' RAHMAT HUSSAIN JAFFERI, J.---The present appeal is directed against the judgment, dated 24-7- 2003 passed by the learned Special Judge (STA) Malir, Karachi in STA Case No,213 of 1997 (State v.
Mithammad Ashraf and others). Under the impugned judgment, the learned Judge convicted the appellant under section 13(d), Pakistan Arms Ordinance, 1965 (hereinafter would be referred to as Arms Ordinance) and sentenced him to suffer R.I. For 5 years, with benefit of section 382-B, Cr.P.C.
2. Brief facts giving rise to the present appeal are that complainant Inspector Shoukat Mehmood alongwith his subordinate staff was on patrolling duty. On 31-3-1997, at 12-15 a.m. In the night, the complainant stopped a Suzuki Van near Buraq Petrol Pump, Super Highway, as he had received spy information that arms and ammunition would be brought in a Suzuki Van from Hyderabad to Karachi. Two persons were sitting on the front seat of the vehicle. Out of them, one was sitting on the driving seat whereas the other was sitting besides him. On interogation, those persons disclosed their names as Muhammad Umer (absconding accused) and Muhammad Ashraf (the appellant). From the personal search of the absconding accused Muhammad Umer, the complainant found two handgrenades tied around his waist, which were secured. From his further search, cash of Rs,27,000, N.I.C. And one Rado watch were secured. The police also searched the appellant and found two handgrenades tied around his waist. From his further search cash of Rs,42, N.I.C. One purse and one Press Card were secured. From the search of the vehicle 4320 bullets of Klashnikov, one gunny bag Containing 46 handgrenades, five Klashnikovs, two magazines and four fuse boxes were secured. The appellant and absconding accused Muhammad Umer could not produce the licence of the arms and ammunition therefore they were arrested. The complainant prepared such Mashirnama in presence of Inspector Hassan Khan and A.S.-I. Gul Faraz. Then the appellant, absconding accused and the property were brought to the police station where the F.I.R. Was lodged. The police after usual investigation after sending the handgrenades to the Deputy Director Civil Defence of Bomb Disposal Squad for examination and report challaned the appellant and co-accused in the Court of law.
3. On 11-12-2000, a charge under section 13(d), Arms Ordinance read with section 109, P.P.C. Was framed against the appellant and absconding accused to which they pleaded not guilty.
4. In support of the case, the prosecution examined the following 4 witnesses:-- {{TABLE}} S. P.W. Name of Briefs Summary of No, No, P.W. Evidence 1 P.W.1 A.S.-I. Mashir of arrest Gul and recovery. He Faraz supported the prosecution case and stated that the arms and ammunition were secured from the personal search of the appellant, absconder accused and from vehicle.
2 P.W.2 Inspector Mashir of arrest Hassan and recovery of Khan arms and ammunition from the possession of appellant, co- accused and from vehicle.
3 P.W.3 Inspector Complainant. He Shoukat arrested the Mehmood appellant, absconding accused and recovered arms and ammunition from their possession and from vehicle. He also supported the prosecution case.
4 P.W.4 Inspector Investigating Dawood Officer
5. The appellant and the absconding accused in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. The appellant Muhammad Ashraf in his further statement stated as under:-- "I am innocent. Police has falsely foisted me these arms and ammunition considering me as a worker of M.Q.M. But I do not belong to M.Q.M. I was taken away by police on 30-3-1997 at about 2- 30 p.m. From my house. Two persons Abbas Raza and Ahmed were already there at police station.
From these persons, these arms and ammunition were recovered, police released them and I have falsely been implicated, in this case. These articles are foisted upon me."
6. The absconding accused Muhammad Umer and the appellant examined themselves on oath.
The appellant in his statement stated the same facts as he disclosed in his further statement and further added that the police had demanded money from him which he could not pay therefore he was involved in the case.
7. Thereafter the co-accused Muhammad Umer absconded, therefore, he was declared absconder and the case proceeded against the appellant.
8. After considering the material available on the record, the learned trial Judge convicted the appellant as mentioned above and separated the case of absconding accused, under the impugned judgment.
9. We have heard the advocate for the appellant, State counsel and perused the record of this case very carefully.
10. The learned Advocate for the appellant has stated that the prosecution have not produced the entry of station diary under which the complainant and his staff left the police station; that the case property was not sealed at the spot; that the provisions of section 103, Cr.P.C. Were not complied with; that the tins and the gunny bag in which the arms and ammunition were lying in the vehicle were not produced and that the property was not sent to Ballistic Expert for report for proving that the arms were in working condition. In support of his above contentions he has relied upon the cases of Wazir v. State 2003 PCr.LJ 359 (2) Abdul Sattar v. State 2002 PCr.LJ 51 (3) Ashique Ali v. State 2002 PCr.LJ 450 (4) Arif Khan v. State 1998 PCr.LJ 1287 and (5) Nazar Muhammad v. State 1996 PCr.LJ 1410.
11. On the other hand the learned State counsel has stated that the prosecution have examined the complainant and two Mashirs; that they have fully supported the prosecution case and categorically stated that the arms and ammunition were secured from the possession of the appellant and from the vehicle; that their evidence is consistent and trustworthy and that there is no enmity between the witnesses and the appellant. He has further stated that non-sealing of the property is not fatal to the prosecution case as it is not the requirement of law; that the property was produced in the Court which was not challenged by the appellant that the same was not the arms and ammunition; that the non-production of Station Diary about departure of the complainant from the police station is not adversely affecting the prosecution case as the statement of all the above mentioned three witnesses with regard to their performing patrolling duties has not been challenged in the cross examination and as such the appellant has admitted the said facts, therefore, no further evidence was required to prove the admitted fact.
12. We have given due consideration to the arguments and find that the prosecution relies upon the evidence of three witnesses viz. P.W.1 Mashir, Gul Faraz, P.W.2 Inspector, Hassan Khan and P.W.3 complainant Inspector, Shoukat Mehmood. Their evidence reveal that on 31-3-1997 at 12-15 a.m.
They stopped a Suzuki Van near Buraq Petrol Pump on Super Highway. The appellant and the absconding accused Muhammad Umer were sitting in the vechile. From the search of the appellant, they found two hand-grenades tied around his waist. From the search of vehicle, 4320 rounds of Klashnikov, 1 gunny bag containing 46 handgrenades, five Klashnikovs, two magazines, and four fuse boxes were secured. From the search of the absconding accused, the police found handgrenades tied around his waist. The appellant and the absconding accused were arrested.
Thereafter, such Mashirnama was prepared. The appellant, absconding accused and the property were taken to police station where F.I.R. Was lodged. The evidence of the three witnesses is unanimous on each and every aspect of the case. There are no material contradictions or discrepancies in their evidence: therefore, the evidence is confidence-inspiring.
13. The learned Advocate for the appellant has attacked the impugned judgment on the ground that the prosecution did not associate private persons in this case to act as Mashir and have violated the provisions of section 103, Cr.P.C. It is pertinent to point out that section 103, Cr.P.C. Is applicable in respect of search of a house. However, in the present case the place of incident is Highway, therefore, the provisions of section 103, Cr.P.C. Are not required to be strictly complied with. Similar question was considered by Honourable Supreme Court of Pakistan in a case of State v. Muhammad Amin 199 SCMR 1367 and at page 1371 it has been observed as under:-- "Be that as it may, the search of the baggage and person at the Airport or on the Highway is generally not amenable to the strict compliance of section 103, Cr.P.C. It is by now settled law that provisions of section 103, Cr.P.C. Do not apply if the recovery is not made in pursuance of search of a house, but is made elsewhere, for instance on the Highways or the road sides or the public places like Railway Stations, Bus Stands and the search of baggage or of the person at the Airport.
14. In the said authority at the same page, it has been observed as under:-- "It is common experience nowadays that due to apathy, the public at large are hesitant to come forward to witness the recovery in criminal cases for fear of reprisals in view of the present deteriorating law and order situation in the country.
15. As such, the strict compliance of section 103, Cr.P.C. Is not required to be made in the circumstances of the present case.
16. The learned Advocate for the appellant has stated that the prosecution did not produce the entry of the Station Diary under which the complainant alongwith his subordinate staff left the police station for the purpose of patrolling, therefore, the prosecution story is doubtful.
' In the present case, all the three witnesses are unanimous on the point that. On 31-3-1997, they were on patrolling duty.
' The said piece of evidence was not challenged by the appellant in the cross-examination as no question was asked from any of the P.Ws. Denying that they did not leave the police station for the purpose of patrolling. It is well settled principle of law that if any piece of evidence is not challenged in the cross-examination then it is presumed to be accepted as true by the other side. Reliance is placed on cases of Muhammad Akhtar v. Manna 2001 SCM R 1700 and Waqar v. Fakir Ali 1969 SCMR
189. It has been held in a case Said Munir v. State reported in PLD 1964 Pesh. 194 that when a witness is not cross-examined then his statement is presumed to be accepted and admitted by the other side. It has been further held in a case of Malik Muhammad Iqbal v. State reported in 1987 PCr.LJ 247 that when the evidence of a witness is not challenged in cross-examination on a certain point raised in examination-in-chief then the same is accepted to be true.
18. Even otherwise, when a party leads evidence; then the other side has two options to either admit the fact, or deny the same. If the party admits the fact, then no cross-examination is made to the witness denying the said fact, but if the, party denies the fact then the witness is cross-examined on the said point by denying the same. From the trend of the cross-examination, the prosecutor has to decide to either lead further evidence or not on the said fact. If the other side does not deny a fact, then the said fact is to be deemed to have been proved. Once a fact is admitted, then no further evidence is required to be led to prove the admitted fact on the principle that what is admitted need not be proved as enunciated under Article 113 of Qanun-eShahadat Order, 1984. We have already observed that the appellant had not denied the fact of leaving the police station by the police officers therefore in such situation, the station diary of a police station was not required to be produced in the evidence. Because the said fact was already admitted on the record. If the said fact would have been denied by the other side, then the prosecutor would have been required to prove the said fact by leading the evidence available with him on the said point, including the oral or documentary evidence. In such situation, the production of station diary was essential and should have been produced in the evidence.
19. From the perusal of above mentioned authorities relied upon by the Advocate for the appellant on the above point, it is not clear as to whether the fact of leaving the police station by police officials were admitted by the other side or not. Apparently, the sail fact was denied by the other side in the said authorities, therefore, it was found necessary to produce the station diary, which is not in the present case.
20. The learned Advocate for the appellant has denied the fact of leaving the police station by the police officials at the appellant stage. The said fact was admitted by him at the trial stage by not challenging the said fact in the cross-examination. It is pertinent to point out that the appellant was represented by a seasoned council before the trial Court who conducted a lengthy cross- examination to the witnesses. Therefore, it cannot be said that the appellant was not adequately represented by a law knowing person before the lower Court. It is well-settled principle of law that once a fact is proved or admitted then the burden shifts upon the other side to disprove the said fact or to prove that his admission was untrue so as to get rid of the said admission for the simple reason that once a fact is admitted then it is presumed to be true until the contrary is proved. The appellant did take any steps to either disprove the said fact or lead any evidence to show that his admission was untrue. Thus, the appellant cannot escape from his admission in the circumstances of the case. Therefore, the non-production of station diary in the circumstances of the case is not affecting the prosecution case.
21. The learned Advocate for the appellant has stated that the case property was not sealed at the Wardat, therefore, the case has become doubtful. A Division Bench of this Court in a case of 13(d), Arms Ordinance has examined the wisdom behind the sealing of the case property in a Criminal Appeal No,D-101 of 2002 Bilawal v. State (decided on 30-1-2003), in the following manner:-- "It is pointed out that wisdom behind sealing the weapon at the place of incident is to eliminate the possibility of manipulation of evidence after the recovery of weapon. The sealing of the weapon would become essential in the cases when it is alleged that the weapon was used in the commission of crime and empties were secured from the Wardat. In such situation the empties are required to be sealed after its recovery and so also the weapon secured from the possession of the accused and then both the properties are to be sent to the Ballistic Expert for examination and report so as to connect the empties with the weapon secured from the possession of the accused in order to prove that such weapon was used in the commission of the crime. If the weapon or empties were not sealed at their respective places of recoveries then possibility of tampering with the said pieces of evidence cannot be ruled out for the simple reason that after recovery of pistol, empties can be manipulated by firing from the pistol and then if those manipulated empties of pistol are sent to Ballistic Expert then definitely the report of Ballistic Expert will be in positive, therefore, in order to avoid the possibility of manipulation of recoveries or weapon, the Court always insists upon that the property should be sealed at the place of Wardat so as to discard any possibility of manipulation or tampering with the evidence. In such situation, it is essential that the property should be sealed at the place of recovery and sent to Ballistic Expert."
22. Apart from the above facts, the appellant did not challenge that the properties lying in the Court were not arms and ammunition or claimed that the properties were substituted or tampered with. On the contrary he took a plea in his further statement recorded under section 342, Cr.P.C.
That the arms and ammunition were secured from other persons but the same have been foisted upon him. Thus, he admits that the properties are arms and ammunition but claims that the same were foisted upon him.
23. It will be further seen that mere possession of an unlicensed arms and ammunition is an offence under the Arms Ordinance. In this connection a reference is invited to sections 8 and 9 of the Arms Ordinance, which reads as under:-- "8. Prohibition of going armed without licence.--(1) No person shall go armed with any arms except under a licence and to the extent and in the manner permitted thereby.
(2) Any person so doing armed without a licence or in contravention of its provisions may be disarmed by any Magistrate, Police Officer or other person empowered by Government in this behalf by name or by virtue of his office.
(3) Nothing in subsections (1) and (2) shall apply to a person carrying arms under a written authority issued in accordance with the rules.
(9) Unlicensed possession of arms, etc. No person shall have in his possession or under his control any arms, or any ammunition or military stores, except under a licence and in the manner and to the extent permitted thereby."
24. From the plain reading of the above provisions it is clear that no person is allowed to go armed without licence or possess any arms and ammunition without licence. If any person violates the provisions of sections 8 and 9 of the Arms Ordinance then he will be committing an offence punishable under section 13(d) or 13(e) of the Arms Ordinance, which read as under:-- "13. Penalty for breach of sections 4-8 to 11.---(Subject to the provisions of section 13-A) whoever commits any of the following offences, namely:
(a) _______ (b)
(c) _______
(d) goes armed in contravention of the provisions of section 8;
(e) has in his possession or under his control any arms, ammunition or military stores in contravention of the provisions of section 9."
25. Thus, mere going armed or possessing unlicensed arms and ammunition are offences by itself and for that purpose there is no need for sealing the property at the place of incident. The important question is that the prosecution is required to prove that the arms and ammunition are unlicensed and were secured from the possession of the accused. Even otherwise, the sealing of the property at the place of incident is not the requirement of law as observed in a case of Musadiq v. State PLD 2003 Kar.
216. It has been observed at page 220 as under:- "The objection about sealing of the weapon and its examination by the Fire-arm Expert also does not have force. Present case is of possessing the arms and ammunition and not the use thereof.
Where matching of empties with the weapons is necessary for establishing the fact that the weapon recovered was used in the crime. It is nobody's case that the weapon produced before the Court was not serviceable. Normally, when the weapon is produced before the Court, it can easily form an opinion about its capability to fire. Ordinarily it is not the point of science or art indicated in Article 59 of Qanun-e-Shahadat Order, 1984. In cases like present one the opinion of expert becomes necessary when the Court requires it in view of the controversy about the condition of weapon finding it difficult to take decision in that respect. Otherwise, in the cases of possession of the arms, the sending of the weapon for expert opinion is not the requirement of law. Moreover, in present case bullets/ammunition are said to have been recovered together with the weapon, therefore, absence of expert's opinion regarding the weapon is not of much significance."
26. Thus, non-sealing of the property at the place of incident has not affected the prosecution case.
27. The learned Advocate for the appellant has stated that the property viz. Klashnikovs were not sent to Ballistic Expert for examination and report so as to ascertain whether the Klashnikovs were in working condition. He has relied upon a case of Ashiq Ali v. State reported in 2002 PCr.LJ 450. In this connection we may further observe that even a part of any arms is coming within the definition of "arms" as defined under section 3(1)(b)(iv) of Arms Ordinance, which reads as under:-- "3. Definition.---(1) In this Ordinance, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say---
(b) "arms" includes
(i) __________
(ii) __________
(iii) Knuckle-dusters, spears, spearheads, bows and arrows and parts of arms"
(Underline is ours to give emphasis)
28. From the above definition it is clear that any part of unlicensed arms as defined under clauses 1, 2, 3 of section 3(b) is coming within the definition of "arms". As such if anybody goes armed with any part of unlicensed arms then he will be breaching the provisions of sections 8 and 9 of the Arms Ordinance, therefore, will be liable for punishment under section 13(d) or (e) of the said Ordinance. After taking into consideration the above mentioned definition of "arms", we are of the considered view that it is immaterial whether the arms are in working condition or not. Therefore, it is not necessary to obtain the report of Ballistic Expert to prove that the said arms were in working condition.
29. The learned Advocate for the appellant has stated that the prosecution have relied upon the report Exh.10-B of Mr. Moinuddin of Bomb Disposal Special Branch Sindh. But the said report is not admissible under section 510, Cr.P.C., as Mr. Moinuddin has not been examined by the prosecution to prove that the properties were handgrenades or fuses. We have examined section 510, Cr.P.C.
And found that the report of officers mentioned therein is admissible in evidence. Mr. Moinuddin of Bomb Disposal Squad is not an officer coming within the ambit of section 510, Cr.P.C. The prosecution have also not produced any authority of Government of Sindh appointing Mr. Moinuddin as an officer within the meaning of section 510, Cr.P.C. As such, his report (Exh.10-B) cannot be relied upon without the examination of Mr. Moinuddin. Furthermore, the report Exh.10-B does not bear the seal of the office of issuing authority. It is on a plain paper though it should have been on the official pad of the office of the issuing authority. Thus in these circumstances the report Exh.10-B loses its importance.
30. Nevertheless, the Arms Ordinance defines "ammunition" under section 3(a). The relevant clauses are iii, iv and vi, which are as under:--
(a) "ammunition" includes; (i)
(ii)
(iii) gun .Wads, gun flints, percussion-cap, fuses, friction tubes and detonators;
(iv) all types of grenades, bombs, rockets, mines and fuels for flame throwers;
(v) ________________
(vi) all parts of ammunition, but does not include lead, sulfur or saltpepper:
31. From the perusal of above provisions, it is clear that all types of fuses, grenades, bombs, their parts and all parts of other ammunition are coming within the definition of "ammunition". If a part of unlicensed fuse, handgrenade or bomb is recovered from the possession of any person, then he will be liable for punishment under section 13(d), Arms Ordinance.
32. In the present case, it is not the case of the appellant that the articles secured in the case are not the arms and ammunition (handgrenades or fuses). His case in the further statement is that the articles are arms and ammunition which were secured from other persons but the same have been foisted upon him. Thus there is no dispute that the articles secured in the case are not the arms and ammunition (handgrenades or fuses). Even if we consider the grenade empty then, too, it will fall within the definition of ammunition being its part and possession whereof is an offence.
Therefore, the above articles secured from the possession of the appellant are coming within the above mentioned definition.
33. Now we will take up the defence of the appellant. The appellant took the defence that on 30-3- 1997 at 2-00 p.m. He was arrested from his house. He was taken to the police station where the police demanded illegal gratification from him but he could not produce the same; therefore, he was involved in the present case. The point is, whether the appellant was able to prove that he was arrested on 30-3-1997 at 2-00 p.m. In his support, he did not examine any witness but the absconding accused Muhammad Umer examined himself on oath and examined one witness Muhammad Rafiq. The statement of the absconding accused Muhammad Umer reveals that on 30-3-1997 at 3-00 p.m. He was arrested from his house and while he was being 'taken to police station, on the way the appellant was arrested from his house. From this statement it is clear that the appellant was arrested after 3-00 p.m. However, the statement of appellant shows that he was arrested at 2-00 p.m. The statement of the appellant further reveals that when he was taken to police station the absconding accused Muhammad Umer was present in the lock-up. Whereas the absconding accused in his statement stated that the appellant was with them in the police mobile after his arrest and then they both were confined together in the lock-up by the police. Thus, the defence taken by the appellant has not been proved in this case.
34. After considering the material available on the record, we are of the considered view that the prosecution have proved the case against the appellant, therefore, the appellant was rightly convicted by the trial Court.
35. As regards the sentence, the learned Advocate for the appellant has stated that the appellant has suffered the agony of the trial for 6 years, therefore, some concession may be extended to him.
We are aware of the fact that the appellant was arrested on 31-3-1997. The charge was framed after 3 years and finally the trial Court announced the judgment on 24-72003. As such, the appellant has suffered the agony of trial for six long years. During that period, he must have suffered mentally, physically and financially. The trial Court has awarded sentence of five years.
The maximum sentence of the offence is seven years. The appellant has remained in jail for a period of about two and half years as per case diaries. Therefore, keeping in view the above circumstances, we find that in the circumstances of the case sentence of 3 years would meet the ends of justice. Accordingly, the sentence of 5 years is reduced to 3 years with benefit of section 382-B, Cr.P.C.
36. With the above modification in the sentence, the appeal is dismissed.
Sentence reduced.