' MUNIR A. SHEIKH, J.---This appeal by leave of the Court is directed against the judgment dated 21-4-1993 of the Federal Shariat Court through which the appeal filed by the respondents/accused persons against their conviction and sentences under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, .1979, section 324, Qisas and Diyat Ordinance, 1990, section 353/149, P.P.C. And section 13, Arms Ordinance by the trial Court was accepted and they were acquitted of the charges.
2. The F.I.R. Was got registered by Awal Khan, S.H.O., Police Station, Karak according to whose statement, pursuant to a spy information he alongwith Muhammad Ayaz, A.S.I., Mir Sarfraz, A.S.I., Muhammad Yousaf, I.H.C., Faizullah, H.C. And other police constables duly armed in pick-up No,KIA- 2179 had blocked the road near Jandari Hospital. At about 22-00 hours, a pick-up No,BNB-5039 reached and its attempt to run away was foiled. In the meanwhile, some unknown armed persons deboarded from the said pick-up and started indiscriminate firing on police party and tried to escape. As a result of their fire shots, he got injury near his elbow. The police party reached near the said pickup and fired in self-defence. Then they apprehended the five respondents/accused who were inside the said pick-up and recovered 12 bundles from inside the said pick-up and four bundles from its top. The other unknown persons succeeded in escaping away in the darkness of the night time. Since the place was insecured, the said Datsun alongwith recovered bundles and five accused persons was brought to the police station. The said bundles were opened there and five kalashinkovs, one stain gun, ten rifles of 7 MM, two rifles of 7.62 bore, one rifle of Dangar bore, one rifle of 303 bore, 11 D.B. Shot guns, 4 S.B. Shot guns, 20 pistols of 30 bore, 1 revolver of 32 bore, 6 pistols of 12 bore, 2 daggers, 18 magazines of 7.62 bore, 20 Magazines of 30 bore, 1000 rounds of 7 MM, 120 rounds of 301 bore, 25 rounds of Dangar Bore, 300 rounds of 30 bore, 375 rounds of 7.62 bore, 40 rounds of 8 MM, 200 rounds of 32 bore, 105 killo opium, 66 killo Charas and 4 killo Heroin were taken into possession vide memo. Ten grams each from opium, Charas and heroin were separated and sealed into separate parcels for chemical analysis. The respondents informed the police that Quaid-e-Azam was driving that Datsun at the time of occurrence who was also arrested. They also disclosed the names of eleven other companions out of whom Gul Shah Noor was arrested but the remaining were not found available in their villages, therefore, search warrants and after that notice under section 87, Cr.P.C. Were issued against them.
3. At the trial, the prosecution examined five witnesses. P.W.1 Qayyum Jan, DFC was a formal witness who was entrusted with the search warrants and then notice under section 87, Cr.P.C. Against Gul Shah Noor. The ocular evidence is mainly of P.W.2 Awal Khan, S.H.O., who was complainant in the case. He while appearing at the trial supported the case as narrated in the F.I.R. He also stated that he went to the spot and prepared the site plan and also took into possession three blood-stained stones vide memo. Exh.P.B./2 and pellets, card bound and empties from the spot vide memo.
Exh.P.B./3. P.W.3 is Mir Sarfraz, A.S.I. Who was member of the raiding party. He supported the evidence of P.W.2. He was the marginal witness of the aforementioned recovery memos. Dr. Zafar Iqbal who examined Awal Khan, S.H.O. Appeared as P.W.4 and found the following injuries on his body:-- "(1) A wound about 1/3" in diameter situated on the dorsal aspect of left forearm about 4" below the elbow, oval in shape. Bleeding occurs on touching the wounds (wound of entrance).
(2) Multiple scratches of varying sizes and varying shape on the fingers and palm of left hand.
(3) A few small scratches on both knees. X-Ray left forearm shows no evidence of bony lesion. A small shadow i.e, foreign body is seen.
'Result ...... Simple.
' Probable duration of injury....Within about 3 hours Kind of weapon fire arm injury".
' He made medico-legal report Exh.P.W.4/1. Amal Sattar, P.W.5 proved the recovery memo Exh.P.W.5/1 vide which the I.O. Took into possession blood-stained jercy P.68 and shirt P.69. Reports of the Chemical Examiner Exh.P.W.2/3 and Exh.P.W.2/4 revealed that the samples contained Charas, opium and heroin. The respondents/accused persons in their statements denied the allegation and pleaded innocence: They denied any recovery from their possession. They declined to make statement on oath and did not produce any evidence in defence, though in their statements tinder section 342, Cr.P.C., they pleaded that they were involved falsely at the instance of their opponents who are the relatives of Muhammad Ayaz, A.S.I. But no evidence to establish this fact was produced.
4. The trial Court relying upon the evidence of Awal Khan, S.H.O. (P.W.2), Mir Sarfraz, A.S.I. (P.W.3) and the fact that the respondents were travelling in the same pick-up and the evidence of recoveries, came to the conclusion that the case against them stood established beyond any shadow of doubt and they were convicted and sentenced as under:-- Under Article 3 of the Order. Four years' R.I., ten stripes and a fine of Rs,50,000 or in default one year R.I. Each.
Under Article 4 of the Order. Ten years' R.I., fifteen stripes and a fine of Rs,50,000 or in default one year R.I. Each.
Under section 324 of Qisas and Diyat Ordinance.Three years' R.I. And a fine of Rs,10,000 or in default further four months' R.I. Each.
Under section 324 of Qisas and Diyat Ordinance.One year R.I. And a fine of Rs,2,000 or in default further one month R.I.
Under section 353/149, P.P.C. Each. Six months' R.I. And a fine of Rs,1,000 or in default fifteen days' R.I. Further each.
Under section 13 of Arms Ordinance. Three years' R.I. And a fine of Rs,50,000 or in default further one year R.I.
5. However, the Federal Shariat Court accepted their appeal and they were acquitted of the said charges through judgment dated 21-4-1993. The said Court held that the pick-up in which the respondents and other co-accused were travelling was the passenger vehicle and no arm, ammunition or narcotics was recovered from them and they did not attempt to run away like the other accused persons but continued sitting in the van and it was not proved by the prosecution that the said van was specially booked for this purpose and was not at that time plying as a passenger vehicle, as such, the charges against them were not proved.
6. Leave to appeal was granted against the said judgment by this Court in the following terms:-- "Besides opium, Charas and heroin weighing 105, 66 and 4 kilograms respectively, 5 Kalasihnikovs, 1 sten gun, 10 rifles of 7 MM, 2 rifles o 7.62 bore, 1 rifle of Dangar bore, 1 rifle of .303 bore, 11 D.B. Sho guns, 4 S.B. Shot guns, 20 pistols of 30 bore, 1 Revolver of 32 bore, pistols of 12 bore, 2 daggers, 18 Magazines of 7.62 bore, 20 Magazine of 30 bore, 1 Magazine of 32 bore, 1000 rounds of 7 MM, 120 round of 303 bore, 25 rounds of Dangar bore, 300 round of 30 bore, 375. rounds of 7.62 bore, 40 rounds of 8 MM and 200 rounds of .32 bore were found in the bundles recovered from the wagon boarded by the respondents who were apprehended at the spot. Leave to appeal is granted to examine whether the learned Federal Shariat Court in recording a finding of acquittal had correctly followed the principles regarding appraisal of evidence in criminal cases as laid down by this Court.Bailable warrants in the sum of Rs,25,000 with two sureties each in the like amount returnable to District Magistrate, Karak be issued against the respondents."
7. We have heard the learned counsel for the parties. There was no denial rather from the material brought on the record, it was an admitted fact that the respondents were travelling in the pick-up in question and that narcotics and arms in huge quantity was recovered from it and there was firing at the spot by the co-accused persons travelling with the respondents who had succeeded in running away. There was no requirement according to the law declared by the superior Courts in such cases to strictly prove that the accused persons were in possession of a particular article physically. The presence of the accused persons in the pick-up where huge quantity of narcotics and large number of arms, ammunition had been placed which were being carried coupled with the act of the co-accused of opening fire and to run away furnished sufficient evidence to establish that they would be deemed to be involved in carrying or transporting the narcotics or possessing arms and it was not necessary in such circumstances to prove recovery from their persons or that they should physically possess such articles and arms, ammunition. They would be presumed to be conscious about the presence of these articles in the pick-up and it was for them to explain that the said pick-up at the relevant time was plying as ordinary passenger vehicle or it was not booked specially for this purpose. In their statements, they only pleaded innocence and stated that they were involved on account of enmity with some police officer about which they did not lead any evidence. The approach of the Federal Shariat Court for requiring in such cases strict proof of recovery of such articles from the person of the accused respondents was not in accordance with the principles laid down by the superior Courts as regards the appraisal of evidence in such cases. Initial presumption would be that all those persons who were present in the pick-up shall be deemed to be possessing and carrying these articles unless they otherwise produce evidence to prove that they were not in the knowledge of the presence of the objectionable articles..
8. Learned counsel for the respondents when faced with this situation tried to argue that like other accused persons/alleged companions of the respondents, the respondents according to evidence of Awal Khan, S.H.O. (P.W.2) did not make any attempt to run away from the spot as they were arrested from within the pick-up. If the evidence of Awal Khan (P.W.2) and Mir Sarfraz (P.W.3) as a whole is read minutely and carefully, one cannot escape the conclusion that all the accused persons attempted to run away and for doing so they had to come out from the pick-up and if some of them had succeeded to come out of the pickup and succeeded in running away and the other in the process of doing so could not succeed in coming out of the pick-up it did not mean that they continued sitting there as persons unconcerned. The approach of the Federal Shariat Court in this respect was not based on proper appraisal of evidence of these two witnesses on this aspect of the case. Learned counsel for the respondents further argued that the respondents were not arrested at the spot but according to the prosecution evidence, they were brought in the police station where their arrest was recorded. It is in the evidence that at the spot, there was continuing firing for a considerable time by the either accused persons which was resorted to in order to get the respondents, their companions also rescued from the clutches of the police, therefore, there was sufficient explanation that in such situation their arrest could not be recorded at the spot which was normal conduct otherwise there was nothing to stop the prosecution to show their arrest at the spot. The evidence of Awal Khan (P.W.2) and Mir Sarfraz (P.W.3) is natural and inspires confidence, therefore, it could not have been disbelieved or ignored.
9. After examining the evidence, we are fully convinced that the prosecution through cogent evidence has brought home guilt to the accused beyond any shadow of doubt, therefore, the judgment of the Federal Shariat Court is not sustainable.
10. The question whether conviction of the respondents under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and section 324/353, P.P.C. Can be maintained, however, requires consideration. From the facts established on the record by the prosecution in our view, the respondents were guilty of transportation of narcotics, therefore, they could be convicted under Article 3 of the Hadd Order and not Article 4 thereof. Likewise, from the evidence, it has only been established that allegedly there was indiscriminate firing by the accused persons and particularly the other companions/accused persons and no specific role in particular the injury has been attributed to any accused person, therefore, in these circumstances, respondents' conviction under section 324/353, P.P.C. Can also not be maintained.
11. For the foregoing reasons, this appeal is partly accepted and the judgment of the Federal Shariat Court as regards setting aside of the conviction of the respondents under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and section 13, Arms Ordinance is set aside and their conviction and sentences thereunder are upheld and the appeal seeking setting aside of their conviction and sentence under Article 4 of the said Order and sections '324/353, P.P.C. Is hereby dismissed. There will be no order as to costs.