MUHAMMAD AMIR MALIK, J.- Special Court constituted under Suppression of Terrorist Activities (Special Courts) Act, 1975, Gujranwala Division, Gujranwala presided over by Kh. Mahmood Ahmad, tried the appellant for an offence under Section 13 of the Arms Ordinance, 1965 being in possession of a sten-gun with four live bullets, convicted and sentenced to 7 years R.I. And a fine of Rs.10.000/- or in default thereof one year's further R.I., vide judgment dated 10.6.1990. He has appealed.
2. Muhammad Younis, AS1 of Police Station Model Town, Gujranwala (P.W.4) was present in front of Khawaja Motors, Lari Adda, G.T. Road, Gujranwala at about 3.50 p.m. On 20.3.90. There Barkat Ali, Muhammad Tufail(P.Ws. 1&2) and Amanullah (given up P.W.) produced Asif Waheed appellant alongwith the stengun and the bullets (P.I & P.2/1-4) which they had recovered from the possession of the appellant. He secured the weapon vide memo. (Ex.PA for which the appellant had no licence.
He drafted complaint (Ex.PB) and sent it to the Police Station for registration of the F.I.R. He had also recorded a complaint on the statement of Barkat Ali, P.W. For an offence under Section 307 PPC against the appellant on the very day.
3. At the trial Barkat Ali, Muhammad Tufail, Qadeer Hussain, S.I. And Muhammad Younas, AS1 (P.Ws. 1 to 4) were produced to support the charge against the appellant.
4. At the close of the trial, in his statement under Section 342 Cr.P.C., the appellant when asked "Why this case against you and why the witnesses have deposed against you?" replied:- "I was going on Motor-cycle and when I passed near Barkat Ali P.W. And his 3 companions, I saw that they were accompanied by 2 ladies as well. Barkat Ali and others suspected that I had cut indecent remarks on these ladies. Suspecting this they gave me severe beatings and the Police came there in the meantime and many persons assembled there. This incident took place near Lorri Adda and the Police came there after half an hour. I was then taken to the Police Station and was involved falsely in this case and concocted story with malafide intention in connivance with the Police." He made statement on oath as well supporting his plea and produced Shahid Hussain (D. W.l).
5. Barkat Ali (PW.1) deposed that on 153.1990 while going to Agriculture Bank at Gujranwala to pay his instalment of tractor (loan) and was having Rs.8100/- reached near Civil Hospital at about 11.00 a.m. Where the appellant alongwith another person came across him on a scooter and asked him to sit with them as they were going to the Bank. During conversation he told them that he belonged to village Papnakha which was near village Hardopur and the appellant told him that Siddiq Lohar of village Hardopur was his brother-in-law and that he should take a letter from them to deliver to Siddiq. During this conversation his pocket was picked and the amount of Rs.8100/- taken away. He was dropped at the Bank and there he found that his pocket had been picked and cash was missing. The appellant and his companion were not known to him and so he went back to his home and told his family what had happened to him. He goes on to inform that Muhammad Tufail, Amanullah and Muhammad Hanif, the residents of his village accompanied him to Gujranwala and they searched for the appellant and his companion for three days. Ultimately, on 20.3.1990 they spotted the appellant and his companion going on a motor-cycle near Bus-Stand, he recognised the appellant, told Muhammad Tufail about the culprits who approached the appellant and his companion and requested him (the appellant) to take him towards the Lorri Adda. In the meantime Muhammad Tufail caught hold of the key of the scooter and stopped it. He (Barkat Ali), Muhammad Hanif and Amanullah also reached the appellant and on becoming cognizant of the fact that he (the appellant) had been identified by him (the complainant Barkat Ali), the appellant brought out his stengun from his person which was not earlier visible and his companion took out a pistol. The appellant and his companion tried to push their ir )tor-cycle in the nearby lane, they lost the grip, the companion ran away while > ie appellant fired 23 shots, luckily none was injured. Tufail P.W., an Army man was having a licenced weapon with him. They were able to overpower the appellant alongwith the stengun and he was produced before the police alongwith the Scooter.
Tufail stated that the complainant was his paternal uncle and he himself was serving in the Army at Kharian Cantt. He also told that he was on two months leave. He then corroborated Barkat Ali as to how they had been searching for the persons who had picked the pocket of Barkat Ali and how the appellant was apprehended and his companion ran away. Both these witnesses were suggested that they (Amanullah and Muhammad Hanif) while going with two ladies on 20.3.90 had suspected that the appellant had teased their ladies, so they gave him severe beating and falsely implicated in the case. They, of course, denied the suggestion in this respect. Qadeer Hussain (P.W3) had recorded the formal F.I.R. Barkat Ali and Tufail are corroborated by Muhammad Younis, AS1 (P.W.4) to whom the appellant alongwith the stengun was produced and he recorded one statement for an offence under Section 307 PPC and the other with respect to the present case made by Barkat Ali P.W. In cross-examination he told that first case was registered against the appellant under Section 307 PPC and the second i.e. The present as well on his statement. He also told that he had checked the stengun which was produced before him and he felt the smell of gun powder from its barrel though no crime empty was recovered from the spot. He also stated that on visiting the spot he had made inquiries from Khawaja Muhammad Afzal, Khawaja Khurshid and some other shopkeepers from near the place of occurrence who supported the case. According to him the appellant had no visible marks of injury when produced before him though it seemed that he had been given kick and fist blows. He also stated that Barkat Ali and the other P.Ws, were not accompanied by any ladies. In a statement on oath the appellant deposed that he was driving a private car as taxi since 13 years. He also admitted that a case under Section 307 PPC had also been registered against him. Shahid Hussain(D. W.1) is also a driver on a taxi car. He claims to have visited the Police Station on few occasions when he came to know about the registration of the present case. He denied that being a worker of a Union(Labour Union formed by the taxi drivers) he had made false statement to support the appellant.
6. From the statements of Barkat Ali and Tufail read with the statement of the appellant himself it is more than clear that on the day the appellant was apprehended alongwith the stengun and produced before the police they (the witnesses) alongwith two other persons were present at the Bus-Stand and it was there that he was apprehended and produced before the police. Previous to this date there does not seem to be any enmity or ill will between the P.Ws, or the appellant. Had the P.Ws, suspected that their ladies had been insulted, the severe beating as claimed by the appellant would have sufficed to satisfy their anger. It does not seem that the P.Ws, are so well- placed in life that just over the Bus- Stand they were able to prevail upon the police to cook up not only one but two cases and also been able to produce a stengun to be planted upon the appellant.
The witnesses being independent and disinterested, they are believable and were correctly relied upon by the learned trial Judge while there seems to be no force in the defence plea.
7. Learned counsel also tried to argue that the offence under the Arms Ordinance had been made scheduled offence under the Ordinance which had lapsed and so the trial Judge had no jurisdiction in the matter. Suppression of Terrorist Activities (Special Courts) (Amendment)
Ordinance, 1990 had come into force with effect from 17.3.1990. The offence of keeping a stengun was a scheduled offence under the Amending Ordinance at the time the case was registered against the appellant and so it cannot be said that the trial Court had no jurisdiction. The contention is rejected.
8. The upshot is that the appeal against conviction fails and is hereby dismissed. However, maintaining the sentence of 7 years R.I. We reduce the sentence of fine to an amount of Rs.1,000/- or in default thereof four months R.I.