2006 PLP 954 (YLR)

AHMED KHAN LASHARI, J.--By this appeal under section 25 of Anti-Terrorism Act, 1997, judgment dated 31-10-2003 passed by learned Special Judge Anti-Terrorism Court Khuzdar, in A.T.A. Case No.8 of 2003, has been challenged whereby the appellant was convicted under section 13-E of Arms Ordinance, 1965 read with section 6 of subsection (3) of Anti-Terrorism Act and sentenced to suffer five years R.I., with fine of Rs.10,000 in default whereof to further suffer S.I. for three months with confiscation of his movable and immovable property, the benefit of section 382-B, Cr.P.C., was extended in favour of appellant.

2. The stated facts of the prosecution case are that during investigation in Murder case Crime No.2 of 2003 registered on 14-2-2003 at Levies Thana Khuzdar, the appellant, as a result of raid, was arrested on 8-4-2003, from his house situated at Gunni Sasol, one Kalashnikov Butt No.49584, Body No.19149485 with magazine containing 10 live bullets were recovered from his possession. The appellant did not produce licence of the fire-arm as such Crime No.7 of 2003 offence under section 13-E of Arms Ordinance, 1965 was registered and weapon along with 10 live cartridges was seized vide memo. Exh.P/5-A. P.W.3 Muhammad Hanif Tehsildar,' the Investigation Officer, after recording statements of witnesses filed challan Exh.P/3-B in the Anti-Terrorism Court Khuzdar and appellant was sent up to face trial.

3. The charge, framed for the offence, was read over to the appellant which was denied and trial was claimed. The prosecution .to substantiate the accusation produced P.W.1, Munir Ahmed Levies Spy as recovery witness, P.W.2 Amir Bakhsh Hawaldar recovery witness as well as the complainant, P.W.3, Muhammad Hanif Shahwani Tehsildar is the Investigating Officer of the case. After close of prosecution evidence the appellant was examined under section 342, Cr.P.C., he disputed the recovery. The appellant did not opt to record his statement on oath or to produce any witness in defence. The learned trial Court after close of parties evidence vide impugned judgment convicted and sentenced the appellant as mentioned hereinabove.

4. Mr. Naseer Ahmed Bangulzai, Advocate, learned counsel for appellant contended that the alleged recovery of Kalashnikov was not effected in presence of independent Mashirs and the Investigating Officer purposely while conducting raid in the house of appellant violated the mandatory provisions of section 103, Cr.P.C., and the weapon was foisted upon the appellant.

5. Mr. Khalid Dogar, Public Prosecutor contended that the recovery of Kalashnikov with live bullets was effected from the possession of appellant in presence of P.W.1, P.W.2 and P.W.3. The witnesses despite of lengthy cross-examination remained firm to their depositions. There is no contradiction or improvement in their statements damaging the case of prosecution. The learned trial Court on proper assessment of evidence rightly convicted the appellant for the offence. 6.? We have heard learned counsel for the parties and have gone through the record as well as impugned judgment. P.W.1, Munir Ahmed Levies Spy deposed that on 8-4-2003 .he along with Tehsildar Khuzdar, Naib Tehsildar Baghbana and other Levies Officials conducted raid at the house of appellant and after exchange of firing he was arrested, on his personal search one Kalashnikov with magazine containing 10 live cartridges were recovered from his possession vide recovery memo. Exh.P/1-A and he stood Mashir to it. P.W.2, Amir Bakhsh Hawaldar Levies deposed that on 8-4-2003 at about 4-00 a.m. (night) he along with Levies officials, Haq Nawaz Naib Tehsildar Baghbana and Tehsildar Khuzdar conducted raid at the house of appellant and after counter-firing he was arrested, on personal search of appellant one Kalashnikov with magazine containing 10 live bullets, were recovered from his possession while 20 empties of Kalashnikov were collected from the place of arrest, the appellant did not produce licence of the fire-arm thus Murasala Exh.P/2-A was sent for registration of the case. P.W.3, Muhammad Hanif Shahwani, Tehsildar, the Investigation Officer, deposed that on 8-4-2003 he along with Levies Officials conducted raid at the house of accused and after exchange of firing his arrest was made, on search a Kalashnikov Butt No.49584, Body No.19149485 with magazine containing 10 live bullets were recovered from his possession. The appellant did not produce licence of the weapon, thus vide Murasla Exh.P/2-A case was registered against him. The witnesses have corroborated each other on material point and proved the factum of recovery, though they were subjected to lengthy cross-examination but no material contradiction or improvement was cropped up damaging the case of prosecution. The appellant's counsel mainly contended that the prosecution version deposed by witnesses may not be believed for lack of independent corroboration. It may be noted that the raid at the house of appellant was conducted at mid-night, in the circumstances non-association of private person in the raid or recovery proceedings was quite understandable. The defence has not alleged that there were independent witnesses available at the spot and the Levies deliberately or intentionally did not ask them to witness the recovery. The Levies or police witnesses are as good as any other citizen and their character or credibility on this score cannot be impeached. Suffice to mention here that the appellant has not specifically alleged or brought on record any material to believe that the prosecution witnesses with a motive falsely involved the appellant in the case. The defence has pleaded that the prosecution in order to strengthen the case has involved the appellant in the case. We have considered the plea of appellant in juxta-position with the prosecution evidence, the ocular account furnished by P.W.I, P.W.2 and P.W.3 is more probable and appeals to the prudent mind. It is to be noted that the Kalashnikov recovered from the appellant and the empty collected from the place of incident were sent to the Expert, which report is positive and we have believed it in the main case, thus we are of the view that the prosecution has successfully proved the case against the appellant beyond any reasonable doubt. The impugned judgment does not suffer from any misreading or non-reading of evidence. The appeal being devoid of any merits is dismissed. H.B.T./8/Q?????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.