DIL AGHA vs THE STATE

IJAZ-UL-HASSAN KHAN, J.---Appellant Dil Agha, an Afghan refugee, has preferred instant Jail Appeal No,272 of 2005 to call in question the legality and correctness of the judgment dated 2-11- 2004, passed by Mr. Tariq Pervez Baloch, Additional Sessions Judge, Peshawar, whereby he convicted the appellant under section 5 of the Explosive Substances Act, 1908, sentenced him to suffer 10 years' R.I. And directed that the whole property of the appellant shall stand forfeited to the State. The appellant was, however, extended benefit of section 382-B, Cr.P.C.

2. The prosecution story in brief is, that on the night of 19-12-2003, P.W. Imtiaz Ahmad, S.H.O. Police Station, Kabli along with police party was on routine `gasht', when he received information that a person namely, Dil Agha, required by the police in a number of criminal cases, is about to come to Soekarno Chowk with intent to commit a `wardae. In the meanwhile, at 8-00 p.m. a person alighted from a bus and started walking towards Khyber Bazar. On asking, he disclosed his name as Dil Agha son of Gul Agha, resident of Kabul. His personal search led to recovery of two hand-grenades from the pocket of his waist coat and a pistol of .30 bore with 10 live rounds of the same bore from the fold of his trousers, for which he failed to produce valid licence, as such, memos. Of arrest, recovery and seizure were prepared and the accused appellant was booked for the offence under section 5 of the Explosive Substances Act, 1908. Charge was framed against the accused on 12-5- 2004 to which he pleaded not guilty and claimed trial. During the trial, prosecution examined three witnesses, namely, S.H.O. Imtiaz Khan (P.W.1), A.S.I. Taza Gul (P.W.2) and A.S.I. Zafar Ali (P.W.3) and after tendering in evidence the opinion (Exh.P.W.1/2) of Bomb Disposal N.-W.F.P., Peshawar, the prosecution evidence was closed. The appellant in his statement under section 342, Cr.P.C. Denied the allegations and alleged that he was falsely implicated. He also examined himself on oath.

However, no defence witness was examined. After the conclusion of trial, the appellant was found guilty, and accordingly convicted in the terms as mentioned above.

3. In support of appeal, Miss Farhana Marwat, Advocate, for the appellant contended that the appellant was convicted on highly flimsy, doubtful and interested witnesses of the prosecution, that the prosecution evidence was full of serious infirmities and flaws and the same was not sufficient 10 connect the appellant with the commission of crime; that the provisions of section 103, Cr.P.C. Have been seriously violated and despite availability of independent persons only members of police party were cited as recovery witnesses and .Withholding the public witnesses made the recovery doubtful and that recovery memo. Allegedly was prepared on spot when no F.I.R. Had yet been registered at Police Station concerned, but in spite of that recovery memo. Still bore number of F.I.R. Which shows that all formalities had been completed at Police Station and this fact alone is sufficient to make the recovery doubtful. In the alternative, the learned counsel submitted that the sentence awarded to the appellant is on higher side and the learned trial Judge has acted with impulse and not with a judicial mind. To substantiate the contentions , reliance was placed on cases reported as Abdus Sattar and others v. The State (2002 PCr.LJ 51, Karachi), Muhammad Hanif v. The State (1996 PCr.LJ 706 Peshawar) and (2002 PCr.LJ 1312 Peshawar).

4. Appearing on behalf of the State, Mr. Umer Dad, Advocate, tried to defend the impugned judgment and attempted to argue that the prosecution has brought overwhelming evidence on the file consisting of the statements of P.W.1 and P.W.3 and the report Exh.P.W.l/2, which conclusively connect the appellant with the commission of crime; that the appellant was hauled up red handed having in his possession two hand grenades and a .30 bore pistol with 10 live rounds of the same bore, for which he failed to produce any licence; and there is no such material contradictions, on the basis of which trial of the case can be said to have been vitiated.

5. We have heard at length the arguments and submissions of learned counsel for the parties. We have also gone through the evidence with their assistance.

6. The prosecution in order to prove the apprehension of the appellant and recovery of hand- grenades and a pistol of .30 bore with 10 live cartridges of the same bore, from his possession has produced S.H.O. Imtiaz Khan (P .W . 1) and A . S . I. Zafar Ali (P.W.3) and the positive report Exh.P.W.1/2 of the Expert. Both these witnesses have fully supported the recovery. Their evidence has established that the hand grenades and the pistol in question were recovered from possession of the appellant at the above given date, time and place. Incriminating statements of the prosecution witnesses were enough to connect the appellant with the commission of crime. The defence could not prove as to why police would involve the appellant falsely, especially when none of the police party had any enmity against him. The prosecution witnesses who were police officials, had made consistent statements on material points and the appellant had failed to point out any discrepancy in their statements. Contradictions pointed out by learned counsel for the appellant are so minor that on the basis of those it cannot be held that trial of the accused stood vitiated.

The learned counsel for the appellant has not urged any rancor or animosity against the police officials/P.Ws. A with the appellant. In such-like cases, no presumption can be drawn that the police witnesses were not reliable. It is settled law that police witnesses are competent witnesses in the eye of law and unless it could be demonstrated that police officials had any motive or reason to falsely implicate the accused, their statements could not be discarded only because they happened to be employees of police department. The plea that independent private persons were not made witnesses to recovery, as it was effected from a public place and, thus, the entire case of prosecution had collapsed, is also without substance. The evidence of police personnel cannot be ignored at this stage, as a police man is as good witness as any other person, until and unless evidence is brought on record to discredit his evidence. The learned counsel for the appellant contended that there were some serious lapses in the process of investigation, which had vitiated the trial. However, she has not been able to point out any so-called serious defect in the investigation, other than certain minor lapses, which do not affect the validity of the trial. The ease law cited by the appellant's counsel is distinguishable and proceeds on different facts. It does not promote the case of the appellant in; any manner.

In view of the above discussion, we find no illegality or infirmity in the impugned judgment warranting interference. The appeal fails which is hereby dismissed. As regards, quantum of sentence, we find that the appellant is a previous non-convict. He is a young man and entire future is in front of him. We, therefore, maintain the conviction of the appellant but reduce his sentence from 10 years' R.I. To 3 years' R.I. The sentence regarding forfeiture of the property of the appellant shall remain intact. The appellant shall be entitled to the benefit of section 382-B, Cr.P.C. With this modification in sentence, the appeal is dismissed and the impugned judgment is maintained.