' MUHAMMAD ALAM KHAN, J.--- This is an appeal against conviction and sentences filed under section 25(i) of Anti-Terrorism Act, 1997 by the convict/appellants, namely, Sikandar Khan son of Umer Khan and Muhammad Mohsin son of Zahoor-ud-Din, against the judgment, dated 4-12-2008 passed by the learned Judge, Anti-Terrorism Court, D.I. Khan, whereby the appellants have been convicted under sections 324/148/149, P.P.C. Read with section 9(b) of the Act (ibid) and sentenced each of them to undergo five years rigorous imprisonment. They have further been convicted under sections 353/148/149, P.P.C. Read with section 7(b) of the aforesaid Act and sentenced to undergo two years rigorous imprisonment each. Each of them also stands convicted under section 22 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sentenced to suffer three years' rigorous imprisonment. Both the appellants also stand convicted under section 13, Arms. Ordinance and sentenced to undergo two years' rigorous imprisonment and to pay fine of Rs, twenty thousands each, in default to suffer three months simple imprisonment each. All the sentences have been ordered to run concurrently and benefit under section 382-B, Cr.P.C. Has been extended to both the appellants, vide case F.I.R. No,132 dated 11-6-2008 of Police Station Yarik, Tehsil and District D.I. Khan, registered under sections 324/353/148/149, P.P.C., read with section 22 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, section 7 of the Anti- Terrorism Act and section 13, Arms Ordinance, 1965.
2. Briefly narrated facts of the case are that on the eventful day and time, the complainant Zumrud Hussain S.H.O. Of Police Station Yarik along with police party while on Gusht was present in the official pickup at the turn of "Sadra Sharif" when in the meanwhile a Bus bearing No,4677/Peshawar-P coming from Dera side crossed their mobile vehicle and all of a sudden went on the link road towards Sadra Sharif which on suspicion was followed and some distance the bus was stopped. Five persons duly armed came down therefrom and ran towards "Gillotti" who when followed effectively fired at them. On call of the complainant, other police contingents of various police stations reached the spot and made "Nakabandi". Of them, accused Sikandar son of Umer Khan armed with a kalashnikov and Mohsin son of Zahoor-ud-Din armed with .303 bore rifle were arrested near "Gillotti" while the remaining three succeeded in decamping from the spot. During preliminary investigation, they arrested two accused/convict-appellants who disclosed the names of their co-accused as Hameedullah son of Sher Zaman, Zahir son of Hidayatullah and Khaid son of Zar Khan. The instant case was thus, registered against all the five accused named above.
3. After completion of investigation, challan was put in Court against the arrested accused and provisions of section 265-C, Cr.P.C. Were complied with. They were formally charge-sheeted on 5- 8-2008 to which they did not plead guilty and claimed trial.
4. In order to prove its case against the accused, the prosecution produced and examined seven witnesses whereafter the Public Prosecutor closed the prosecution evidence. After conclusion of the trial, statements of the accused were recorded under section 342, Cr.P.C. Wherein they totally refuted the allegations levelled against them and professed innocence. However, they neither appeared as their own witnesses nor recorded their statements on oath in terms of section 340(2), Cr.P.C. Nor produced any defence evidence. The learned trial Judge after evaluating the materials brought on record and hearing the arguments of the learned counsel for the parties pro and contra found both the accused guilty of the offence charged with and thus, on conviction sentenced them as mentioned above. Hence the instant appeal by the convict/appellants.
5. Mr. Allah Nawaz Khan, learned counsel for the appellants submitted that the prosecution has not been able to prove the case against the convict/appellants as no independent and disinterested witness has been produced by the prosecution. It was also submitted that neither the driver of the bus nor the conductor has been produced in support of the prosecution case. The learned counsel lastly submitted that allegedly encounter took place between the convict/appellants and the police party for long time, but strange enough no casualty occurred during the encounter. Reliance in this respect was placed on the case of Abdul Rashid and others v. The State reported in 1994 PCr.LJ 186 and on dictum rendered in the case of Hamid-ur-Rahman v. Said Rahman and 5 others 2005 PCr.LJ page 53.
6. On the other hand, Mr. Sanaullah Khan Shamim Gandapur, learned Deputy Advocate-General appearing for the State supported the impugned judgment and submitted that the accused after committing the robbery had an encounter with the police for sufficient time and they were arrested on the spot duly armed, while other three accused had decamped from the spot who are still absconders.
7. We have carefully scrutinized entire record of the case with the valuable assistance of the learned counsel for the parties and anxiously considered the arguments advanced at the Bar.
8. Perusal of the record reveals that the prosecution had been able to prove its case against the convict/appellants beyond any shadow of A reasonable doubt and thus, the learned trial Judge has rightly appraised the evidence brought on record.
9. The case of the prosecution is that on the report of Zamrud Hussain S.H.O. (P.W.5) of Police Station Yarik in the shape of Murasila (Exh.P.A./1), case F.I.R. (Exh.P.A.) was registered, according to his version the accused/appellants were apprehended red-handed duly armed with deadly weapons by A.S.-I. Karim Bakhsh during an encounter near Village Gillotti when they were trying to flee away after coming down from the bus referred to above. The recovery of arms and ammunitions were made from their possession which was duly witnessed by P.W.1 Muhammad Nawaz Khan, A.S.-I. Marginal witness of the recovery who has fully supported the case of the prosecution. All the P.Ws. Have faced the test of lengthy cross-examinations by the defence but nothing favourable to the accused/appellants had come out from their mouths and thus, the defence had failed to shatter the case of the prosecution. The prosecution witnesses are all unanimous on all material points. Appellant Muhammad Mohsin had resisted his arrest and during the scuffle between the police party and the accused, he had sustained injuries vide medical report of Doctor Rashid Ahmad Khan, Medical Officer (P.W.6), who had examined the said accused/appellant on 11-6-2008 at 1-00 p.m. Whose medico-legal report is Exh.P.W.6/1 which also supports the case of the prosecution. Both the accused/appellants and their absconding co- accused had attempted to commit robbery and to loot the passengers sitting inside the bus by turning the same forcibly towards the link road of "Saddra Sharif" and they had created terror and panic in the whole surrounding area. Empties have been recovered during the spot inspection by Karim Bakhsh Sub-Inspector who prepared the site plan (Exh.P.B.) on the pointation of Zumrud Hussain S.H.O. Who has furnished ocular account of the occurrence and sent the same to Forensic Science Laboratory for analysis and its report (Exh.P.W.7/5) is in positive, as it shows that the said empties were of the same weapons recovered from the possession of the convict/appellants. The convict/ appellants had failed to produce any documentary proof with regard to the recovered arms and ammunitions. The case-law cited by the learned counsel for the appellants have got no nexus with the facts of the instant case and are distinguishable.
10. From the materials brought on record, the convict/appellants were reasonably linked with the commission of the offence charged with and the impugned judgment of the learned trial Judge is based on correct legal footings and correct appraisal of evidence which cannot be set at naught by this Court.
11. Learned counsel for the appellants failed to point out any illegality, irregularity, misreading or non-reading of evidence so as to create a dent in the case of the prosecution, or legal infirmity, perversity in the impugned judgment of conviction which is accordingly maintained.
12. Consequently, we find no substance in this appeal which stands dismissed accordingly.