see no good reason to disbelieve them.

9. Another contention of the learned counsel for the appellant is that the confessional statements attributed to the appellant and co‑convict are neither voluntary nor, true and same have not been recorded according to law. The learned counsel maintained that both the accused were produced simultaneously before the Magistrate for recording their confessional statements and thus no implicit reliance could have been placed on this piece of evidence. The learned counsel submitted that confession is the only evidence against the appellant which has been retracted; that the retracted confession is not corroborated by other circumstances; that the Magistrate recording confession has not satisfied himself regarding voluntaries of the confession; that the so‑called confession was recorded in the language other than that of the accused and that the confession was the outcome of duress and torture. It is true that when the confession is neither voluntary nor true and both are subjected to doubts and when same is retracted and when there is no other evidence led by the prosecution it will be unsafe to base conviction thereon, but in the instant case we find that P.W. Shania Khan, Senior Civil Judge/Judicial Magistrate Peshawar has recorded the confessional statement after fulfilling all the legal requirements and giving sufficient time to the confessor to think over. There is nothing on the file to indicate that both the accused were produced before the Magistrate simultaneously for the purpose of recording their confessional statements which has prejudiced their interest and resulted in miscarriage of justice. Again the mere fact that confessional statements were I recorded after five days of police custody, by itself, does not diminish the prosecution story which is sufficiently corroborated by other material on record.

10. In the last leg of arguments it is submitted that the recovery has not been proved satisfactorily and despite prior information, mandatory provisions of section 103, Cr.P.C. have been seriously violated. Departure from provisions of section 103, Cr.P.C. can be made only in exceptional cases, as where compliance with the provisions was impracticable. Reliance was placed on cases reported in 1995 PCr.LJ 455, 1995 MLD 1532 and 1992 MLD 614 (DB). The learned counsel added that failure by police to associate witnesses of public in the case wherein secret information was received by police before recovery of illicit arms, would warrant conclusion that alleged raid and recovery were planned well in advance due to secret information received by police. A case reported in 1998 PCr.LJ 1293 was relied upon in this connection. It is true that object of. section 1030), Cr.P.C. is to ensure proper and honest search by the police, and to avoid harassment concoction, and manipulation at such stage. Under this section it is obligatory on the officer to call upon two or more respectable inhabitants of the locality to witness the search, as well as recoveries which condition is so imperative and mandatory within the contemplation of section 103, Cr.P.C., that anything done in violation thereof would be a nullity in the eye of law. Mere non‑compliance of provisions of section 103, Cr.P.C. would not vitiate the proceedings. Defence in order to succeed must show that there .was either miscarriage of justice or accused was prejudiced in his trial or defence. There may be cases where a Police Officer on account of the locality or time or the risk of destruction of evidence may not find it feasible to engage himself in search of witnesses before actually carrying out the search. The requirement of section 103 1 is not absolute in the sense that failure to comply with it, will male the E search illegal. In this connection reference may profitably be made to the cases reported in PLD 1977 Karachi 484, PLD 1997 Karachi 484; PLD 1975 SC 407, PLD 1975 SC 607 and PLD 1990 Karachi 275.

11. In this case recovery has been admittedly effected at a thickly populated place i.e. Shobra Chowk Nowshera but no private witness from the public has been picked up and associated with the proceedings except two police officials namely A.S.‑I. Anees Zaman and F.C. Khalid Khan. Only one of the marginal witnesses to the recovery memo. prepared in this respect, has been produced at the trial. An attempt has been made to show that recovery has not been satisfactorily proved and it does not connect the appellant with the commission of crime. The submission is not tenable. The recovery has been proved through the I deposition. of A.S.‑I., Anees Zaman. The mere fact that he is ‑a police official is of no consequence. Police Officials are as good witnesses as any other citizen unless any mala fide is established against them. Their deposition cannot be brushed aside simply on the bald allegations that they belong to the Police Department. Recovery cannot be treated as violative of the provisions of section 103 Cr.P.C., unless it is shown that there is enmity between the police officials who appeared as witnesses and the accused or there was an ill‑will on the part of the said police officials. The evidence of the police stands at par with that of any witness from public subject to the test of cross‑examination. Evidence of an Investigating officer cannot be relied upon unless from cross -examination he has been discredited or been guilty of dishonesty during the investigation. Experience has shown that generally resident of locality hesitates to become witness on account of which the Investigating Officer is left with no option but to associate police officials with the recovery proceedings.

12. It is an accepted principle of law that when an accused at a criminal trial' takes a specific plea, the onus invariably shifts and he is required to produce evidence and prove his plea or at least his plea should be supported by the attending circumstances and it should not be unfounded altogether. In the instant case, the recovery has been totally denied by the appellant and it is stated by him that Javed Khan co‑convict was taken to police station by Said Muhammad S.‑I. from Ring Road Chowk. He (appellant) being friend of Javed Khan accompanied him to the Police Station. The plea raised by the appellant has not been substantiated. The mere assertion of the appellant that he simply accompanied co‑convict Javed Khan to the police station on account of having friendship with him, without a positive attempt on his part to substantiate the same, is of no consequence. We are satisfied that the appellant and co.‑convict were I fully involved in the smuggling/transportation of the arms and ammunition in question for the purpose of sabotage and subversive activities. It is difficult to believe that huge quantity of arms and ammunition were planted in this case for the reason that co‑convict refused to accept the demand of S.‑I. Said Muhammad P.W.

13. In the wake of above discussion, finding no substance in this appeal we dismiss the same and maintain the impugned judgment of conviction. N.H.Q./941/P Appeal dismissed.