' JUSTICE RASHID AZIZ KHAN (MEMBER)---Muhammad Mansha was sent up by Police Station Batapur, District Lahore, for trial for an offence under section 7 (1) (b), Surrender of Illicit Arms Ordinance, 1991. Special Court for Speedy Trials-II, Lahore, vide its judgment dated 24-10-1991 convicted and sentenced him to ten years' R I. The convict has appealed. This judgment shall dispose of the same.
2. Prosecution story in brief, as disclosed in complaint Exh. PB/1 by Muhammad Feroz, Inspector Anti-Dacoity Staff, was to the effect that on 13-9-1991 at about 6-55 a.m. He alongwith other Police Officials was holding a Nakabandi at Bridge Khera, within the jurisdiction of Police Station Batapur, for arrest of proclaimed offenders. In the meanwhile, a Toyota Corolla Car bearing No 234-191 Karachi cam, which was stopped. On checking, appellant Muhammad Mansha, who was sitting in the rear seat of the car, was found in possession of a stengun .30 bore with 10 live bullets. He could not produce any licence for the said stengun. Two other persons were also in the car, from whom a Kalashnikov and hand grenade were recovered. All of them could not produce licences, therefore, they were separately challaned.
' Muhammad Feroze, Inspector took into possession stengun P-1 alongwith 10 bullets P/2-1-10 vide recovery memo. Exh. PA signed by Atif Hayat, Inspector, and Shah Muhammad, SI, PWs. 1 and 2 respectively. After usual investigation, the accused was challaned and charge against him was framed on 19-10-1991 under section 7 (1) (b) of Surrender of Illicit Arms Ordinance, 1991:
3. The prosecution in order to establish its case produced three witnesses. Atif Hayat, Inspector, P.W.1 stated that he had joined the Nakabandi. In his presence Toyota Corrolla Car was stopped and unlicensed stengun P-1 with 10 live bullets P 2/1-10 was recovered. He signed the recovery memo. In cross-examination, he admitted that at the relevant time no witness from public was present. He refuted the suggestion that the stengun P-1 was not in working order. Shah Muhammad, SI, P.W. 2 was also member of the Nakabandi party. In his presence, the appellant's car was stopped and unlicensed stengun P-1 with ten live bullets P 2/1-10 was secured. The recovery memo. Was prepared at the spot, which he signed. In cross-examination, he refuted the suggestion that the stengun was not in a working condition. Muhammas Tariq, A.S.I., P.W. 3 stated that on 13-9-1991, he was working as moharrir. He received complaint Exh. PB, on the basis of which he recorded formal F.I.R. Exh. PB/1. He also identified the handwriting and signatures of Muhammad Feroze, Inspector.
' At the conclusion of the prosecution .Evidence, the appellant was examined without oath as well as he made his statement on oath. He refuted the prosecution allegations and pleaded innocence.
The appellant also produced four witnesses in his defence.
4. Learned counsel for the appellant contended that the conviction could not be sustained because the charge was defective. Argued that there was nothing on record to indicate that the appellant was required to surrener unlicensed arms, because according to section 4 of Ordinance XX of 1991 all persons were required to surrender illicit arms by such time as would be notified by the. Federal Government. Since the period during which illicit arms was supposed to be surrendered was not brought on record, therefore, the charge was defective. Argued that the appellant was not put any question in his statement that he failed to surrender the illicit arms, therefore, the same cannot be used against him. Argued that Muhammad Feroze Inspector did not appear, therefore, neither the complainant nor the recovery memo. Was validly proved. They could be proved by secondary evidence unless some evidence had come on record indicating that the said Inspector was not available. The contentions were controverted by learned counsel for the State.
5. We have heard the learned counsel and gone through the evidence. As far as the contention that Muhammad Feroze, Inspector did not appear, therefore, the recovery memo could not be proved which was the only evidence against the appellant is concerned, is without force. P.W. 1 and 2 Atif Hayat, Inspector, and Shah Muhammad, Sub-Inspector had signed the recovey memos. They were also eye-witnesses of the whole proceedings. The memo. Was prepared in their presence.
They have identified his signatures on the memo. By giving an ocular account of the occurrence. In these circumstances, we feel even if Muhammad Feroze, Inspector did not appear, it would not adversely affect the prosecution case.
' The other contention of the learned counsel that nothing was brought on record to show that the appellant was required to surrender illicit arms by a certain period is also without force because learned counsel for the State produced a Notification by virtue of which every body was requierd to surrender illicit arms within six days of the issuance of the notification. The notification was issued on 9-7-1991, whereas the occurrence took place on 13-9-1991. In these circumstances, even if it was not specifically mentioned in the charge, it cannot possibly prejudice the case of the appellant because he knew it all along for the offence he was being tried. Even otherwise, when a charge is framed under section 7 of Ordinance XX of 1991, it presupposes that the-accused was in possession of illicit arms. Learned counsel for the State has also relied upon section 537, Cr. P.C., according to which even if there was any defect in the charge, it would not vitiate the proceedings. Reliance was placed on Muhammad Aslam v. The State (1991 SCMR 961) and Taheruddin Chaudhry and 3 others (PLD 1958 SC (Pak.) 76). This also disposes of the contention of the learned counsel for the appellant that no question to the appellant was put in his statement under section 342, Cr.P.C. To the effect that he failed to surrender the unlicensed stengun. As we have already held that the charge under section 7(i) (b) of Ordinance XX of 1991 presupposes retaining of illicit arms, therefore it was not necessary to put the same question.
' As far as the merits of the case are concerned, the prosecution has produced two witnesses Atif Hayat, Inspector, and Shah Muhammad, SI, P.Ws.1 and 2, respectively. Both of them deposed that when a Toyota Car, being drived by Ejaz, co-accused of the appellant, was stopped, the appellant was found in possession of a stengun . On demand he could not produce any licence. Both the witnesses were cross-examinded. No enmity or ill-will was suggested to them. It was also not suggested that no Nakabandi had taken place or pleaded not present. The trend of cross- examination further suggests that the recovery of unlicensed stengun is accepted because both the witnesses were suggested that the stengun P-1 recovered at the instance of the appellant was not in a working condition. In these circumstances, we hold both the witnesses are reliable and confidence inspiring, therefore, can safely be relied upon.
For what has been discussed above, we hold the prosecution has been able to prove its case beyond doubt. Therefore, the appeal is dismissed. The sentence awarded by the trial Court is maintained.