AYUB KHAN vs THE STATE

' SYED YAHYA ZAHID GILANI, J.---This appeal calls in question the conviction of appellant Ayub Khan recorded by Mr. Fayazullah Khan, Judge Anti-Terrorism Court, D.I. Khan vide his judgment, dated 30-6-2008, in case F.I.R. No,80, dated 13-3-2008 of Police Station, Tank, under sections 13/14 Arms Ordinance, 7 A.T.A. And 468/471, P.P.C.

2. According to prosecution case, Zahoor-ud-Din A.S.-I. Recovered eleven Kalashnikovs, eight Kalakovs .222 bore, two pistols in shape of guns, four pistols .30 bore, 83 other pistols .30 bore, 57 pistols .32 bore, 35 pistols .32 bore, four pistols .22 bore, 189 magazines .30 bore, 215 magazines .32 bore, one magazine .32 bore, four magazines machine gun, 2700 rounds .30 bore, 4985 rounds .32 bore, 70 rounds .222 bore, 40 rounds .8 mm, 700 rounds of 7.62 bore and one plastic envelope containing seventeen national identity cards from secret cavities of a Datsun Pick-up bearing No,C-4430 D.I. Khan and the case was registered at Police Station, Tank vide F.I.R. No,80, dated 13-3- 2008, under sections 13/14 Arms Ordinance read with sections 7 A.T.A. And 468/471, P.P.C. The driver of the vehicle namely Ayub Khan was tried and vide judgment, dated 30-9-2008, he was convicted under section 13 Arms Ordinance and sentenced to undergo five years' R.I. And under section 14 Arms Ordinance to undergo two years' R.I. On conviction under section 468, P.P.C. He was sentenced to undergo five years' R.I. And under section 471, P.P.C., sentenced to three years R.I. On further conviction under section 7(h) of Anti-Terrorism Act, he was sentenced to ten years' R.I. With a fine of Rs,1,00,000 and in default of payment of fine, to undergo one year S.I. All the sentences were ordered to run concurrently.

3. We have heard arguments of Mr. Saif ur Rehman Khan Advocate for the convict-appellant and Mr. Sanaullah Khan Shamim Gandapur, D.A.-G. For the State. Record has been gone through.

4. The first leg of arguments of learned counsel for the convict-appellant was that the instant case does not fall in the definition of terrorism nor the Anti-Terrorism Court had jurisdiction to decide it.

The logic behind his arguments was that this was a simple case of recovery of weapons and ammunition, not related to terrorism. We do not agree with his arguments because the scope of terrorism has been explained in various clauses of section 6 of the Anti-Terrorism Act, 1997. The action which creates a serious risk to safety of public is terrorism under clause (i) of subsection (2) of section 6 of the Act punishable under section 7(h) of the Act (ibid). Transportation of such a huge quantity of illicit arms and ammunition can be, by no stretch of imagination, for any lawful activity, peaceful purpose or welfare of the public. The only conclusion can be that transportation involved serious risk to safety of public which is already under wave of extreme terrorism, in our territorial jurisdiction. Therefore, we turn down the plea of learned counsel for the convict- appellant.

5. It was next argued that the recovery is doubtful because provision of section 103, Cr.P.C. Was not complied with. The occurrence took place at a place where many disinterested persons were present around who were not cited as witnesses of recovery.

6. We have considered this point and conclude that in terrorism and narcotics cases, it has been time and again observed by the superior Courts that people do not cooperate and do not consent to be cited as witnesses of recovery because it invites annoyance of people relating to drug Mafia and terrorists which they cannot afford to face. Police witnesses, in such circumstances, are good witnesses unless mala fide is established against them, and their statements are neither contradictory nor infirm , nor having any inherent flaw. Reliance is placed in this regard on the cases of Muhammad Naeem alias Naeema v. The State (1992 SCM R 1617), Feroz Shah v. The State (2002 PCr.LJ 1470) and Muhammad Hanif v. The State (2003 SCM R 1237).##TE#

7. We have examined the statements of P. Ws. Relating to recovery in the present case and could not find any good reason to discard them. They are consistent on material points and intrinsically ring true. Therefore, we hold that they were rightly relied upon by the trial Court.

8. The last argument of learned counsel for the appellant was that the conviction of convict- appellant under sections 468/471, P.P.C. Was wrongly recorded because the ingredients of these sections were not proved. He further argued that the convict-appellant could not be convicted both under sections 13 and 14 Arms Ordinance. In response to these arguments, learned Deputy Advocate General frankly conceded that conviction under sections 468/471, P.P.C. And section 14 Arms Ordinance is not in accordance with law and the convict-appellant deserves acquittal under these sections and his submission is correct.

9. Consequent upon above discussion, we partially accept this appeal and setting aside relevant part of the impugned judgment, acquit the convict-appellant under sections 468/471, P.P.C. And section 14 Arms Ordinance but dismiss the remaining appeal, maintaining the conviction of convict-appellant under section 7(h) of Anti-Terrorism Act, 1997 as well as under section 13 Arms Ordinance.