KHOBAN Versus STATE
ABDUL REHMAN KHAN, J.-- By the impugned judgment dated 30-4-1995, the ]earned Special Judge, Karak constituted as such under the Suppression of. Terrorist Activities (Special Courts) Act, 1975, found the appellant guilty under sections 13 and 14 of the Arms Ordinance and under each of the said sections sentenced him to four years' R.I. and to pay a fine of Rs.10,000 or in default to undergo further two years' R.I. The sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was also given. Appeal has, therefore, been filed to assail the correctness of the said decision.
2. P.W.4 Amir Atlas I.H.C. reported the incident to the police and alleged therein that he alongwith Constables Muhammad Zahir, Amal Janan, Rasool Ghulam and Ghulam Daud were on patrol in the area when pick-up No.6871 P.U.B. came in a high speed. This pick-up was signalled to stop but it sped up. He and the constables followed it in another pick-up and the pick-up when reached the flour mills was stopped and two persons who were present in the pick-up started running. He alongwith the police party chased them and caught hold of one of them while the pursuit of the other after sufficient distance proved unsuccessful on account of darkness of the night. The pick-up when searched some rifles and some crates containing cartridges were noticed, therefore, it was driven to police station for detail search. On its search in the Police Station 8 Klashnikovs, three rifles of .303 bore, two rifles of other bores while a pistol China-make alongwith the bandolier and numerous cartridges of different bores were recovered. Similarly a plastic bag containing 6 grams of charas was also seized from this pick-up.
3. At the trial the prosecution examined P.W.1, a Magistrate who recorded the confessional statement Exh.P.W.1/1 of the accused-appellant. P.W.2 Amir Nawab S.H.O. of the police station incorporated the Murasila into F.I.R. Exh.P.A. and submitted complete challan in the case. The marginal witness Muhammad Zahir of the recovery memo. appeared as P.W.3 and verified the contents of the recovery memo: as correct. The complainant who is also the Investigating Officer was examined as P.W.4. He almost reiterated the allegations made in the F.I.R. The accused when examined under section 342, Cr.P.C. pleaded innocence and stated that:------
"In fact I had gone to earn my livelihood to District Mianwali pribr to the date of this occurrence. On the date of this occurrence I alongwith my companions namely Afsar Badshah son of Haider Shah resident of Kando Khel, Ghafoor Shah son of Jan Gul, resident of Faqir Abad and Awal Jan son of Jan Gul, resident of Faqir Abad Tehsil and District Karak were on out way back to our home from Mianwali and reached Takht Nasrati Adda in a Bus at about 7-30 p.m. time. We were busy in arranging a special Datsun to go to Kando Khel it being late hours when police party reached there and started enquiry from us. I being Wazir by tribe spoke Pushto in Waziri style on which the police party took me to the Police Station leaving others and there they roped me falsely in the case. In this respect my companions had also submitted application to D.S.P., Karak and I produced photostat copy which is Exh.D.A. I had also submitted an application in this Court on 22-2-1995 which is Exh.D.A/1."
He also produced Afsar Badshah as D.W.1 and Ghafoor Badshah as D.W.2 in support of his plea reproduced above. The gist of the statements of these D.Ws. is that they knew the accused as he worked with them in Mianwali. They were returning from Mianwali to their village and when reached to the Adda of village Takht Nasrati they wanted to engage a Datsun for onward journey. In the meantime the Investigating Officer of this case alongwith constables approached them. According to D.W.1 "They made our search and also checked our identity cards. The accused was having no identity card. 'The police party left us and took the accused to the police station. Later on Khoban sent a message to us that he has been involved in a criminal case." but according to D.W.2 "at that time one I.H.C. and three constables reached there and enquired from us. The police party took away the accused from us saying that he was Wazir by tribe." Both of them stated that they tried to plead the innocence of the appellant before the Investigating Officer and the D.S.P. but they were refused this opportunity.
4. The learned counsel representing the appellant argued that the circumstances in which the report was recorded and the recovery was made appears to be dubious. In this context he referred to the last lines of the F.I.R. wherein it is stated-
He pointed out that as against this P.W.2 deposed that the Murasila was written by the I.H.C. Amir Atlas in the police station and that the case property was also taken into possession in the police station. The marginal witness P.W.3 had also signed the recovery memo. in the police station. He also referred to the cross-examination of the scribe of the Murasila P.W.4 which reads: "It is correct that I had prepared Murasila Ex.P.A/1 and recovery memo. Exh.P.C in the police station." The learned counsel then stressed that in view of the above contradictions the prosecution story cannot be believed and it can be safely inferred that the incident has not taken place in the manner as alleged. It is, however, to be noted that this alleged conflict in the peculiar circumstances of this case is not that much consequential so as to discard the entire prosecution case. The learned counsel was probably oblivious of the contents of the F.I.R. wherein it was stated:----
To the same effect is the statement of P.W.4 in the Court wherein it was stated: "On search of the Datsun I found arms and ammunitions lying in the said Datsun. I then brought the Datsun so apprehended alongwith arms and ammunitions lying therein to police station. On reaching the police station I took into possession the recovery arms and ammunitions, arrested the accused, drafted the Murasila Exh.P.A/1 which is in my handwriting and correctly bears my signature". Therefore, nothing can turn up on the objection raised from the appellant's side as it appears to be in routine manner that the scribe of the Murasila wrote those lines which were referred to by the Advocate for the appellant. It was next contended that there was delay in reporting and registration of the case as the occurrence had allegedly occurred at 6-00 p.m. tile report was made at 8-00 p.m. while the case was registered at 8-35 p.m. This objection is of no significance when viewed in the circumstances of this case. It is admitted position that the appellant was arrested on the spot and it could also not be controverted that he was taken to the police station alongwith the Pick-up from which the recovery was effected. It could, therefore, not be shown as to how the delay, if any, was utilised by the prosecution to implicate the appellant in the case. The non-production of the driver who drove the car loaded with the weapons to the police station was also criticized but we think that it would not detract from the veracity of the otherwise proved prosecution case. The next argument was that the confessional statement of the appellant being exculpatory in nature and also dilatory in character cannot be acted upon. The alleged delay would not affect the voluntary nature of the confession as no evidence could be referred to prove that the delay was used in coercing the appellant to make a confession. It could also not be substantiated that this delay was used to extract confession from the appellant. The Magistrate who recorded the confessional statement appeared as P.W.1 but nothing could be brought on record from him to prove in unvoluntary nature of the confession because of third degree method. The confession was stated to be exculpatory in the sense that initially the accused did not know about the arms and pick-up and it was only on the way that he came to know about the arms in the vehicle. This argument would also not prevail as it is apparent from the perusal of the confessional statement that the absconding accused was the driver of the Datsun who told the accused about the goods to be transported towards Karak and for which the fare was fixed at Rs.6,000. The appellant has otherwise nothing to do with, the Datsun but he was obviously made to share the fare that was fixed for safe transportation and protection of the goods lying therein. If there was nothing illegal about the goods then there was no need to share the fare with the appellant for its safe transportation. However, even if the accused knew about the goods to be arms on the way then he should have got down from the vehicle at the time instead of accompanying the driver all along till he was apprehended. It was in the end argued that the defence witnesses have been disbelieved for no legal reasons and that their deposition would prove the false involvement of the appellant. Besides the contradictions in the statements of the two defence witnesses as highlighted in the impugned judgment these statements appear to be not confidence inspiring and are false in nature. The reasons for the arrest of the accused on the spot by the police as given by the two witnesses besides being contradictory also appears to be to say the least ridiculous. It cannot be shown as to what prompted the police to arrest the appellant out of the lot end to entangle him in a false case. Moreover, it is also not believable that the police would procure such a huge quantity of arms so as to involve the appellant in the case. We are, therefore, of the view that the learned trial Court has rightly appreciated the evidence and has arrived at a correct conclusion. This appeal is, therefore, dismissed.
N.H.Q./1878/P Appeal dismissed.