MUHAMMAD IQBAL Versus STATE
SH. RIAZ AHMAD, J.--- Appellant Muhammad Saleem was tried by a Special Court constituted under the Suppression of Terrorist Activities Act, 1975 at Gujranwala on the charge under section 13 of the Arms Ordinance for having been found in possession of a Klashnikov and 16 live cartridges for which he had no licence. Vide the judgment impugned dated 9-4-1992 the learned trial Judge held the appellant guilty on the said charge and convicted and sentenced him to undergo R.I. for four years, and to pay fine of Rs. ten thousand (Rs.10,000), or in default thereof to further undergo R.I. for six months. Benefit under section 382-B, Cr.P.C. was also granted to him.
2. Aggrieved by his conviction and sentences, the appellant has preferred this appeal, which shall be disposed of through this judgment. Prosecution case in brief as narrated in the complaint Exh.P.B. by Muhammad Saleem Inspector, S.H.O., Police Station, Model Town, Gujranwala was that on 3-2-1991 he was on patrolling duty alongwith other police officials, and when they were going on the bypass road near Steel Mills, they noticed the appellant coming from the side of the steel mills having Chaddar around him. On the sight of the police party the appellant turned back and tried to run away, which aroused suspicion of the police officials. Thus, the appellant was apprehended, and on his personal search, a Klashnikov loaded with 16 live cartridges was recovered, which he had concealed underneath his Chaddar. Since the appellant did not possess any licence, therefore, the S.H.O. drafted the complaint Exh.P.B. and sent the same to the police station for the registration of a formal F.I.R. which was drawn there by Sub-Inspector Syed Ijaz Hussain Shah P.W.1 the same day at 3-15 p.m.
3. Muhammad Akram, Constable P.W.2 and Muhammad Saleem, Inspector S.H.O. P.W3 appeared to support the prosecution case. Muhammad Hanif Naseem, Fire-arms Expert appeared as P.W.4 to depose about the nature of weapon, and opined that the weapon P.1 was an automatic weapon of 7.62 mm bore which is commonly known as Klashnikov. Sub-Inspector Muhammad Latif was given up.
4. To prove its case at the trial the prosecution placed reliance upon the statements of P.Ws.2 and 3 respectively, who fully proved the recovery. They were cross-examined at length.
5. When examined under section 342, Cr.P.C. the appellant stated that Malik Steel Mills belongs to his brother-in-law Haji Muhammad Akbar whose car was stolen, and the appellant got a case registered in that connection. According to appellant, his brother-in-law Haji Muhammad Akbar informed the police that Saleem Khurshid, Samson Rohail, Haroon Masih and Gullam Younas had been visiting the factory. They were bad characters, and that they should be joined with the investigation. The police accordingly made them to join the investigation, and the stolen car was recovered from them. Klashnikov and sten gun was recovered from Saleem Khurshid. According to appellant, all the four accused persons were brought to the factory by the police, where the police demanded the illegal gratification from Muhammad Akbar as a reward for the recovery of his car, to which, the appellant objected, and thus hot words were exchanged over it between the appellant and Sub Inspector Latif and Akram, Constable. The police officials threatened the appellant while leaving the factory. Thereafter, the appellant was arrested from his house and was implicated in this case. The investigation of this case was conducted by Malik Habib, D.S.P. who found the recovery as false, and held the appellant innocent after recording the statements of various persons of the area.
6. In defence the appellant produced Malik Habib Khan, D.S.P. as D.W.1 who stated that on 22-3-1991 on the basis of an application submitted by Haji Muhammad Akbar he had investigated the cases. According to D.W.1 he had summoned Muhammad Saleem, Inspector S.H.O., Constable Muhammad Akram and Sub-Inspector, Latif. Apart from recording their statements, statements of other persons were also recorded. According to D.W.1, Klashnikov was recovered from one Saleem Khurshid and not from the appellant. In cross-examination, D.W.1 admitted that the D.I.-G. had sent this application to him on 27-3-1991 as D.S.P./C.IA. and not by name. He was transferred and took over the charge as D.S.P/Civil Lines, Gujranwala on 8-4-1991, but he continued conducting the investigation even after his transfer. D.S.P. further submitted that he did not interrogate the accused Saleem Khurshid, nor did he examine the appellant before the submission of his report. He had directed the S.H.O. in the Zimni to challan Saleem Khurshid and to get the appellant discharged.
7. The learned trial Judge summoned another D.S.P. namely Zameer Ahmad, D.S.P. as C.W.1 who stated that the reinvestigation conducted by Malik Habib, D.S.P. was mala fide and that he had fabricated the statements of Muhammad Akram and Ata-ul-Mohsin, Constables and Muhammad Latif, Sub-Inspector. According to C.W.1 D.W.1 Malik Habib Khan had no authority to conduct the investigation after his transfer.
8. Learned counsel for the appellant contended that the statement of Malik Habib, D.S.P. belied the prosecution case and therefore the same should be believed to discard the prosecution evidence. After careful consideration of his statement, we are of the view that no credence can be attached 'to the statement of Malik Habib, D.S.P. D.W.1 because the statement of Muhammad Akram, Constable belied him. Furthermore, he had no authority to carry out the investigation after his transfer. In fact, it seems that there was some collusion between Haji Muhammad Akbar brother-in-law of the appellant and Malik Habib, D.S.P., and thus we have no hesitation in discarding the evidence of Malik Habib, D.S.P.
9. It was next contended that the recovery of Klashnikov was in violation of section 103, CIY.C. The contention has no force, because no search was being made. Appellant's behaviour aroused the suspicion of the police party, as a result of which the appellant was apprehended, and from underneath his Chaddar, an unlicensed arm and ammunition was recovered. In this view of the matter, we have no manner of doubt that the prosecution has proved its case beyond any shadow of doubt. Consequently, this appeal fails and is hereby dismissed. However, the question of sentence requires interference. Thus, we reduce the sentence of the appellant from four years' R.I. to three years' R.I. Sentence of fine is also reduced to Rs. two thousand only (Rs.2,000) from ten thousand rupees as awarded by the trial Court. In default of payment of fine, the appellant shall suffer R.I. for six months. He shall also be entitled to the benefit under section 382-B, Cr.P.C. In Criminal Appeal No330 of 1992 the appellant was also sentenced to three years' R.I., therefore, we direct that the sentences in both the cases shall run concurrently.
N.H.Q./M-994/L Sentence reduced: