' SAID MAROOF KHAN, J.---The appellant Habibullah along with his co-accused Nasibullah and Khairun Nawaz alias Khairullah was charged in a case registered under sections 13/14 Arms Ordinance and 5 Explosive Substances Act vide F.I.R. No,309 dated 23-10-2004 at Police Cantt.
Bannu. After having been tried by the learned Additional Sessions Judge-V, Bannu the co-accused Nasibullah and Khairun Nawaz were acquitted while the appellant was convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs,5,000 or in default to suffer simple imprisonment for two months for offence under section 13 Arms Ordinance, two years rigorous imprisonment and to pay a fine of Rs,2,000 or in default to undergo simple imprisonment for one month for offence under section 5 Explosive Substances Act vide judgment dated 5-1-2006.
Both the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was extended to the appellant. Being aggrieved of his conviction and sentence the appellant filed the instant appeal.
2. The facts of the case as stated in the F.I.R. Are that on 23-10-2004 Bashir Khan. S.H.O. Police Station Cantt. Bannu received spy information that a huge quantity of explosive substance and ammunition was being transported in a Datsun Pick-up No,5086/PR from Mir Ali (North Waziristan Agency) to Bannu. On this information he along with Muhammad . Salim A.S.-I., Iftikhar Ali Shah A.S.-I., Abdur Rauf LHC and other police officials effected 'Nakabandi' on Bannu-Miranshah ' road in front of Police Station Cantt. D.I.Khan. At about 1600 hours the abovementioned Datsun Pick-up reached there which was stopped and taken to the premises of Police Station. On inquiry the driver of the Pick-up disclosed his name as Habibullah while the two other persons sitting, on the bags containing maize, in the rear portion of the Pick-up disclosed their names as Nasibullah and Khairun Nawaz alias Khairullah. In the meanwhile Sikandar Khan D.S.P. Circle also reached there and in his presence 36 bags. Containing maize were unloaded from the Pick-up and from beneath the said bags 87 boxes/crates each containing 440 rounds, three bags each containing 300 rounds and two bags containing 1950 rounds of Ziaraki rifle, four bags containing 6680 rounds of 8 mm and one bag containing 437 rounds of 7.62 bore were recovered. In addition another bag containing spare parts of machine guns, five bags containing 114 barrels of different weapons, one LMG, two rifles Mark-4 bearing No,64L5950 and 507531 and three bags containing explosive material weighing 120 kilograms were also recovered. The driver Habibullah and the two co- accused could not produce any licence or permit for transportation of the abovementioned arms, ammunition and explosive material, therefore, they were arrested and the present case was registered against them vide F.I.R. No,309 dated 23-10-2004 at Police Station Cantt., Bannu.
3. The explosive substance, ammunition, spare parts of machineguns and the arms recovered from the Pick-Up were taken into possession by Bashir Khan S.H.O, Police Station Cantt., Bannu vide recovery memo. Exh.PC in the presence of the eye-witnesses. The sample of the recovered explosive substance was separated and sent to the Bomb Disposal Squad N.-W.F.P. Peshawar for analysis. The Investigating Officer also recorded the statements of the P.Ws. The appellant Habibullah was produced before the Magistrate who recorded his confessional statement. On the receipt of the report Exh.P.W.2/1 from the A.I.-G. Bomb Disposal Squad N.-W.F.P. Peshawar and on completion of the investigation the S.H.O. Police Station Cantt., Bannu submitted challan in Court for trial of the accused.
4. The accused including the appellant were summoned and the formalities of section 265-C, Cr.P.C, were observed whereafter the charge was framed against the appellant and his co- accused to which they pleaded not guilty. At the trial the prosecution, in order to prove the guilt of the appellant and his two co-accused, examined P.W.1, Bashir Khan the then S.H.O. Police Station Cantt., Bannu, P.W.2 Gulab Khan, S.-I. Investigation, P.W.3 Iftikhar Ali, Shah A.S.-I., P.W.4 Tariq Abbas, Judicial Magistrate and abandoned the remaining P.Ws. Thereafter the appellant and the two co- accused were examined under section 342, Cr.P.C. The co-accused denied having hand in the commission of offence and stated that they had boarded the Datsun Pick-up as passengers and had no concern with the recovered explosive substance, arms and ammunition. The appellant Habibullh also denied the ' charges and professed innocence. About his confessional statement he stated that it was inadmissible in evidence as the same was not recorded with his free-will. He had further stated that the alleged arms and ammunition were not sent to the Expert to verify as to whether the same were in working condition or not. The accused had, however, not produced any evidence in defence nor recorded their statements under section 340(2), Cr.P.C. On conclusion of the trial the learned Additional Sessions Judge-V, Bannu acquitted the two co-accused and convicted and sentenced the appellant as stated above.
5. Mr. Abdul Latif Khan Baloch learned counsel for the appellant contended that the S.H.O. Police Station Cantt., Bannu had prior information about the commission of the offence but he had not bothered to associate any independent witness of the locality with the search and recovery proceedings in compliance with the provisions of section 103, Cr.P.C. That the P.Ws, who are alleged to have witnessed the search and recovery are police officials and their testimony being not corroborated by any other independent evidence was not sufficient for conviction of the appellant.
That the alleged confessional statement was extracted from the appellant on the fourth day of the occurrence and that too under duress and coercion and thus it could not be taken into consideration. It was further argued by the learned counsel that on the same evidence the two co- accused have been acquitted and thus there was no justification tor conviction of the appellant.
The learned counsel further submitted that the recovered Arms and Ammunition were not sent to the Arms Expert to verify as to whether the same were in working order and that in the absence of such evidence the conviction of the appellant for offence under section 13 Arms Ordinance is not sustainable.
6. On the contrary, Mr. Muhammad Sharif Chaudhary leamed Deputy Advocate-General representing the State contended that the two co-accused were acquitted by the learned trial Court for the reason that the Investigating Officer as well as the convict-appellant stated at the trial that the acquitted accused had boarded the Datsun Pick-up as passengers and had no concern with the case property. Further argued- that huge quantity of Arms, ammunition and explosive material was loaded by the appellant in the Pick-up at Mir Ali (North Waziristan Agency) and he was caught red-handed while transporting the same from tribal area to Bannu and that this fact was sufficiently proved by the evidence of P.W.1 and P.W.3 against whom no animosity was alleged by the appellant. That the police officials are as good witnesses as other members of the public, therefore, the learned trial Court had rightly relied upon their evidence and convicted the appellant for the offence in question.
7. I have considered the submissions made by learned counsel for the parties and perused the entire record of the case. It is true that in this case the appellant's conviction entirely rests on the evidence of the police officials and no independent witness was associated with the search and produced in the case to lend support to the prosecution version but this omission on the part of the prosecution would not vitiate the proceedings. The mere fact that the prosecution had not complied with the provisions of section 103, Cr.P.C, is not sufficient for setting aside the conviction of the appellant. It is not an absolute requirement that in each and every case the witnesses from the public must necessarily be produced. This requirement depends upon the facts of each case. The main object of the provisions of section 103, Cr.P.C, is to avoid concoction. In the present case neither there is any allegation of concoction nor the appellant is alleged to have been prejudiced in his defence due to non-compliance of the above provision of law. It is also not alleged that the recovered items were planted by the police officials just to make out a false case against the appellant for some ulterior motives.
8. On the record it is established that on 23-10-2004 the appellant Habibullah was transporting huge quantity of unlicenced arms, ammunition, spare parts of LMGs and explosive material weighing 120 kilograms in Pick-up No,5086/PR which was driven by him. The Pick-up was intercepted in front of Police Cantt., Bamiu and it was taken to the premises of Police Station where on its search the recovery was made by P.W.1 Bashir Khan, S.H.O, in the presence of P.W.3 Iftikhar Ali Shah and other police officials. P.W.1 Bashir Khan, S.H.O, categorically stated that on 23-10-2004 at 1600 hours in front of Police Station Cantt., Bannu the abovementioned Datsun Pick-up driven by the appellant was stopped and during its search abovementioned 48247 rounds of different bore, arms, explosive material weighing 120 kilograms, spare parts of LMGs and barrels of different weapons were recovered from the vehicle and taken into possession vide recovery memo. Exh.PG in the presence of marginal witnesses of the recovery memo, and other officials as well. In lengthy cross-examination of P.W.1 nothing material was brought on record to shatter his testimony. P.W.3 Iftikhar Ali Shah, who is alleged to be one of the marginal witnesses of the recovery memo., fully supported the prosecution case and stated that the recovery was made in his presence. This witness was not cross- examined and thus his statement goes unchallenged. The evidence of P.W.1 stood duly corroborated by the evidence of P.W.3. None of the two witnesses having deposed about the recovery had any enmity with the appellant so as to implicate him in a false case. No reason existed for false involvement of the appellant. Even otherwise false implication of the appellant was not possible because of huge quantity of arms and ammunition which could not be planted by the police officials. The recovery of huge quantity of arms and ammunition rules out the possibility of false implication of the appellant. The mere fact that both the witnesses are police officials would not adversely affect the prosecution case as the police officials arc as good witnesses as other witnesses especially when no enmity has been shown by the defence for false involvement of the accused. The prosecution case was further corroborated by the positive report of AIG Bomb Disposal Squad N.-W.F.P. Peshawar who had examined the sample of explosive material.
9. The objection of the learned counsel for the appellant that the arms and ammunition were not sent to the Arms Expert for his opinion and that in the absence of the positive opinion of the Arms Expert the appellant could not be convicted the offence under section 13 Arms Ordinance has got no force. The non sending of arms to the Arms Expert for his opinion as to whether the arms were in working condition or not was not fatal to the prosecution case .Because the appellant had not alleged that he had transported unserviceable weapons and ammunition. The sending of ammunition to the Arms expert for his opinion was also not a legal requirement. It may also be mentioned that the arms, though not in working order, fall within the definition of arms and possessing the same without licence is an offence under the Arms Ordinance.
10. As far as the acquittal of the two co-accused is concerned, the appellant cannot take benefit of the acquittal of the two co-accused because he himself stated in his confessional statement Exh.P.W.4/2 that the co-accused had boarded his Pick- Up as passengers. The P.Ws, had also not charged them for the commission of any offence. The plea of the appellant that confession was extracted from him through coercion is not supported by any evidence. Neither at the stage of investigation nor during trial the appellant had made any application to the higher authorities complaining that he was forced by the Investigating Officer to make the confession. In his confessional statement he had admitted that the arms, ammunition and explosive substance was loaded in his Pickup by one Baseer Khan of Mir Ali and that he (appellant) had brought the same from Mir Ali to Bannu.
11. As per evidence produced by the prosecution the guilt of the appellant was proved beyond doubt, therefore, he was rightly convicted and sentenced by the learned trial Court. The impugned judgment is not suffering from any infirmity calling for interference by this Court. The conviction and sentence of the appellant are, therefore, maintained and his appeal is dismissed.