The present appeal is directed against the judgment dated 1.7.2005, passed by Mr. Mehmood-ul- Hassan, Additional District and Sessions Judge, Peshawar, whereby appellant Khan Shah was convicted under Section 5 Explosive Substances Act, 1908 and sentenced to suffer seven years R.I.
The whole of immovable property belonging to convict was also confiscated in favour of State as required under Section 5-A of the said Act. The appellant was also convicted under Section 13 Arms Ordinance, 1965 to undergo three years R.I. Both the sentences were directed to run concurrently.
Benefit of Section 382-B Cr.P.C, was, however, extended to the appellant.
2. The prosecution story in brief is, that on 15.4.2003, a police party, headed by SI Khalo Khan (PW.2), of Police Station Chamkani, was on routine `gasht', when at about 1400 hours, it received information about the presence of Khan Shah, required in case FIR No 174 dated 31.3.2003, registered under Section 17(3) of the Offences Against Property (Enforcement of Hadd) Order, 1979, on ring road near Honey Petrol Pump Peshawar. The police party immediately rushed to the spot and apprehend the accused, duly armed with a Klashinkov, loaded with 15 rounds alongwith two spare magazine, loaded with 10/10 rounds. The accused was also found in possession of two hand grenades. These articles were taken into possession vide recovery memo Ex. PC in presence of marginal witnesses. A `murasila' was drafted at the spot and sent to Police Station Chamkani, where its contents were incorporated into FIR Ex. PA by ASI Fazal Muhammad Khan (PW.4) The accused was formally arrested and a case was registered against him vide FIR No, 199 dated 15.4.2003, under Section 5 of the Explosive Substances Act, 1908 read with Section 13 of the Arms Ordinance, 1965.
3. After complying with legal formalities, the Investigating Officer submitted the challan before the trial Court, where prosecution produced five witnesses, namely, Inspector Syed Wahab Khan (PW.1), S.I. Khalo Khan (PW.2), Armourer Liaqat Ali Shah (PW.3), ASI Fazal Mehmood Khan (PW.4) and Constable Ravail Khan (PW.5).
4. The appellant in his examination .under Section 342 Cr.P.C. denied the allegations appearing against him in the prosecution evidence. He pleaded innocence. According to him nothing was recovered from his possession. He, however, did not opt to depose on oath as required under Section 340(2) Cr.P.C.
5. The learned trial Court after hearing the parties came to the conclusion that the prosecution stood succeeded in proving the charge against the accused and thus the accused was convicted and sentenced as mentioned and detailed above.
6. In support of the appeal, Mr. Tafseel Khan Afridi, Advocate contended that the case of the prosecution was replete with doubts recoveries were planted on the appellant; that the mandatory provisions of Section 103 Cr.P.C. have been violated and the non-compliance of this invoilable rule has rendered the prosecution story open to serious doubts; that recovered arms, and ammunition were not sealed at the spot; that the original sanction under Section 7 of the Explosive Substances Act, 1908 has not been tendered in evidence by the prosecution and no sanctity could be attached to the copy thereof, that there is unexplainable delay in dispatch of the arms and ammunition to the Expert and that the trial Court recorded the conviction of the appellant merely on wrong presumptions, which cannot be allowed to remain intact. To supplement the submissions, reliance was placed on State through Advocate-General, Sindh appellant vs. Bashir and others respondents (PLD 1997 Supreme Court 408), Muhammad Shaft appellant vs. The State respondent (PLD 1987 Federal Shariat Court 16), Ashiq Ali appellant vs. The State respondent (2002 P.Cr.L.J. 450 Karachi) and Muhammad Siddique appellant vs. The State respondent (2005 P.Cr.L.J. 726 Lahore),
7. Mr. Amin-ur-Rehman, Advocate, appearing on behalf of the State defended the impugned judgment whole heartedly maintaining that the prosecution witnesses have fully supported the case and their evidence has further been corroborated by the positive reports (Ex. PW.3/1) and (Ex.
PW.3/2) of Fire Arms Expert and Bomb Disposal Squad, besides the facts that the police officials are as good prosecution witnesses as compared to any other witness. In this regard, reliance was placed on Feroz Shah petitioner vs. The State respondent (2002 P.Cr.L.J. 1470 Peshawar).
8. After minutely analyzing the whole evidence on record, I do not Ind any enmity, malafide, ill-will and ulterior motive on the part of the prosecution witnesses to falsely implicate the appellant in this case.
9. The prosecution in order to prove the factum of apprehension of the appellant and recovery of.
Klashinkov, live rounds and two hand grenades from his possession, has produced SI Khalo Khan (PW.2), Liaqat Ali Shah, (PW.3) Armourer Police Line, Peshawar and Constable Ravail Khan (PW.5). All these witnesses have demonstrated complete unanimity on all important aspects of the case. The appellant has remained unable to point about any discrepancy or infirmity in their statements, so as to create a dent in the prosecution case. They have successfully passed the test of cross examination. There are no material contradictions or discrepancies in their evidence. The inconsistencies referred by the learned appellant's counsel are neither material nor of any consequence and could not be made ground for securing his acquittal. Minor inconsistencies in depositions of prosecution witnesses are of inconsequential nature cannot reasonably be considered as ground in disbelieving independent and disinterested witnesses. 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. The police officials are as good prosecution witnesses as compared to any other witness. The submission that compliance of the provisions of Section 103 Cr.P.C. was not made in the case as no two respectable persons of the locality were associated, has no force. The main aim and object of enacting of Section 103 Cr.P.C. is to ensure that the search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression. It never meant to disbelieve the statements of official witnesses in any other circumstance.
10. The learned counsel for the appellant next contended that there were some serious lapses in the process of investigation which had vitiated the trial. However, he has not been able to point out any so-called serious defect in the investigation, other than certain minor lapses which do not affect the validity of the trial. The mere fact that arms and ammunition were dispatched to the Expert for opinion belatedly or photo copy of the sanction was placed on the record, by itself, cannot be considered a good ground to create dent in the prosecution case and vitiate the trial.
The submission of the learned counsel is repelled, being not tenable.
11. The case law cited by the learned appellant's counsel is distinguishable and proceeds on different facts. It is of no help to the appellant.
12. For what has been discussed above, the prosecution has fully established its case against the appellant beyond shadow of reasonable doubt. The evidence led by the prosecution has been appreciated in a legal fashion and no case of misreading or non-reading of evidence has been made out. The conviction of the appellant is maintained.
13. Adverting to the quantum of sentence, I find that the appellant is the first offender. He is a young man of 30 years of age and the entire future is before him. Keeping in view these circumstances, the sentence of seven years R.I. awarded to the appellant under Section 5 Explosive Substances Act, 1908 is reduced from seven years R.I. to five years R.I. However, the sentence awarded to him under Section 13 of the Arms Ordinance, 1965 shall remain intact. With this modification, the appeal fails, which is hereby dismissed.