2008 P Cr (PLP)

MUHAMMAD ALAM, KHAN, J.

Wilayatullah and three others have brought the present criminal appeal under section 410, Cr.P.C. against the judgment and order of the learned Additional Sessions Judge-I Bannu dated 22-6-2006 in Sessions Case No.123/3 through which the appellants were convicted and sentenced as under:-- (a) Muhammad Subhan, Shafizullah and Anwar Kamal Shah under section 13, Arms Ordinance to three years' R.I. with fine of Rs.10,000 each or in default of payment of fine, to three months' S.I. (b) Under section 353, P.P.C. to one year's R.I. each. (c) Co-accused Umar Ayaz and Ismail were acquitted of the charges levelled against them. (d) All the accused were acquitted from the charge under section 7 Suppression of Terrorist Activities (Special Courts) Act and section 148, P.P.C. The benefit of section 382-B, Cr.P.C. was not extended to the appellants and it was ordered that all the sentences shall run consecutively.

2. Shortly narrated the facts of the case are that Sanaullah Khan, A.S.H.O. Police Station City, Bannu sent Murasila to the Incharge of the police station to the effect that he had received a spy information that certain terrorists and dacoits Wilayatullah along with his companions Shafizullah, Muhammad Subhan and Anwar Kamal Shah were present duly armed in the vicinity of Ghoriwala, District Bannu. It was also revealed that Anwar Kamal Shah was a Proclaimed Offender in F.I.R. No.459 dated 1-9-2001 under section 302/34, P.P.C. of Police Station Cantt: Bannu. Consequently the complainant along with the police pose raided the place and when the accused saw the police party, they opened fire at them. The police also fired in self-defence. Because of the firing of the accused, one Aziz Khan, Head Constable was hit and similarly few passersby were also injured. The appellants were arrested along with Kalashnikovs and thus, case vide F.I.R. No.503 dated 3-12-2001 was registered against them. After completion of the investigation the case was put in Court and the learned Additional Sessions Judge-I, Bannu, considering the evidence on record and hearing the learned counsel for the parties, convicted the appellants as aforesaid and hence, the present criminal appeal.

3. During pendency of appeal, an application was submitted on behalf of accused Wilayatullah that he was insane and unable to understand the proceedings of the Court. Resultantly he was referred to Standing Medical Board which was constituted comprising of five renowned doctors and vide their report dated 11-1-2007, it was reported that he is of sound mind and does not suffer from any mental illness and he can defend himself. Thus, this objection of Wilayatullah that he is a person of unsound mind is repelled.

4. It was contended on behalf of the appellants in the written arguments that the impugned order of conviction is perverse and not in accordance with law and thus, is not tenable.

5. On the other hand, Mr. Tariq Aziz Baloch learned Deputy Advocate-General argued that the prosecution has produced overwhelming evidence to the effect that the appellants have committed the offence with which they have been charged. He further submitted that there is not only eyewitness account, but, also circumstantial evidence and recovery of weapons of offence as well as the empties from the spot and thus, the appellants were rightly convicted by the learned trial Court.

6. Perusal of the record reveals that there is overwhelming evidence against the appellants in the shape of eye-witness account as well as circumstantial evidence and recovery of empties from the spot particularly when the appellants were caught red handed along with unlicenced Arms and ammunition. So, the conviction and sentence recorded by the learned trial Court on the data available are perfectly just and sound which call for no interference.

7. However, the denial of benefit of section 382-B, Cr.P.C. as well as the consecutive running of the sentences is harsh which need modification. So, while maintaining the conviction and sentence recorded by the learned Additional Sessions Judge--I, Bannu, it is ordered that the sentence recorded shall run concurrently instead of consecutively and the appellants will be entitled to the benefit of section 382-B, Cr.P.C. With this modification there is no force in the present appeal which is dismissed. H.B.T./80/P???? ??????????????????????????????????????????????????????????????????????????????????? Order Accordingly.