HAKIM KHAN vs The STATE

' TARIQ PARVEZ, J.---The appellant Hakim Khan, besides being charged in two other connected F.I.Rs,, was charged in case F.I.R. No,42 dated 16-6-2004 registered under section 4/5 of the Explosive Substances Act. According to the prosecution case, during interrogation of case F.I.R.

No,39, registered under section 7 of the Anti-Terrorism Act, 1997 regarding an encounter which took place on 12-6-2004 in which a proclaimed offender Ali Noor was killed, whereas the accused/appellant-Hakim Ali was injured, the appellant made a disclosure on 16-6-2004 that he and his co-accused Ali Noor had concealed rocket launchers in a Jungle near Gohal, which he could recover. Accordingly, the police led by the appellant to Mouza Bakhuwali got recovered 4 rockets and one launcher from a plastic tora underneath Todda of hill which were taken into possession vide memo attested by the witnesses.

2. Accordingly the case was registered and the accused-appellant was sent up to face trial under the said charge. The prosecution produced four witnesses being Ali Akbar, HC as. P.W.1, Khalil Ahmed, ASI as P.W.2, Muhammad Razzak, BD Expert as P.W.3 and Nazir Ahmad Inspector/SHO as P.W.4 to prove the charge against the appellant. Besides the oral evidence, it also exhibited documentary evidence i,e, Exb.PA to Exb.PD; where after the accused-appellant was examined under section 342, Cr. P.C. Wherein he denied the allegations and claimed the prosecution case to be concocted in order to prevent him from registration of case against police for extra judicial killing of Ali Noor deceased. The appellant neither appeared as his own witness in terms of section 340(2), Cr.P.C. Nor he produced any defence evidence except tendering the copy of statement of Muhammad Razaq (P.W.3) as Exb.DA recorded under section 161, Cr.P.C.

3. Upon conclusion of the trial, the learned trial Court vide judgment dated 30-9-2004 convicted the appellant under section 13-A(1)(c) of the A.O., 1965 and sentenced him to imprisonment for life with direction qua forfeiture of his properties, movable or immovable.

4. Being aggrieved from the conviction/sentence, the accused-appellant preferred Criminal Appeal 432-T of 2005, which has been dismissed by means of the impugned judgment and his conviction/sentence recorded by the trial Court has been maintained.

5. Allegation against the appellant as given in detail in the opening paragraph of this judgment is about the recovery of huge quantity of arms/ammunition including the rocket launcher from the Jungle, that too on his pointation, is under challenge in this appeal.

6. Learned counsel appearing for the appellant at the very outset submits that serious prejudice has been caused to the defence of the appellant because he was not represented by any defence counsel when his appeal was heard by the Division Bench of the Lahore High Court, therefore, judgment in appeal passed by the learned High Court against him is not sustainable in the eye of law. He has added that no person can be condemned unheard and if so, it is against the principle of natural justice.

' On merits, he has argued that no one from public was associated with the alleged recovery of rocket launcher. According to him the appellant was in custody of the, police since 12-6-2004 and was under physical remand, therefore, the alleged recovery on the pointation of the appellant made on 16-6-2004 can be nothing but plantation.

7. On the other hand, learned Additional Prosecutor-General states that the place wherefrom recovery of rocket launcher was made was in the exclusive knowledge of the appellant and it was the appellant who has led the police party to the recovery from such remote area situated on a difficult fare in Jungle.

8. We have heard the learned counsel for the parties and have also carefully examined the evidence available on record.

9. Regarding prejudice being caused to the defence before the learned Division Bench of the High Court, we may observe that the appellant was properly defended before the trial Court where his defence counsel was afforded all and every opportunity to cross-examine the prosecution witnesses. While hearing this appeal, we have heard the learned counsel for the defence at length and with his assistance have reappraised the entire evidence; therefore, any prejudice if caused to the defence, stands cured.

10. We find that recovery as stated by the prosecution witnesses has been made from the concealed place inaccessible to the general public and was within the knowledge of the appellant.

This fact by itself indicates that the recovered arms/ammunition were in his possession and were within the control of the appellant, who has led the police party to the recovery.

11. So far as non-association of witnesses from public is concerned, it has come in evidence, that too in the cross-examination, that there was no inhabitant on or around the place where from recovery was effected, therefore, no witness from public could have been made witness to the recovery.

12. Defence of the appellant is that he has been made accused in this case because when his co- accused Noor Ali (now dead) was illegally arrested and was killed in a fake police encounter, the appellant raised his voice and had challenged the police that he will take legal recourse against them by making an F.I.R. For registration of criminal case against them. This version of the appellant is not supported by any evidence and no evidence has been brought by the defence in support of this version. Admittedly recovery has been witnessed by the police officials but they have no personal reason to falsely depose against the appellant. A careful perusal of the evidence has led us to conclude that there was sufficient direct evidence of the witnesses, who have justified that in their presence, the accused/appellant while in custody had led the police party to the recovery of the arms/ammunition.

' In view of above discussion, we find that there is no merit in this appeal, as such the same is dismissed accordingly.