' The judgment dated 30-8-2004 recorded by learned Additional Sessions Judge-I, Bannu has been assailed by appellant Shaukatullah alias Shaukat through this appeal. The appellant has been convicted under section 13, Arms Ordinance (XX of 1965) and sentenced to suffer one year's R.I. With fine of Rs, 2,000 or in default thereof, to undergo one month's S.I.
2. Briefly narrated the facts of the case, are that on 17-6-1998 complainant Anwarullah Khan, D.S.P., Bannu received an information that Shaukatullah alias Shaukat with the help of his brother Asmatullah and servant Sirajuddin in his Baithak situate at Gulli Kalla, 13annu prepares `Desi' wine and deals in narcotics business. Purusant to this information, complainant along with Umar Malik, E.A.C. (not produced), Asmatullah, S.H.O. And other police officials proceeded to village Gulli Kalla and raided the Baithak of appellant Shaukatullah on 17-6-1998 at 13-30 hours. Shaukatullah was found present in the Baithak armed with kalashnikov (foreign made) with three magazines having 40 live rounds of 7.62 bore which was recovered from him and taken into possession vide memo.
Exh.P.C. In presence of marginal witnesses. Besides arms and ammunition, other narcotics were also recovered for which a separate case was registered. Shaukatullah was arrested and case was registered against him vide F.I.R. No,181, dated 17-6-1998.
3. In order to prove its case against the appellant, prosecution produced five witnesses in all namely Inspector Sanaullah Khan (P.W.1), Inspector Asmatullah (P.W.2), A.S.-I. Amanullah Khan (P.W.3), A.S.-I. Muhammad Ayaz Khan (P.W.4) and D.S.P. Anwarullah Khan (P.W.5).
4. Appellant in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged. In reply to a question as to what is his statement and why he is charged, accused stated: "I am innocent and have been falsely charged. Nothing has been recovered and the recovery has been planted. Moreover, the alleged Baithak wherefrom the alleged recovery is shown is joint one."
' He neither appeared as his own witness on oath as required under section 340(2), Cr.P.C. Nor produced any evidence in defence.
5. On conclusion of the trial the learned trial Judge found the appellant guilty of the offence under section 13, Arms Ordinance and convicted and sentenced him as mentioned in the earlier part of this judgment.
6. Mr. Gauhar Zaman Khan Kundi, Advocate for the appellant contended inter alia, that the conviction and sentence awarded to the appellant is against law; that findings recorded by the trial Court are based on misappreciation and non-appreciation of evidence; that despite material discrepancies visible in the evidence adduced at trial by prosecution, the appellant has been convicted; that mandatory provisions of section 103, Cr.P.C. Have not been complied with as no independent witness was associated with the recovery; that the alleged kalashnikov was not sent to the Arms Expert for opinion as to whether it was functional or not and that the premises wherefrom the alleged recovery was made was jointly owned/inhabited by number of persons and as such the alleged recovery could not be attributed to the appellant. To augment the contentions, he placed reliance on Loung through Superintendent, Central Prison, Hyderabad v. The State 1999 PCr.LJ 595, Abdul Majid v. The S.H.O. 1999 PCr.LJ 277 (Lahore) and Fareed Ahmad Langra v. The State 1998 PCr.LJ 1368 (Karachi).
7. Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State, on the strength of a case titled Nusrat alias Nusree v. The State PLD 1994 Lah. 93, supported the impugned judgment of conviction and maintained that keeping in view the material on file, trial Judge was quite justified to hold the appellant guilty of the charge and that the discrepancies and contradictions pointed out by learned counsel for the appellant in the statements of P.Ws. Are insignificant and mere non-sending of kalashnikov to Expert is an omission on the part of Investigating Officer and does not vitiate the trial.
8. The prosecution in order to prove apprehension of the appellant on the spot and recovery of kalashnikov and three magazines having 40 live rounds of 7.62 bore from his possession has produced Inspector Asmatullah (P.W.2), A.S.-I. Amanullah Khan; (P.W.3) and D.S.P. Anwarullah Khan (P.W.5). All these witnesses have demonstrated complete unanimity on all important aspects of the case. The appellant has remained unable to point out any discrepancy or infirmity in their statements so as to create a dent in the prosecution case. The evidence of the prosecution is very convincing and the witnesses had no enmity or grudge or motive to falsely implicate the appellant in this case. No material discrepancies and contradictions are found in the statements of P. Ws.
Rather they are consistent regarding apprehension of the appellant and the recovery of arms and ammunition from his possession. Though A these witnesses were subjected to lengthy and searching cross-examination but nothing could be gained by the defence to discard their statements. Non-sending of kalashnikov to Expert for opinion is an omission on the part of the Investigating Officer and cannot be held to be fatal to the prosecution case. The plea of the appellant that the Baithak wherefrom the recovery was allegedly made was jointly owned, remained unproved on the record. The mere fact that provisions of section 103, Cr.P.C. Were not complied with as no independent witness was associated with the raid and recovery proceedings is also not available to the appellant because the raid was conducted in the company of Umar Malik E.A.C. And Anwarullah Khan, D.S.P. And they being responsible Police Officers, cannot be expected to implicate the appellant in a false case particularly in the circumstances when the appellant also did not allege any mala fide on their part.
9. The conclusions drawn and reasons advanced by the trial Court show fair evaluation of evidence which is in accordance with settled principles of criminal jurisprudence. I find no illegality or infirmity in the impugned judgment; therefore, there is no justification to set aside the same. The case-law cited by learned counsel for the appellant is distinguishable and proceeds on different facts. It is of no help to the appellant.
10. Resultantly, the appeal being meritless is dismissed. Conviction and sentence recorded by the trial Court are maintained.