PLJ 2013 Cr.C. (
) 393 Peshawar
Present: Rooh-ul-Amin Khan, J.
NAIK AMANULLAH KHAN--Appellant
Crl. A. No. 148-B of 2011, decided on 6.2.2013.
Arms Ordinance, 1965 (XX of 1965)--
----S. 13--Criminal Procedure Code, (V of 1898), S. 410--Criminal appeal--Recovery of Arms and ammunition from personal possession of appellant/convict--It is case of sudden arrest and not a case of prior information--He has fully established his presence of the spot and recovery of arms and ammunition from possession of the appellant-convict in his presence by the seizing Officer--This witness has also been passed through the test of cross-examination but he remained consistent on all material particulars and fully corroborated the version of the prosecution--Nothing favourable to defence could be brought from him by the defence--ASI has conducted investigation in the case--He also obtained Expert report regarding the recovered arms and ammunitions which further supplements the stance of the prosecution--All the PWs were consistent on the place of occurrence, arrest of the appellant-convict and recovery from his possession--In the present case there was nothing on the record to prove the enmity or ill will of the police witnesses towards the accused to falsely foist the recovery against him--Moreover the norms of the society in the present law and order situation of the country, people do not dare to stand witness against others and particularly in criminal cases to earn enmity of the accused for him and his family--Prosecution has fully proved the arrest and recovery of un-licensed arms and ammunition from possession of the appellant-convict through cogent and confidence inspiring evidence--Trial Court has properly appreciated the evidence available on the record and has rightly convicted and sentenced the appellant-convict by taking lenient view against him on the ground of his tender age and placed him on probation for the period of his conviction and sentence to which no exception can be taken--Counsel for the appellant-convict has failed to point out any illegality or infirmity in the impugned judgment which may warrant interference of High Court in its appellate jurisdiction--Appeal dismissed. [Pp. 395 & 396] A, C & D
----Police officials are also competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are police employees unless and until any ill will or malice on their part towards the accused is proved. [P. 395] B
Mr. Saadullah Khan (Wazir), Advocate for Appellant.
Mr. Ahmed Farooq Khattak, Addl. A.G. for State.
Date of hearing: 6.2.2012.
Questioned herein is the judgment of learned Additional Sessions Judge-II, Karak dated 01.07.2011, whereby appellant was convicted under Section 13 of the Arms Ordinance, 1965 and was sentenced to undergo 03 years R.I. with fine of Rs. 30,000/- or in default thereof to undergo 06 months S.I. On account of being first offender of tender age, lenient view was taken against the appellant by the Trial Court and he was placed on probation under the Probation Ordinance for the period of his conviction and sentence.
2. The prosecution case as enumerated in the F.I.R is that, on 05.06.2010 Awal Rehman S.H.O. along with other police contingents and Hakeem Khan ASI InchargeCobra Mobile as well as Amanullah Incharge Security was on patrol duty of the area. When they reached village Sheikhan Banda, they came across a young boy armed with a Kalashnikovs, who was apprehended and from his possession two Kalashnikovs Bearing No. 1963-934992 and 1953-1682, along with fixed charger containing 15 rounds of same bore were recovered, for which he could not produce any valid license or permit. He disclosed his name as Naik Amanullah (present appellant). The arms and ammunitions were taken into possession vide memo Exh.PC. Murasila Exh.PA/1, was drafted and communicated to the Police Station through ConstableRehman Yousaf, on the basis of which, F.I.R Exh.PA was registered.
3. After completion of investigation, challan was submitted against the accused before the trial Court, where he was formally charged to which he pleaded not guilty and claimed Trial. Hence, the prosecution in order to bring home the guilt of accused examined four witnesses. After closure of the prosecution evidence, statement of accused under Section 342, Cr.P.C. was recorded, wherein he denied the prosecution allegations and professed his innocence. However, he neither wished to be examined as his own witness under Section 340(2), Cr.P.C. nor opted to produce evidence in defence. On conclusion of Trial, learned trial Court, after hearing both the sides, convicted and sentenced the accused-appellant as mentioned above.
4. I have given my anxious consideration to the exhaustive arguments of the learned counsel for the appellant-convict and learned A.A.G. for the State and have gone through the record with their valuable assistance.
5. Awal Rehman S.H.O. who had seized/recovered the arms and ammunition from the personal possession of appellant-convict was examined as PW.4. He in his examination-in-chief reiterated the same version put forth in the murasila. He was subjected to lengthy and searching cross-examination by the defence but his testimony could not be shattered on material aspects of the case. Nasrullah ASHO, who is marginal witness of the recovery memo Exh.PC vide which the recovered arms and ammunitions were taken into possession by the complainant S.H.O. He has fully established his presence of the spot and recovery of arms and ammunition from possession of the appellant-convict in his presence by the Seizing Officer. This witness has also been passed through the test of cross-examination but he remained consistent on all material particulars and fully corroborated the version of the prosecution. Nothing favourable to defence could be brought from him by the defence.Mumtaz Khan ASI PW. 2 has conducted investigation in the case. He also obtained Expert report Exh.PZ regarding the recovered arms and ammunitions which further supplements the stance of the prosecution. All the PWs are consistent on the place of occurrence, arrest of the appellant-convict and recovery from his possession.