1. AKHTAR ZAMAN MALGHANI, J.---Judgment, dated 30-10-2001, passed by Special Judge under Suppression of Terrorist Activities Act, 1975 Mekran at Turbat has been assailed in the instant appeal, whereby appellant has. Been found guilty of the charge under section 13-E, Arms Ordinance, 1965 for having been found in possession of one Kalashnikov, two magazines and 48 bullets in contravention of the provisions of section 9 of the said Ordinance and sentenced to three years' R.I. Benefit of section 382-B, Cr.P.C. Extended.
2. The case of prosecution, in brief, as narrated in F.I.R. No. 12 of 2002 (Exh.P/2-A) registered at Levies Station Buleda are that on 7-6-2001 Muhammad Khan, Naib Subedar 6154, Mekran Scouts 61 Wing, lodged report to the effect that they were on patrolling duty in the area of a Landoor when at 9-30 p.m. Patrolling party signalled a vehicle to stop but instead of stopping the occupants of the said vehicle started tiring upon them. The Gasht party returned tire due to which one of smugglers was injured. All five occupants were apprehended and on their personal search appellant Mullah Younas was found in possession of one Kalashnikov China made No. 17175415 and 48 rounds alongwith two magazines while other occupants namely Abdul Basit, Abdul Hameed, Atta Ullah and Abdul Fahad were also found in possession of different arms and ammunition. All arms and ammunitions alongwith vehicle No. KC-1665 was taken into possession. A joint F.I.R. Was registered against all the five accused persons under section 13-E of Arms O;dinance and sections 5/6 of Explosive Substances Act. Muhammad Azam, Naib-Tehsildar started investigation. He visited the scene of offence, prepared site plan and recorded the statements of prosecution witnesses. He also took into possession arms and ammunition recovered from the possession of accused persons through recovery memo. Exh. P/1-A. After completion of investigation separate challan in respect of each of accused was submitted in the Court of Sessions Judge, Mekran.
3. Appellant Mullah Younas did not plead guilty to the charge framed under section 13-E, Arms Ordinance whereupon prosecution produced two witnesses in support of its case.
4. P.W.1 Khan Gul is witness to the recovery memo. Exh. P/1-A and was also member of patrolling party while P.W.2 Naib Subedar Muhammad Khan is complainant in the case and head of the patrolling party. Thereafter, the case was adjourned for 29-11-2001 for examination of remaining prosecution evidence but on the said date no P.W. Was present as such, learned trial Court closed the prosecution evidence and examined accused/appellant under section 342, Cr.P.C.
5. Appellant in his statement under section 342, Cr.P.C. Denied the allegation which appeared against him in the prosecution evidence. He did not produce any evidence in defence and opted not to record statement on oath.
6. The learned trial Court found him guilty and sentenced him as mentioned in the opening para. Of this judgment. The appellant preferred this appeal against his conviction through Jail Authorities.
7. At the time of admission Mr. Aman Ullah Kanrani, Advocate volunteered to appear on behalf of appellant. On 9-9-2002, when this case was taken up, Mr. Aman Ullah Kanrani, Advocate was absent without any intimation to this Court.
8. We heard the learned State Counsel and also perused the record and evidence with his help.
9. Prosecution rests upon the testimony of P. W.1 Khan Gul. And P. W.2 Muhammad Khan, P. W.1 while examined in the Court supported the prosecution case and stated that during patrolling duty they saw a pick-up coining from Alandoor side which was signalled to stop but the occupant started firing upon them to which they retaliated whereupon vehicle was stopped. Mullah Younas got down from the pick-up having a Kalashnikov in his hand. 48 bullets were recovered from the two magazines of Kalashnikov. Besides appellant four other persons were also apprehended who were also found in possession of different arms and ammunition. This witness further stated that appellant failed to produce any licence or permission regarding possession of Kalashnikov, therefore, he was handed over to Naib-Tehsildar Buleda alongwith recovered arms and ammunition who took the same into possession vide recovery memo. Exh. P/1-A which was signed by him. He also produced Kalashnikov No. 1717495 in the Court as Article 1,48 bullets as Article 2 and two Magazines as Article 3. In cross-examination he admitted that the recovery memo. Was prepared at Tehsil Office and after examining Kalashnikov same was returned to them for custody.
10. He denied the suggestion that the arms and ammunition were lying on the ground which were taken into possession by them. He added that the Kalashnikov was taken from the hand of appellant. The evidence of this witness is natural and straightforward. No suggestion was put to him to show any malice on his part to falsely implicate the appellant. Neither the appellant has denied his arrest in injured condition as stated by the witness nor presence of this witness was denied at the spot. In his statement under section 342, Cr.P.C. The appellant has taken plea that he was arrested from Alandoor Bazaar but no defence was produced to substantiate the same. The appellant was apprehended at about 9-30 p.m. In a remote area where hardly any independent witness is available. P. W.1 has categorically denied the suggestion that the area fromwhere appellant was apprehended is a populated area. As already observed we find no malice or motive on the part of this witness to falsely implicate the appellant, 1 therefore, we have no hesitation to accept the testimony of this witness. The statement of P.W.1 is further corroborated by the evidence of P.W.2 Naib Subedar Muhammad khan who was head of the patrolling party and lodged F.I.R. Exh.
11. P/2-A with the levies authorities. In his statement before the Court he narrated the same story as mentioned in F.I.R. He had corroborated the statement of P.W.1 on every material particular. The perusal of his statement shows that same is confidence-inspiring and probable. No suggestion was put to this witness to show that he had any motive to falsely implicate the appellant. Even in his statement under section 342, Cr.P.C. The appellant has not attributed any malice on his part.
12. The statements of both these prosecution witnesses are further corroborated by the production of recovered arms and ammunition fin the Court.
13. So far defence plea is concerned, no specific plea has been taken by the appellant while being examined under section 342, Cr.P.C. Except that he was apprehended from Alandoor Bazaar but he had failed to substantiate the same. It is the case of prosecution that he was arrested from an un- populated area, as such; no independent person was available to witness the recovery. In such circumstances in order to make a dent in prosecution case the appellant should have led some evidence. If we put both version (prosecution and defence) in juxtaposition, the version of prosecution seems to be more natural and probable. In our humble opinion the appellant has failed to prove his plea of defence.
14. We are conscious of the fact that Investigating Officer in the case was not examined by the trial Court who is a very material witness but there is nothing on C record which could show that by not examining the Investigating Officer any prejudice has been caused to the appellant.
15. For what has been observed above we have arrived on a definite finding that the prosecution has successfully proved its case against the appellant beyond any shadow of doubt and he was rightly found guilty by the trial Court. He had already been dealt with leniency and minimum sentence provided for the offence has been awarded to him. We find no merit in, the appeal and same is accordingly dismissed. Office is directed to inform the appellant d about fate of his appeal through Jail Authorities.