Appellant Shah Nawaz, alongwith co-accused Rab Nawaz and Diyar Khan residents of Mohallah Alladad Khel, Nali Par Hoti, Mardan, was tried under. Section 13 of the West Pakistan Arms Ordinance (XX of 1965), by learned Additional Sessions Judge, Mardan. The appellant was convicted under Section 13 of the Ordinance (ibid) and sentenced to suffer three years' R.I. and a fine of. Rs. 20,000 or in default whereof to undergo six months' S.T. Benefit admissible under Section 382-B, Cr.P.C. was, however, accorded to the appellant. Through the same judgment, learned trial Judge had acquitted the above said co-accused, by extending them the benefit of doubt.
2. Appellant Shah Nawaz, feeling aggrieved, has challenged his conviction and sentence by filing instant Criminal Appeal 437 of 2006, which is before me for consideration.
3. Succinctly Stated the facts leading to the filing of this appeal are, that pursuant to spy information stated to have been received by S.S.P. Mardan, that proclaimed offenders Shah Nawaz and Rab Nawaz alias Rabi, sons of Janas Khan, required by the local police in a number of criminal cases, detailed in the F.I.R.,' were present in the house of Shah Nawaz, a police party headed by Farid Hussain Bangash, D.S.P. City, raided the house on 17-11-2005 at about 1600 hours and arrested Shah Nawaz, Rab Nawaz and Diyar Khan. A kalashnikov No. 66-56.1 No. 19026416 with 110 live rounds and 3 spare chargers and one hand. grenade, from the possession of Shah Nawaz, a kalashnikov No. 66- 56.114014623 loaded with 30 cartridges of 7.62 bore, from the possession of Rab Nawaz and a .30 bore pistol No. MAC-39086 alongwith 16 live rounds and a spare charger, from possession of Diyar Khan were recovered. The accused were arrested and a case was registered against them under Section 13 of the West Pakistan. Arms Ordinance (XX of 1965), read with Sections 4/5 of the Explosive Substances Act (XI of 1908), vide F.I.R. No. 1161, dated 17-11-2005, Police Station Par Hoti, Mardan.
4. After complying the legal formalities, the Investigating Officer submitted complete challan before the trial Court, where prosecution produced three witnesses, namely, Saleem Dad Khan, S.H.O. (P.W.1), Sher Aman A.S.-I. (P.W.2) and Qaim Shah Khan, S.-I. (P.W.3). The accused and co- accused in their statements under Section 342, Cr.P.C. denied the prosecution allegations and Claimed to have been falsely charged. They neither opted to appear as their own witnesses under Section 340(2)., Cr.P.C. nor produced any defence evidence.
5. At the conclusion of trial, vide impugned judgment, appellant Shah Nawaz, having been found guilty was convicted and sentenced as mentioned above, whereas co-accused Rab Nawaz and Diyar Khan, were acquitted of the charge for want of evidence.
6. Appearing on behalf of the appellant, Mr. Arif Rasool, Advocate contended with force that except the bare allegation in the F.I.R., there is nothing incriminating on the record, which could connect the appellant with the commission of crime; that the statements of the P.Ws. are contradictory, inter se, and highly doubtful; that the mode of the recovery as shown by the prosecution without association of any public witness is also not beyond doubt; that mandatory provisions of Section 103, Cr.P.C. have been seriously violated and that the case of the prosecution is not corroborated by independent and impartial evidence. Additionally he urged that on, the same set of evidence, two of the co-accused were acquitted, whereas. the appellant was treated differently, which renders the impugned judgment invalid in the eyes of law. In support of the arguments, reliance was placed on Muhammad Parvaiz v. The State 2005 SCM R 1038 and Abdul Sattar and others v. The State 2002 PCr.LJ 51 (Karachi).
7. Miss Neelam Khan, Advocate representing the State, refuted the arguments of the learned counsel for the appellant and supporting the judgment of the trial Court submitted that prosecution has proved its case beyond any shadow of doubt and the impugned judgment of conviction does not suffer from any irffirmity or irregularity to vitiate the trial. The learned counsel reiterated that recovery of ammunitions, mentioned above, has been proved by the prosecution witnesses, statements of whom could not be shattered by the defence in spite of lengthy and searching cross-examination. She contended that the appellant has not been able to point out any material discrepancies and contradictions in the statements of the P.Ws., which could shatter the prosecution story.
8. I have heard at length the arguments of learned counsel for the parties, with reference.to the material on record.
9. It stands established from the evidence on record that on receipt of authentic information, a police party consisting of senior police officials was constituted. The party raided the house of the appellant, apprehended him from the spot and recovered a kalashnikov with live rounds and spare chargers from his possession. The prosecution in order to prove the factum of apprehension of the appellant and recovery of kalashnikov etc. from his possession has produced S.H.O. Saleem Dad Khan (P.W.1), A.S.-I, Sher Aman (P.W.2) and S.-I. Qaim Shah Khan (P.W.3). The witnesses have demonstrated complete unanimity on material points and the appellant has failed to point out any discrepancy in their statements. Contradictions highlighted by the learned counsel for the appellant are minor in nature, on the basis of 'which it cannot be A held that the trial of the case stood vitiated. It is true that prosecution witnesses are officials of police but it is equally true that they have no reason or motivation to falsely implicate the appellant.
10.The acquittal of co-accused does not detract the credibility of the prosecution witnesses. The co-accused have earned a finding of acquittal for valid reasons, which are not questionable.
11. The learned counsel for the appellant contended that there were some serious lapses in the process of investigation, which had vitiated the trial. However, he was not been able to point out any so-called serious defects in the investigation, other than certain minor lapses which do not affect the validity of the trial.
12. In view of the above, I agree with the conclusion of the trial Court and do not find serious defed with the evidence adduced against the appellant. I see no illegality or infirmity in the impugned judgment and maintain the same. The appeal fails, which is. hereby dismissed.