' IJAZ-UL-HASSAN, J.--- Appellants Rehman-ud-Din son of Sharif Din and Imran son of Nadir Khan both residents of Alifai Kot Malakand Agency have filed instant Criminal Appeal No,165 of 2002 challenging judgment, dated 14-5-2002 passed by learned Additional Sessions Judge/Izafi Zilla Qazi. Swat, whereby they have been convicted under section 13, Arms Ordinance, 1965 and sentenced to undergo three years' S.I. And a fine of Rs,2000 (each) or in default thereof to suffer further S.I. For three months. Benefit of section 382-B, Cr.P.C. Has also been extended to the appellants.
2. Briefly stated the prosecution story is, that on 6-2-2002 at about 15-00 hours, a police party headed by complainant Yousaf Ali, S.-I., during checking stopped a motor car bearing Registration No,LHE-92 (white colour) near 'Landakai' Check Post Malakand. The search of the car led to recovery of two kalashnikovs of 7.62 bore, two shot guns (country made) and two bandoliers from the secret cavities around engine of the car. The persons occupying the car disclosed their names as Rehmanuddin and Imran. They could produce no licence or permit in respect of the arms. The arms were taken into possession, occupants of the car were formally arrested and a case was registered against them vide F.I.R No,160. Dated 6-2-2002 under section 13 of Arms Ordinance, 1965 read with section 4 of the Suppression of Terrorist Activities Act.
3. The appellants were charged and after completion of proceedings they were put before Court for trial.
4. The prosecution in order to prove its case and bring charge home to the appellants produced four witnesses namely Ghulam Nabi, Additional S.H.O. Police Station Ghalagai (P.W.1), Zahir Shah, Constable (P.W.2), Jehandad Shah, Armour Police Sindh (P.W.3) and complainant Yousaf Ali (P.W.4).
5. Ghulam Nabi, Additional S.H.O. (P.W.1) stated that on receipt of Murasila it was correctly incorporated in F.I.R. The F.I.R. Bears his signature.
6. Zahir Shah, Constable Landakai Check Post (P.W.2) supported the prosecution story and admitted having singed the recovery memo. (Exh.P.W.2/1) vide which the Investigating Officer took into possession the arms in question.
7. Jehandad Shah, Armourer Police Line Sindh (P.W.3) stated that on 2-7-2002 in view of the application of the police he examined two kalashnikovs No,AB7566 and 0539 and found the same automatic and country made. His report is Exh.P.W.3/1 which correctly bears his signature. Under the cross-examination he denied the suggestion that report Exh.P.W.3/1 was prepared by the Investigating Officer.
8. Yousaf Ali, S.-1. Incharge Check Post Landakai (P.W.4). Admitted having recovered the arms in question from motor car No,LHE-92 during the course of checking and arrested the appellants. He also confirmed having conducted the investigation in the case.
9. The appellants in their statements recorded under section 342, Cr.P.C. Refuted the, prosecution allegation and claimed to have been falsely charged at the instance of S.-I. Yousaf Ali P.W. On account of their refusal to oblige him. They did not examine themselves on oath and declined to produce evidence in defence.
10. Believing the prosecution evidence, the learned trial Jude convicted and sentenced the appellants as noted above.
11. Mr. Fazle Haq, Advocate, learned counsel for the appellants bitterly criticized the impugned judgment and contended that the appellants were convicted on a very highly interested.
Contradictory and doubtful evidence. He maintained that P. Ws. Contradicted each other on material and vital points and as such the learned trial Judge had no justifiable reason to find the appellants guilty of the charge. Additionally, he urged that mandatory provisions of section 103.
Cr.P.C. Had not been complied with and no disinterested and unconnected witness from the locality has been associated with the proceedings which has rendered the recovery highly doubtful.
12. Conversely, learned State Counsel supported the impugned judgment and contended that prosecution has succeeded to prove its case against the appellant and there is hardly any justification for this Court to interfere.
13. It needs to reiteration that proof of guilt of an accused cannot be based upon probabilities howhighsoever these may be. Finding of guilt in each criminal case should be based upon unimpeachable evidence on record. The prosecution must affirmatively prove circumstances under which act was committed. Such burden never shifts to defence. In failure of discharge of such burden by prosecution. The golden rule of benefit of doubt to the accused comes into play.
14. In the instant case the arms in question consisting of two kalashnikovs, two rifles (country made) and two bandoliers have been recovered from motor car No,LHE-92 on 6-2-2002 at about 15-00 hours during checking. On inquiry the occupants of the car. Rehmanuddin (driver) and his companion Imran could produce no licence or permit in respect thereof. They were arrested and the arms were taken into possession. Prosecution has brought sufficient evidence on record to implicate the appellants with the commission of crime. The learned counsel for the appellants has remained unable to show any background of bitterness or between the appellants and the police officials so as to prompt the latter to falsely involve the appellants in a case of this nature. The mere assertion of the appellants in their statements under section 342, Cr.P.C. That they were falsely connected with the guilt on account of their refusal to oblige A.S.-I. Yousaf Ali, without a positive attempt on their part to substantiate the same, is of no consequence. Adverting to the next objection raised by learned counsel for the appellants regarding non-compliance of the provisions of section 103, Cr.P.C. It is not denied that police officials are as good witnesses as any other citizens unless any mala fide is established against them. Their deposition cannot be brushed aside simply on the bald allegation that they 1 belong to the Police Department. Recovery cannot be treated as violative of the provisions of section 103, Cr.P.C., unless it is shown that there is enmity between the police officials who appeared as witnesses and the accused or there was an on the part of the said police officials. Experience has shown that generally residents of locality hesitate to become witness to a recovery memo. Due to which the Investigating Officer is left with no option but to pick- up a witness from the police. In this case one of the Constables namely Zahir Shah (P.W.2) is a witness to recovery (Exh.P.W.2/1) and he has fully supported its contents. There is nothing on the file to indicate that he has given a false statement due to enmity with the appellants. The mere fact that no independent and disinterested witness from public has been associated with the proceedings, by itself, cannot be considered sufficient to render the recovery of arms doubtful.
15. Much stress has been laid on the point that report (Exh.P.W.3/1) of P.W. Jehandad Shah, Armourer is doubtful and the leaned trial Judge has proceeded on wrong premises to place implicit reliance on it and make the same a basis for conviction of the appellants. The submission of the learned counsel is not tenable. There is nothing on the file in support of the assertion.
16. Having considered the arguments of learned counsel for the parties in the light of the evidence, we are confident in our mind that sufficient material is available on the file to prove the complicity of the appellants in the commission of crime.
17. For the aforesaid reasons we feel that preponderance evidence on record is sufficient for holding the appellants guilty of the charge. There I is hardly any substantial ground for lawfully challenging the impugned judgment. Resultantly the appeal fails which is hereby dismissed.