MUHAMMAD YOUNAS Versus STATE

JAWAID NAWAZ KHAN GANDAPUR, J. ‑‑On 14‑8‑1995 the police party, headed by A.S.I. Noor Faraz Khan (P.W.1) was on duty at Police Check post, Pul Balambat, a car, Registration No.ID‑6750, arrived there which was signalled to stop. Instead of stopping the car the driver sped away towards Taimargara. Resultantly it was chased by the Police in a pick‑up. The Police Party managed, finally, to stop the car near "Tablighi Mosque", at Taimargara. At that time the car was being driven by the appellant accused Muhammad Younas. The search of the car led to the recovery of the following arms.‑‑

(1) Kalashnikov No.9083 P.1

(2) ‑do‑ No.2396 P.2

(3) ‑do‑ No.6096 P.3

(4) ‑do‑ No.3404 P.4

(5) ‑do‑ No.2941 P.5

(6) ‑do‑ No.6960 P.6

(7) ‑do‑ No.7078 P.7

(8) ‑do‑ No.2108 P.8

(9) ‑do‑ No.160245 P.9

(10) Rifle China‑made No.22260 P.10

(11) ‑do‑ No.31744 P.11

Since the appellant, on demand, failed to show that he was in lawful possession of the same or that he was lawfully transporting the same, therefore, the appellant was hauld up. Noor Faraz Khan, A.S. I. (P.W.1) took the arm into his possession vide Recovery Memo. Exh.PI/1 and scribed the Murasila (Exh.PA/1) which was despatched to the Police Station through F.C. Beharamand, No.357 where on its basis a case under section 19 of the Arms Act read with section 188, P.P.C. was registered vide F.I.R. No.163 (Exh.P.A.).

2. During the investigation a secret information was received and under the instruction of D.S.P. the car was again searched. Four Klashnikovs and some ammunitions was found hidden in the doors of the car. These were taken into possession vide Recovery Memo. Exh.P3/1. After completing the usual investigation complete challan against the appellant was submitted in the trial Court.

3. In order to prove its case the prosecution produced as many as 5 witnesses who were examined as:‑‑

Noor Faraz Khan, A.S. I. P. W.1.

Muhammad Naeem.H.C. No.247 P.W.2.

Khairur Rehman H.C. No. 1571 P.W.3

Abdul Basir S.I. P.W.4.

Muhammad Zahir Shah S.I. P.W.5.

4. Thereafter, the statement of the appellant was recorded under section 342, Cr.P.C. He refuted all the allegations levelled against him and claimed total innocence. He also opted to depose, on oath, as his own witness under section 340(2), Cr.P.C. and to produce evidence in his defence. Resultantly his statement was recorded as D.W.1, whereas Akbar Khan and Nasir Khan deposed as D. Ws. Nos.2 and 3 respectively.

5. On the conclusion of the trial the counsel for the parties were heard and the trial Court found the appellant guilty of the charge and convicted him under section 19 of the Arms Act and sentenced him to one year R.I. In addition he was sentenced to pay a fine of Rs.5,000 or in default thereof to undergo further R.I. for 6 months. The appellant accused was also convicted under section 188, P.P.C. and sentenced to pay a fine of Rs.100 or in default thereof to undergo S.I. for 15 days. The benefit of section 382‑B, Cr.P.C. was, however, extended to him. The Motor Car as well as the arms and ammunitions were confiscated.

6. Aggrieved by the said verdict of the trial Court the appellant‑accused has knocked at the door of this Court for the redress of his grievance, by filing this appeal.

7. Mr. Fazal Malik, Advocate learned counsel for the appellant and Mr. Abdur Rauf Khan Gandapur learned counsel for the State present and heard. Record of the case perused.

8. The contention of the learned counsel for the appellant before us is that the trial Court had not taken into consideration the defence, evidence, produced by the appellant, which has totally shattered the case of the prosecution. He contended that in view of the evidence produced by the appellant‑accused he (accused) should have been acquitted by extending the benefit of doubt to him. We have, therefore, decided to look into the defence evidence minutely and to find out as to whether or not the defence version is so credible; that it might have created doubt in the mind of the trial Court in order to lead it to the conclusion that the prosecution case had become highly doubtful and resultantly he should have acquitted the accused by extending benefit of doubt to him.

9. It is an admitted fact that arms and ammunitions were in fact recovered from the vehicle which was being driven by the appellant. This fact has‑ also been admitted by the accused‑appellant while he was examined, on oath, as D. W.1. The relevant portion of his statement is reproduced as under:‑‑

10. In cross‑examination he further admitted that he was a taxi driver and that:‑‑

He, however, refuted the allegation that four Klashnikovs as well as chargers, alongwith bullets of 7.62 bore, were later recovered from the doors of the car on 19‑8‑1995. In his cross‑examination he categorically alleged that:‑‑

11. D.W.2 Akbar Khan when examined stated that he was an arms dealer. That on the day of occurrence he was present in his shop. According to him a car was parked near his shop and its driver was standing with it when, in the meantime, the Police Party arrived there. The Police Party picked up some Klashnikovs from the nearby shop, where only one child of tender age was present, and told the driver (appellant) that he had brought the said arms and ammunitions in his car. He, however, refuted the allegation advanced by the police. When cross‑examined this witness admitted:‑‑

12 From the cross‑examination of this witness it has become crystal clear that he himself is an "arms and ammunitions smuggler" and, therefore, it will not at all be safe to rely on his testimony. His testimony is, therefore, discarded.

13. Nasir son of Gul Rehman was examined as D.W.3. In his examination- in‑chief he stated that when the Police Party arrived at the place of occurrence it picked up quite a few Klashnikovs, lying in his shop, and told the appellant that the Klashnikovs were brought by him. We think, in the circumstances, that this witness is a compulsive liar because had it been true then he should/could have taken up the matter with the higher authorities. This was not done for reasons best known to him. It is apparent from his cross‑examination that he neither reported the matter to the D.S.P. nor to the Superintendent of Police. Similarly he also did not inform the District Administration about the highhandedness of the Police. When further cross‑examined he alleged that Akbar Khan as well as a few other persons were present on the spot at the time of occurrence as they had all gathered there and had surrounded the Police vehicle. According to him, the elders of the Illaqa were also present on the spot.

14. It appears that D.W.3 i$ not a truthful witness. He not only stated that arms were picked up from his shop by the Police party but also stated that all this happened in the presence of quite of few people, including the elders of the area, by saying so he has not only contradicted D.W.2 but also D.W.1, both of whom stated that nobody from the public was present on the scene of occurrence. The defence evidence produced by the appellant in the trial Court, to our mind, is not only defective but contradictory in nature and, therefore, does not inspire confidence.

15. The prosecution evidence coupled with the admission of the accused‑appellant, as well as his defence witnesses fully establishes that illegal arms were recovered from him, for which he could produce any valid licence/permit. In the circumstances, we are of the view that he was rightly convicted by the trial Court. The judgment of the trial Court is neither arbitrary nor perverse. Similarly it does not suffer from any illegality or material irregularity, and therefore, it does not warrant any interference by this Court.

16. The appeal being without any merit is accordingly dismissed.

N.H.Q./2098/P Appeal dismissed.