' Bhai Khan appellant has filed instant Criminal Appeal No,84 of 2004 challenging the judgment, dated 22-9-2004 given by Mr. Jan Muhammad Khan, learned Additional Sessions Judge-II, Lakki Marwat whereby he was convicted under section 13, West Pakistan Arms Ordinance (XX of 1965) and sentenced to suffer three years' R.I. And fine of Rs,3,000.
2. The prosecution case in brief is that on 15-8-2001 at 21-15 hours complainant Muhammad Shafique Khan, S.H.O. Police Station, Daddiwala, District Bannu when reached Wanda Masti Khani in connection with investigation of case F.I.R. No,124, dated 15-8-2001 under section 506, P.P.C. Police Station Daddiwala, Bannu, he came across a person armed with kalashnikov along with bandolier containing spare charger and 46 live rounds of 7.62 bore. On asking, he disclosed his name as Bhai Khan son of Lal Khan, resident of Wanda Sheikh Mansoori, District Lakki Marwat. The same were taken into possession by the complainant vide recovery memo. Exh.P.W.2/1 witnessed by H.C.
Muhammad Aslam Khan (P.W.2) and Raees Khan (not produced). The accused was arrested and a case was registered against him. After completion of usual investigation, challan against the accused was submitted in Court.
3. The prosecution in order to prove its case against the appellant, produced three witnesses in all namely A.S.-I. Muhammad Ayaz Khan (P.W.1), H.C. Muhammad Aslam Khan (P.W.2) and S.H.O.
Muhammad Shafi Khan (P.W.3). P.W.1 on receipt of Murasila incorporated the same into F.I.R.
Exh.P.W.1/1. P.W.2 is one of the marginal witnesses of recovery memo. Exh.P.W.2/1 vide which the Investigating Officer took into possession one kalashnikov along with bandolier, one spare charger and 46 live rounds of 7.62 bore from possession of the appellant. P.W.3 drafted the Murasila, carried out the investigation and submitted challan against the accused in Court. The appellant in his statement recorded under section 342, Cr.P.C. Repudiated the prosecution allegations and professed innocence. He appeared as his own witness on oath as required under section 340(2), Cr.P.C. But did not produce defence evidence.
4. On conclusion of the trial, the learned trial Judge found the appellant guilty and convicted and sentenced him to the term as mentioned above.
5. Mr. Ehsan-ul-Haq Malik, Advocate, learned counsel for the appellant contended, inter alia, that the appellant has been falsely involved in the instant case at the behest of complainant of case F.I.R. No,124, dated 15-8-2001 registered under section 506, P.P.C. At Police Station Daddiwala, Bannu; that no effort was made by the police to associate independent witnesses in the recovery proceedings and no reason whatsoever has been given for non-compliance of provisions of section 103, Cr.P.C. That the prosecution evidence is discrepant and suffers from infirmities and that the investigation has not been conducted fairly. To substantiate the contentions, reliance was placed on Abdul Wadood v. The State 2001 PCr.LJ 173 (Peshawar), Nazif Khan v. The State 2004 PCr.LJ 1011 (Peshawar) Abdul Khanan v. The State 2004 PCr.LJ 92 (Peshawar) and Wazir v. The State 2003 PCr.LJ 359 (Karachi).
6. Mr. Salimullah Khan Ranazai, Advocate appearing on behalf of the State supported the impugned judgment and submitted that appellant was arrested red-handed from the spot in possession of a kalashnikov and a bandolier etc. That prosecution witnesses have demonstrated complete unanimity on all important features of the case; that no mala fide has been shown on the part of police for false implication and that investigation has been conducted fairly. However, he conceded that sentence awarded to the appellant is harsh in the circumstances of the case and calls for interference of this Court.
7. I have considered the arguments of learned counsel for the parties with reference to the material on file.
8. The prosecution has produced two witnesses namely H.C. Aslam Khan (P.W.2) and S.H.O.
Muhammad Shafi Khan (P.W.3) to prove the factum of apprehension of appellant and recovery of a kalashnikov along with bandolier containing spare charger and 46 live rounds of 7.62 bore from his possession. Both these witnesses have fully supported the recovery. Their statements are consistent and reliable and there is no reason to discard their testimony. The submission of learned counsel for the appellant regarding non-compliance of provisions of section 103, Cr.P.C. Is also misconceived. I find myself in agreement with learned State Counsel that in such-like situation where an accused person emerges all of a sudden, the compliance of provisions of section 103, Cr.P.C. Is not an absolute requirement of law.
9. Egarding submission of learned counsel for the appellant that the evidence on record is discrepant and full of contradictions and infirmities on account of which the appellant is entitled for a finding of acquittal, it may be observed that the learned counsel has not been able to point out any discrepancy or flaw creating dent in the prosecution story. The discrepancies highlighted by the learned counsel in the statements of P.W.2 and P.W.3 are minor in nature and cannot be considered sufficient to vitiate the trial. I am satisfied that the appellant is guilty of the offence with which he is charged. The prosecution has succeeded to establish its case and the appellant has failed to prove his innocence.
10. The argument of learned counsel for the appellant regarding various hats simultaneously worn by the Investigating Officer has also failed to impress me. There is no legal prohibition for police officials to be a complainant, a witness to the commission of offence and also to be an Investigating Officer, so far as, it does not, in any manner, prejudice the accused person. In the present case no such prejudice seems to have been caused to the appellant.
11. Adverting to the quantum of sentence, I find that in the facts and circumstances of 'the case, sentence awarded to the appellant is on higher side and the appellant deserves some leniency.
Resultantly, I reduce the sentence of appellant to two years' R.I. And fine of Rs,2,000 or in default thereof, to undergo one month's further S.I. With this modification, the appeal stands dismissed.