ABDUL MOBEEN LAKHO, J.--- Najeebullah, and Mohid Khan appellants were tried by learned Anti- Terrorism Court No. IV, Karachi in Special Cases Nos. 51, 51-A, 52 and 52-A of 2020 (arising out of FIR No.49/2020 under Sections 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997, FIR No. 50/2020 under Section 23(1)(a) of Sindh Arms Act 2013, FIR No. 51/2020 under Section 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997 and FIR No. 52/2020 under Section 23(1)(a) of Sindh Arms Act, 2013, lodged at Police Station Mobina Town, Karachi). On the conclusion of the trial, vide judgment dated 28.10.2020, appellants were convicted and sentenced as under: Accused Najeebullah son of Nasrullah and Mohid Khan son of Muhammad Iqbal found guilty of the charges of offence under section 5 of Explosive Substances Act, 1908. They are convicted and sentenced to suffer imprisonment for three years, each.
Accused Najeebullah son of Nasrullah and Mohid Khan son of Muhammad Iqbal found guilty of the charges of offence punishable under section 23(1)(a) of Sindh Arms Act, 2013, are convicted and sentenced to imprisonment for three years, each with a fine of Rs.5000/- (Rupees Five thousand), each, in case of default in payment of fine, they shall further suffer imprisonment for one month.
All the sentences were ordered to run concurrently and appellants were extended benefit of Section 382-B, Cr.P.C.
2. Brief facts leading to the filing of the appeals are that ASI Inayatullah along with his subordinate staff was on patrolling on 25.01.2020. During patrolling ASI Inayatullah found a suspected Suzuki Cultus bearing Registration No. AJM-814 of silver colour, parked at Jhangvi road, Khatam-e- Nabuwat Chowk, near the boundary wall of Karachi University, opposite County Garden, Scheme No.33, Gulzar-e-Hajri, Karachi. ASI encircled the car and apprehended two persons, who disclosed their names as Najeebullah and Mohid Khan.
(1) From the personal search of the accused Najeebullah police recovered one hand grenade from his right side pocket wrapped in an envelope, one .30 bore pistol rubbed number from the fold of his shalwar, four mobiles, and some cash.
(2) From the personal search of the accused Mohid Khan police recovered one hand grenade from his right side pocket wrapped in an envelope, one .30 bore pistol with 02 live bullets, one mobile, watch, and some cash.
Weapons and other articles were sealed whereas hand grenades were made safe in presence of mashirs. Car was seized under Section 550, Cr.P.C. BDU was called for defusing the explosive.
Thereafter, accused and case property were brought at police station where, FIR No.49/2020 under Sections 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997, FIR No. 50/ 2020 under Section 23(1)(a) of Sindh Arms Act, 2013, FIR No. 51/2020 under Sections. 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997 and FIR No. 52/2020 under Section 23(1)(a) of Sindh Arms Act, 2013 were lodged at Police Station Mobina Town, Karachi, against both the accused on behalf of State.
3. After usual investigation, Challan was submitted against accused under the above referred sections.
4. Learned Trial Court amalgamated the aforesaid cases for a joint trial, in terms of Section 21-M of Anti-Terrorism Act, 1997.
5. Upon indictment, the accused pleaded not guilty and claimed trial.
6. In order to substantiate the charge, the prosecution examined four witnesses, who produced documents which had been exhibited, and thereafter the learned prosecutor closed the side of the prosecution vide statement at Ex.09.
7. Trial Court recorded statements of accused under section 342, Cr.P.C. at Exs. 11 and 12. Accused claimed their false implication and denied the prosecution allegations. Accused neither examined themselves on oath as required under Section 340(2), Cr.P.C., nor examined any witness in their defence.
8. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 28.10.2020, convicted and sentenced the appellants as stated above. Being aggrieved and dissatisfied, the appellants have preferred captioned appeals. By this common judgment, we intend to dispose of the same.
9. Learned counsel for the appellants submitted that the learned trial court erred in law as well as in facts, in convicting the appellants; that the learned trial court did not appreciate the evidence according to settled principles of law as the same is not sufficient for passing the impugned judgment and liable to be set-aside; that , the place from where the alleged recovery of arms and ammunition have been effected was thickly populated area, but no independent person has been associated by the police to witness the arrest and recovery; that there was difference in the color of the hand grenades as in the mashirnama of arrest and recovery, its color was grey whereas in the Inspection report of hand grenade issued by BDU, the color of hand grenades was mentioned as brown; that there are material contradictions in the evidence of prosecution witnesses which the learned trial court has failed to appreciate; that prosecution evidence was inconsistent, conflicting, fabricated and false hence could not be relied upon as such the prosecution had miserably failed to establish any case against the appellants, therefore, prayed for acquittal of the appellants.
10. On the other hand the learned Additional P.G. for the State while supporting the impugned judgment has argued that the learned trial Court rightly appreciated the evidence of the prosecution witnesses, whose evidence was cogent and confidence-inspiring and therefore the appeals merit dismissal.
11. We have heard learned counsel for the parties and have meticulously gone through the entire record.
12. ASI Inayatullah (PW-01) on 26.01.2020 at 0145 hours, while patrolling, suspected a car, wherein two persons were sitting. On inquiry, they disclosed their names as Najeebullah and Moid Khan.
Upon their personal search, ASI recovered two hand grenades, two .30 bore pistols, mobiles, and cash from the possession of both the accused in presence of mashirs and prepared such memo. of arrest and recovery. Car was also seized under Section 550, Cr.P.C. Accused and case property were brought at Police station, where four FIRs were registered against the accused. In cross- examination, he denied the suggestion that nothing was " recovered from the possession of appellants.
13. Abid Farooq of BDU (PW-02) stated that on 26.01.2020, after receiving directions, he reached Police Station Mobina Town at 1600 hours where ASI Sikandar Ali handed him over the hand grenade of Crime No. 49/2020. It was MI along with the detonator. FGM-39 on the outer surface and 56-88-452 on the inner side were found engraved. He made it safe, sealed the same, and issued Clearance Certificate. He was also handed over the hand grenade of Crime No.51/2020, it was RGD-1 along with detonating assembly and detonator. On its lever "FGM5240" and on the inner side "56-88-452" were engraved. He also made it safe, sealed, and issued Clearance Certificate. In cross-examination, he denied the suggestion that he had not inspected the hand grenades and issued a report on the instance of his high-ups.
14. PC Muhammad Afrasiab (PW-03) who was present at the time of search of the appellants by.
PW-1. He corroborated PW-01 in almost all respects and like PW-01 he was not damaged on cross- examination let alone shattered.
15. Inspector Zaheer Hussain (PW-04) who was the Investigation Officer, visited the place of the incident on the pointation of the complainant, prepared such site plan, recorded 161, Cr.P.C. statements of witnesses. I.O. handed over the case property to ASI Sikandar. On 27.01.2020, pistols and bullets were sent to FSL and received a positive report. I.O. also checked the seized car from CPLC and it was informed that fake number plate bearing Registration No. AJM-814 was affixed, whereas the original Registration number of the said car was AUB-244. I.O. sent a letter to the Incharge Excise and Taxation Department for blocking of registration file of car recovered from the accused. I.O. also received final inspection report of hand grenades from BDU. After completing formalities, I.O. submitted challan against the accused before the Court.
16. As regards to the contention of learned counsel for the appellants that no private person was associated as mashir to witness the arrest and recovery is concerned, in our humble view, such contention has no force as the complainant in his evidence has clearly stated that it was night time i.e. 0145: hours and due to such odd hours of the night, none was present there. With regard to the contention of the Learned counsel for the appellants that there was a discrepancy in the colour of the hand grenades. We have gone through the record and found that the description of the hand grenades was available in the mashirnama of arrest and recovery and the same matched with the Clearance Certificates issued by the BDU, so also detailed reports of BDU are also in line with the prosecution case. Even otherwise a mere discrepancy in the colour of hand grenades is not fatal to the prosecution case especially when the recovery was effected from the accused at the odd hours of the night. Learned counsel for the appellants then attempted to argue that safe custody of the explosive and pistols has not been proved by the prosecution. We have perused the Examination Reports of FSL produced at Exs. 8/G and 8/H respectively, wherein it was reported that sealed parcels were received on which seals were intact. There is nothing on record to establish that, the said parcels ever tampered with rather the evidence led by the prosecution established that the parcels received by the said agency, remained intact. perusal of record reflects that in their statements recorded under Section 342, Cr.P.C., the appellants claimed that they were falsely implicated in the instant case, however, they have not produced any witness in support of their contention and even no application to higher authorities or any Constitutional Petition was filed by anyone for the release of the appellants, which suggests that the appellants managed a false story to save their skin.
17. It is true that there are some minor discrepancies/inconsistencies in the evidence of the PW's however in our view none of these discrepancies/ inconsistencies are of a material nature, so as to effect the outcome of the case and as such can be overlooked. Reliance is placed on the case of Zakir Khan and others v. The State (1995 SCMR 1793) wherein it was held as under:- "The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor dis-crepancies found in the evidence of witnesses, which generally occur, are to be overlooked."
18. It is well settled principle of law that the Police officials are as good as private witnesses and their testimony could not be discarded merely for the reason that they are police officials unless the defense succeeds in giving dent to the statements of prosecution/police witnesses and prove their mala fide or against accused. It is a matter of record that no suggestion against the police officials of enmity or was made during cross-examination nor any application or petition was filed before any forum to prove false implication of the appellants in the present case. Thus, we rely on the evidence of the police PW's which we regard as reliable, trustworthy and confidence inspiring and have no reason to doubt.
19. The recovery of hand grenades, .30 bore pistols, and live bullets are proven by the prosecution by producing confidence-inspiring and trustworthy evidence supported by the BDU reports so also report of FSL. In effect the accused were caught red handed and even the car they were in was recovered which had fake number plates. Thus, we find that the evidence of the prosecution witnesses is corroborative, reliable, and trustworthy and contains only a few minor inconsistencies, which have no effect on the outcome of the case, and that the learned trial Judge has rightly appreciated and assessed the evidence.
20. After evaluating the evidence available on record, we are of the view that findings of guilt rendered by the learned trial Court against the appellants do not suffer from any infirmity, therefore, the impugned judgment is upheld and the convictions and sentences awarded by the trial Court to the appellants are hereby maintained and appeals are dismissed.