1. RIAZ AHMAD, J.---The appellant Wali Ullah Khan son of Maskeen Khan was tried by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 on a charge under section 13 of the Arms Ordinance (XX) of 1965, for having got recovered a klashnikov from his house. Vide the impugned judgment dated 19-1-1992 the learned Judge, Special Court, Lahore found the appellant guilty on the aforesaid charge and accordingly convicted and sentenced him to undergo 5 years R.I. and a fine of Rs,50,000, in default whereof to suffer further R.I. for six months. Aggrieved by the sentence, he has preferred this appeal, which shall be disposed of by this judgment.
2. 2.The prosecution case in brief is that on 17-7-1991 P.W.4 Ahmad Pervaiz S.I./S.H.O. Police Station Shalimar, Lahore interrogated the appellant who had been arrested in a case registered against him vide F.I.R No,399/90 for an offence under section 379, P.1'.C. read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, It may be stated here that before his involvement in this case, the appellant was also an accused in another case registered against him vide F.I.R. No,111 of 1990 under the provisions of section 324, Qisas and Diyat Ordinance read with sections 452/148/149, P.P.C. In this case the appellant and his associate had fired at Shahbaz and Qalbe Abbas who were injured and in the cross firing the appellant was also injured. The companions of the appellant brought him to the Mayo Hospital, Lahore. The appellant remained under treatment in the said hospital and then was sent to jail. Thereafter, he was arrested in the case registered under section 379 P.P.C. read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. During interrogation of this case the appellant disclosed that he had a klashnikov. The appellant in the company of police party consisting of P.W.4 Ahmad Pervaiz, S.I., P.W.3 Muhammad Aslam HC of Police Station Shalimar, Lahore and a public witness namely Abdul Rauf (P.W.2) proceeded to his house, wherefrom he obtained a key from his mother and opened a box lying in a room and got recovered from it klashnikov P.1 fixed with a magazine P.2 containing 5 bullets Exh.P.3/1-5. The same were secured by P.W.4 vide memo Exh.PC attested by P.W.2 Abdul Rauf and P.W.3 Muhammad Aslam, HC. The complaint Exh.PA was drawn by Ahmad Pervaiz, S.I. at about 3.30 p.m. and was sent to the Police Station, South Cann, Lahore, formal F.I.R.
3. Exh.P.B. was reduced into writing by P.W.1 Muhammad Naveed, A.S.I.
4. 3.To prove its.case at the trial the prosecution placed reliance on three recovery witnesses namely, Abdul Rauf (P.W.2) a witness from the public, Muhammad Aslam HC (P.W.3) and Ahmad Pervaiz, S.I.
5. (P.W.4). When examined under section 342, Cr.P.C. the appellant denied the charge and stated that he has been falsely roped in the present case. He produced in defence two D.Ws of his Mohallah, who deposed that the police never visited their Mohallah and as such no recovery was ever effected.
6. 4.We have perused the entire evidence with the assistance of the learned counsel for the appellant and the State and heard both the counsel at length. Learned counsel for the appellant in the first instance contended that the recovery in this case is suspicious and not incriminatory and, therefore, cannot be believed. The appellant remained in the hospital for a period of about four months and thereafter he was sent to judicial lock up and on the day when he was arrested, was brought from jail in a case F.I.R. No,399 of 1990 under section 379, P.P.C. read with section 14 of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979. Then on that very day he was produced before a Magistrate and on the same day the recovery was effected. Learned counsel for the appellant contended that P.W.2 Abdul Rauf is an interested witness and explained the circumstances in which he joined the police party. He stated that it was strange enough that the appellant was brought from jail to be produced before a Magistrate. Abdul Rauf P.W. was already present in the Court premises and accordingly he volunteered to become a witness in this case. He was not a resident of locality. It was thus contended that these circumstances clearly cast shadow of doubt on this witness. Learned counsel also vehemently contended that no witness from the locality was made to witness the recovery proceedings, although according to the Investigating Officer, at the time of recovery proceedings, a number of persons had gathered there. It was also contended that the house from where the recovery of klashnikov was allegedly effected, was not in exclusive possession of the appellant, therefore, the appellant cannot be burdened with the so- called recovery. According to him, in such circumstances, the conviction of the appellant is not justified.
7. 5.After giving anxious consideration to the above contentions, we are of the opinion that these are devoid of force. In fact during cross-examination the Investigating Officer Ahmad Pervaiz himself admitted that prior to the recovery, the appellant told him that he had a klashnikov and could get the same recovered. Obviously the appellant was in the hospital under treatment and then he was sent to jail, therefore, the recovery was not effected, but the S.I./I.O. knew this fact. Hence the recovery was effected after a considerable period. All the witnesses were cross-examined at length. So far as Abdul Rauf P.W. is concerned, we have no doubt in our mind that he is not a truthful witness. Although he appeared as a witness against the appellant in the case vide F.I.R.
8. No,111, but nevertheless he cannot be brushed aside, because apparently nothing is on the record to show that he has any motive hostile towards the appellant nor any other ground of such kind so as to hold that he is a liar. Merely because he is a complainant in F.I.R. No,111 of 1990 and is appearing as witness in another case, is no reason to treat him as a hostile witness. Therefore, his testimony cannot be thrown away. So far as possession of the house is concerned, the record reveals that the mother of the appellant was in the house, who gave the key to the appellant and then the appellant opened the lock of the box. These circumstances clearly show exclusive possession of the appellant. We are not prepared to discard this recovery because other inmates of the house from where the recovery was effected, were none else than family members of the appellant and, therefore, they were not strangers or outsiders. This contention is devoid of any force. It is pertinent to mention here that even nothing has been brought on record to show that the police was in any manner hostile to the appellant or had designed to involve him in this case falsely by planting klashnikov upon him.
6. After giving careful consideration on the facts and circumstances of the case, we find that there is overwhelming evidence on the record to prove that the appellant is guilty of the charge.
9. Consequently, this appeal fails and is hereby dismissed. However, adverting to the question of sentence, we are of the view that it is too severe and calls for interference. We, therefore, reduce the sentence of the appellant from five years to three years and also reduce the fine of Rs,50,000 to Rs,5,000 or in default of its payment to suffer further R.I. for another term of three months. The appellant shall also be entitled to the benefit of section 382-B, Cr.P.C.