' JAWAID NAWAZ KHAN GANDAPUR, J.--- On 10-9-1995 the police party headed by Mr. Asmatullah, I.H.C., Police Station, Thall (P.W.1) was on Gasht of the Ilaqa. At about 11-15 hours a Flying Couah coming from Miran Shah side was stopped by it for checking purposes. The appellant, Bahishti Khan, armed with a rifle (7.62 bore), sitting in the said vehicle was deboarded. On demand he failed to produce any licence/permit to show that he was in lawful possession of the same. He was accordingly apprehended: The rifle alongwith magazine containing 25 rounds, was taken into possession vide Recovery memo. Exh.P.C. The Murasila (Exh.P.A./1) was scribed which was despatched to the police station where F.I.R. (Exh.P.A.) was registered on its basis.
2. After conducting the usual police investigation complete challan against the appellant was submitted in the trial Court. In order to prove its case the prosecution produced as many as three P.
Ws. The statement of the appellant was recorded under section 342, Cr.P.C. Wherein he stated that he was innocent and falsely charged. He refused to be examined as his own witness and to produce any evidence in his defence.
3. After the conclusion of the trial the appellant was found guilty and thus convicted under section 13, Arms Ordinance and sentenced to undergo 3 years' R.I. He was also sentenced to pay a fine of Rs,5,000 or in default thereof to undergo further R.I. For 6 months. Case property was confiscated in favour of the State.
4. Aggrieved by the said verdict of the trial Court, the appellant-accused has come to this Court for the redress of his grievance by filing this appeal.
5. Mr. Saeed Baig, Advocate, learned counsel for the appellant and Mr. Suhail Akhtar, Advocate, learned counsel for the State present and heard. Record of the case perused.
6. According to the learned counsel for the appellant, the appellant was innocent and had been falsely implicated in the present case. He further contended that it was for this reason that no independent witness was produced though, according to the prosecution, quite a few persons were available at the time of the recovery. He submitted that in the circumstances the police party had violated the mandatory provisions of section 103, Cr.P.C. And, therefore, the recovery was illegal and could not be made the basis of conviction. The learned counsel for the appellant, therefore, prayed that by accepting this appeal the judgment recorded by the Judge, Special Court, Hangu be set aside and that the appellant be acquitted.
7. On the other hand, the learned counsel for the State contended that the question of complying with the provisions of section 103, Cr.P.C. Did not arise in the circumstances of the case because the appellant was found during the time when the police party was on Gasht. He stated that the appellant has failed to bring on record any material to suggest, even remotely, that the police officials had any enmity or ill-will towards him which promoted them to involve him falsely in the present case, He stated that the appeal was without any substance and deserves dismissal.
8. It may be stated at the outset that the fate of this case hinges on the testimony of P.W.
Asmatullah, 1,H,C Police Station Thall. When in the witness-box he stated, on oath, that he headed the police party which was on Oasht of the NA on 10-9-1995. He stated that during the "Oasht" a Plying Coach, on its way from Miran Shah, was stopped for checking the smuggling of Arms. The appellant was found sitting in it duly armed with a klashnikov. He Was deboarded from the Plying Coach and was required to show that he was in lawful possession of the weapon in question by providing valid licence/permit, Since the appellant did not have any licence/permit for keeping the klashnikov, Meteors, lie was arrested, According to him it was he who had prepared recovery memo. Exh,P,C, and took the rifle, alongwith magazine and rounds into his possession, that thereafter he scribed the Iviurasila (Exh,P,A,/l) and sent the same to the police station where the present case registered vide P.I.R. (Eith,P,A,) recorded by P,W,3 Lai Fetid, A,S,-I Police Station, Thal, He further contended that he then carried out the investigation of the case and recorded the statements of the appellant as well as the P.Ws, under motion 161, Cr,P,C,. That the klashnikov and ammunition was also despatched for the Expert opinion, vide his application Exh,P,K., that according to the moult (Exh,P,K,/1) the klashnikov was of foreign origin, He further stated that on completion of the investigation he submitted the case file to the S.H.A. Concerned, 9, P. W;1 was thoroughly cross-examined. However, nothing could be brought on record to suggest that he had any enmity/enmosity or ill-will towards the appellant which prompted him to implicate the appellant in the present case falsely, No reason exists and none indeed has been made out to establish that P,w.1 had planted the klashnikov (an expensive weapon of foreign origin) on the appellant, especially when he had no apparent motive to do so. P.W,1, however, admitted that he had not prepared the site plan and that the Murasila (Exh,P.A,/1) was silent in respect of the name of the A.F.C. Who took the same to the police station for the registration otthe case,
10. Having gone through the testimony of P.W.1, I am of the view that it stands unsheltered.
11, Muhammad Iqbal, No,1400, Police Station, Thall was examined as P.W.2. He stated, on oath, that he had witnessed the recovery memo. (Exh.P.C.) vide which the Investigating Officer (P,W.1) had recovered the kluhnikov along with a magazine, having 25 rounds in it, from the possession of the appellant. According to him the recovery memo. Was correct and was correctly, signed by him, This witness was also cross-examined, In his cross-examination he admitted that no elder from the locality was associated to witness the recovery. In cross-examination he stated that he had signed the recovery memo. As its marginal witness after it was prepared by the Investigating Officer (P.W.1). The contention of the appellant's counsel that P.W.2 was not a truthful witness has no force inasmuch as nothing was brought on record to show that he was a biased witness. The testimony of P.W.2 in the circumstances, cannot be discarded.
12. Lal Farid, A,S,-I, Police Station Tha11 deposed as P,W.3, According to him after the receipt of the Murasila I1tth,P,A/1 he registered the F,I,R, Copy Exh.P.A. Which was correct and correctly bore his signature. In his crow MIAMiltilti011 nothing was brought on record to suggest that he was not a truthful witness, 13, After having gone through the evidence produced by the prosecution, in minute detail, we are of the considered view that the prosecution had proved its ease against the appellant beyond reasonable doubt, We, therefore, hold that the appellant was tightly convicted/sentoneced by the Additional Sessions Judge/Judge, Special Court, HANN, 14, This appeal is without any substance and is accordingly dismissed, Appeal dismissed,