1994 P Cr (PLP)

SH. RIAZ AHMAD, J.

Appellant Muhammad Saleem son of Muhammad Munshi, resident of Qabarstan Road, Shaheenabad, G.T. Road, Gujranwala was tried by a Special Court constituted under the Suppression of Terrorist Activities Act, 1975 at Gujranwala under section 13 of the Arms Ordinance for having got recovered an unlicensed sten gun from underneath a heap of capacitors lying in the factory of his brother-in-law namely Muhammad Akbar. Vide the judgment impugned dated 9th of April, 1992 appellant was found guilty on the aforesaid charge, and thus he was convicted and sentenced to undergo R.I. for four years, and to pay fine of Rs. ten thousand, or in default thereof to suffer further R.I. for six months. Benefit under section 382-B, CI.P.C. was also granted to the appellant by the learned trial Judge.

2. Aggrieved by his aforesaid conviction and sentences, the appellant has preferred this appeal, which shall be disposed of through this judgment.

3. The prosecution case in brief as disclosed in F.I.R. No.114/91 was that on 5th of February, 1991 the appellant was in custody of the police in connection with the investigation of another case, when he disclosed that he had kept an unlicensed sten gun underneath a heap of capacitors in the steel factory of his brother-in-law Haji Muhammad Akbar which he could get recovered. Thus, the appellant led the police party to the steel factory at Ghulam Muhammad Town, and got recovered a sten gun from underneath a heap of capacitors, and the same was taken into possession vide memo. Exh.P.C. attested by Muhammad Akram and Ata-ul-Mohsin Constables besides P.W.4 Sub-Inspector Muhammad Latif. At the police station the formal F.I.R. was drawn by Muhammad Majeed Khan Sub-Inspector P.W.1. In addition to the recovery witnesses, the prosecution also produced Muhammad Hanif Naseem P.W.2, Fire-arms Expert who deposed that the recovered weapon was an automatic weapon known as sten gun.

4. When examined under section 342, Cr.P.C. the appellant denied the charge and stated that in respect of the theft of the car of his brother-in-law Haji Muhammad Akbar, a case was registered at Police Station Model Town. The car was later on recovered from Samson Rohail, Haroon Masih, Gulfam Younas and Saleem Khurshid. Said Saleem Khurshid also got recovered sten gun P.1, and Muhammad Latif Sub-Inspector after the said recovery came to the factory of his brother-in-law, and demanded illegal gatification as reward for the recovery of the car. To which, the appellant objected, and hot words were exchanged between the appellant and the Sub-Inspector. Thereafter, the police arrested the appellant and planted sten gun P.1 upon him. Sten gun and the stolen car had already been recovered at the instance of Saleem Khurshid etc. The appellant did not however, make statement under oath as envisaged by section 340(2), Cr.P.C. but produced Malik Habib Khan, D.S.P. as D.W.1 who stated that on 22-3-1991 while he was posted as D.S.P./C.IA., Gujranwala, the investigation of this case was entrusted to him by the D.I.-G., Gujranwala Range on the basis of an application submitted by Haji Muhammad Akbar, brother-in-law of the appellant. It was stated in the application that the sten gun and the Klashnikov of case F.I.R. No.109 had not been recovered from the appellant, and the investigation of the case was being conducted unfairly and dishonestly, D.W.1 further deposed that he had summoned Akram and Ata-ul-Mohsin P.Ws. and recorded their statements on 29-4-1991. D.W.1 further stated that he also visited the spot on 5-5-1991 and also recorded the statements of ten persons. According to the witness the sten gun had been recovered from Saleem Khurshid, but was planted on the appellant by the local police. The D.S.P./D.W.1 submitted his, report to the D.I.-G., Gujranwala on 5-5-1991 declaring Muhammad Saleem appellant innocent. In cross-examination, the witness further stated that although he had been transferred a D.S.P./Civil Lines, Gujranwala on 5-4-1991 but he continued with the investigation of this case. He further stated that he was not working as D.S.P./C.IA. when he recorded the statements of recovery witnesses namely Akram and Ata-ul-Mohsin, and both the witnesses had supported the prosecution case, and that he did not recommend any departmental action against the constables for having made an incorrect statement before the local police. He further stated that the application Exh.D.A. was submitted before him by Haji Muhammad Akbar, and the ten persons including the applicant Haji Muhammad Akbar did not appear before the local police. The witness admitted the recovery of sten gun from underneath the heap of capacitors lying in the factory of Haji Muhammad Akbar.

5. The learned trial Judge also summoned another D.S.P. namely Ch. Zameer Ahmad, as C.W.1 who deposed before the trial Court that Malik Habib D.S.P. had no authority to conduct the investigation of this case as he had been transferred.

6. With the assistance of the learned counsel for the appellant and the learned AA.-G., we have gone through the entire evidence, and have heard them at length. Learned counsel for the appellant vehemently argued that it was a false case, and the recovery had been planted on appellant, whereas, the actual recovery was effected from Saleem Khurshid. In this regard, emphasis was laid on the statement of Malik Habib, D.S.P./D.W.1. After careful consideration of the evidence, we are of the view that no credence can be attached to the said opinion of the D.S.P. Muhammad Akram Constable P.W.3 belied D.S.P. Malik Habib by stating that he never appeared before the said D.S.P., and that his statement was never recorded by the said Officer. Application seeking transfer of investigation moved by Haji Muhammad Akbar :. also relevant for which the applicant specifically prayed that the investigation c entrusted to C.IA./Gujrawnala. It is thus obvious that an attempt was made k., save the appellant from the rigorous of law, and the D.S.P. Malik Habib 1 I.W.1 had gone out of the way to make obliging concessions in favour of the appellant. However, his evidence proves one fact that the sten gun was covered from underneath a heap of capacitors lying in the factory of Haji Muhammad Akbar

7. It was next contended that the recovery in this case was illegal, inasmuch as, it was violative of section 103, Cr.P.C. as no witness from the public was associated, and therefore, the recovery could not be relied upon. The rule of law laid down under section

103. Cr.P.C. is a salutary principle, but according to the judgments of the Superior Courts, if it is not possible to join any person from the public, then the recovery could not be discarded. However, this question rests upon the facts of each case. As far as facts of this case are concerned, the appellant was admittedly in custody, and had made a disclosure about the concealment of sten gun, and had led the police party to steel factory owned by his brother-in-law Haji Muhammad Akbar, from where, he got recovered the sten gun, therefore, he can be burdened with the knowledge. In the circumstances of this particular case, no person from the factory of his (appellant's) brother-in-law could have the encourage to be a witness to the recovery of sten gun.

8. After considering the case from all angles, we are of the view that the defence version is baseless. There is no enmity between the appellant and the Police Officer who would go to the extent of recovering the sten gun from E Saleem Khurshid, and would plant it on the appellant. Resultantly, this appeal fails, and is hereby dismissed. However, the question of sentence needs interference. Thus, we reduce the sentence of the appellant from four years to three years' R.I. Similarly, sentence of fine is also reduced from ten thousand (Rs.10,000) to Rs. two thousand (Rs.2,000) or in default of the payment of fine to further undergo R.I. for six months. Appellant shall also be entitled to the benefit under section 382-B, Cr.P.C. N.H.Q./M-1321/L?????????????????????????????????????????? Conviction upheld/sentence reduced.