Record in this case has been received and the learned counsel for the petitioner is ready to argue the suspension of sentence application as a notice case as, according to him, he is fully prepared with the brief. Notice was issued to the State for todays and leaned counsel for the State has entered appearance to argue the case after having prepared his brief as well.
JUDGE Muhammad Khan petitioner/appellant was tried by the learned Additional Sessions Judge, Mianwali, vide judgment dated 5.10.2004, was convicted under Sections 7(b) & 7(c) of the Surrender of Illicit Arms Act, 1991 and sentenced to ten years RI in the case registered vide FIR No, 99 dated 6.9.2001, under Section 7(13)(c) of the Surrender of Illicit Arms Act, 1991, Police Station Paikhel, District Mianwali.
2. Learned counsel for the petitioner in support of this suspension of sentence petition submits that the petitioner has falsely been implicated in the case; that petitioner's son and a son of his brother were murdered in which case the accused were absconders, that a huge quantity of arms was planted on the petitioner; that the Surrender of Illicit Arms Act, 1991 is not applicable in this case; that for the sake of arguments, if any, only a case under Section 13 of Arms Ordinance No, XX of 1965 was made out; that the weapons in question were not sent to the Forensic Science Laboratory; that as held by this Court in PLD 2002 Lahore 36, no public witness was asked to join recovery proceedings in this case; that the complainant Police Officer has himself become the Investigation Officer which is not tenable in law in view of law declared in PLJ 1996 SC 132.
3. On the other hand, learned counsel for the State submits that a huge quantity of ammunition was recovered on the pointation of the petitioner from his house; that the learned trial Court has already taken a lenient view while convicting him and that no case for suspension of sentence is made out.
4. I have heard learned counsel for the parties and have also gone through the submissions made at the bar.
5. In the instant case at about 12.00 (noon) on 6.9.2001, when the police party was present in connection with checking of illicit arms at Sawans Town, they were informed that the petitioner had a Kalashnikove and other illicit arms in heavy quantity in his possession and if a prompt raid is conducted he can be apprehended, a police party was convened, found the petitioner standing in front of his house who tried to run away but was apprehended, he disclosed presence of various arms in his house and led to the recovery of the following weapons from his residential room:--
(i) One Kalashinkove alongwith four loaded magazines each containing 25 live bullets and the total bullets came to 100 in number;
(ii) One .12 bore double barrel gun and 20 live cartridges;
(iii) One pistol .30 bore and 7 live bullets; &
(iv) One iron chain containing 31 live bullets of .303 bore.
6. Contention of learned counsel for the petitioner that the case in question does not fall within the ambit of Surrender of Illicit Arms Act, 1991) has no force because the said Act (Act XXI of 1991) as per Section 1 (explained in Notes of the said section), came into existence in the whole of Pakistan (including the whole Province of the Punjab), with effect from 9th of July, 1991 while the recovery was affected on 6.9.2001. Petitioner failed to produce any valid license for having possessed the said illicit arms.
7. Contention of learned counsel for the petitioner that in the absence of report from the Forensic Science Laboratory, conviction was not sustainable, again is devoid of any force for the reason that Exh. PE is a report of the Forensic Science Laboratory to the said effect on the record.
8. As far as petitioner's stress on the non-association of two recovery witnesses from the public and violation of Section 103 Cr.P.C. is not tenable because it is consistent view of the Apex Court of the country that until and unless those are not inimical towards the accused, their statements are worthy of credence and cannot be discarded merely on the said score. Admittedly, nothing has come on record which could lead to an inference that either the complainant or the witnesses, who are Police Officials, were inimical towards the petitioner or they have involved him in the present case for mala fide reasons. In absence of any such unimpeachable evidence on record, it cannot be said why their testimony is not believed which has rightly been believed by the learned trial Court. Even otherwise, it is known by every body that normally in inhabitants of the locality fall hesitation to associate them with the recovery proceedings due to fear either of the accused party or the police, which is natural one.
9. Much stress has been laid on the contention. that the Police Officer who was complainant of the case, had become Investigating Officer of the case and was not competent to do so, which further has no force because there is no bar in this regard. Even otherwise, sub-section(2) to Section 156 of the Cr.P.C. expressly provides that "No proceedings of a Police Officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate". This is in line with the ratio laid down by the August Supreme Court of Pakistan in State Through Advocate General Sindh vs. Bashir And others (PLD 1997 Supreme Court 408).
10.I am fortified by a judgment of the August Supreme Court of Pakistan reported in Mir Muhammad vs. The State (1995 SCMR 614), wherein like the case in hand, the accused himself led to the recovery of illicit arm. The Apex Court of the country, at page 615 of the judgment, concluded as under:-- " In the instant case, the appellant had led the police to his house and pointed the place wherefrom the gun was recovered. Neither search warrants were issued by the Magistrate for the search of the house of the appellant nor the Police had searched his house/place of its own. The plain reading of Section 103 Cr.P.C. would show that the provisions of this Section apply to a case where the Police conducts search of a house/place to recover an article for which search is to be made and not to a case where anything is to be discovered in consequence of the information given by or on the pointation of the accused. The recovery to be made on the pointation of the accused in relevant under Article 40 of the Qanun-e-Shahadat, 1984. The association of the two respectable inhabitants of the locality is not required in a case where the accused himself leads the Police to a particular place and gets the article recovered"
11.The precedent case law relied upon by the learned counsel for the petitioner is distinguishable from the facts and circumstances of the case, therefore, are not applicable.
12.After having deals with the contentions raised by the learned counsel for the petitioner in support of this suspension of sentence petition, this Court is of the, prima facie, view that it is not a fit case for suspension of petitioner's sentence. Resultantly, this petition, having no merit is dismissed.