GUL MARJAN Versus STATE

MIAN ABDUL KHALIQ, J: -- Gul Marian son of Khan Zad Khan, caste Pathan, resident of Yaqoobi Banda, District Karak (N.-W.F.P.) at present resident of Chak No.140-A, Police Station Liaqatpur, District Rahimyar Khan, was convicted and sentenced to suffer 5 years' R.I. plus a fine of Rs.30,000, or in default whereof to suffer further R.I. for one year vide judgment dated 15-11-1992 passed by Mian Nusratullah, Judge, Special Court, Suppression of Terrorist Activities No.VIII, Bahawalpur Division, Bahawalpur for possessing unlicensed sten gun alongwith three magazines, one containing 10 live bullets.

2. Shortly, the prosecution case is that P.W.3 S.I./S.H.O. Azizullah Khan on 11-8-1992 at about 10-00 a.m. alongwith other police officials was present on patrol duty at Walhar Railway crossing when an informer informed that a person who dealt in illicit arms, was coming on the Pacca road from the side of Mauza Bandoor Abbasian and was carrying in his left hand a fertilizer bag and while reaching near the police party was stopped. The bag was searched and from therein an unlicensed sten gun P.1 alongwith three magazines P.2/1-3 and one magazine which contained 10 live bullets P.3/1-10, were secured by P.W.3 Aziz Ullah Khan, S.H.O. vide memo. Exh.P.B., as the appellant could not produce any licence. The appellant was challaned and sent up for trial. A charge under sections 8, 9, 13 of the Arms Ordinance XX of 1965 was framed against him, to which he denied and claimed trial.

3. The prosecution in order to prove its case produced P.W.1 Muhammad Arshad, A.S.I., P.W.2 Ijaz Hussain, A.S.I. and P.W.3 Aziz Ullah Khan, S.I./S.H.O. P.W.1 Muhammad Arshad, A.S.I. drafted formal F.I.R. Exh.PA./1 on i1-8-1992 on receipt of complaint Exh.PA. from P.W.3 Aziz Ullah Khan, S.H.O. P.W.2 Ijaz Hussain, A.S.I. was with the police party on 8-2-1992 headed by P.W.3 on Gasht on a police vehicle and at about 10-00 a.m. at Railway crossing Walhar, a Mukhbar passed some information to P.W.3, on which they proceeded towards Mauza Bandoor Abbasian, and from a distance of two furlongs they witnessed the appellant coming from the opposite side with a polythene bag in his hand, who was stopped and interrogated by P.W.3. The appellant disclosed his name and on his personal search sten gun P-1 alongwith three magazines P.2/1-3, and the biggest one containing 10 live bullets P.3/1-10 wrapped in a polythene bag PA for which the appellant could not produce any licence. P.W.3 Aziz, Ullah Khan secured P.1 to P.3 vide memo. Exh.P.B. attested by him P.W.2 Ijaz Hussain and P.W. Abbas Mustafa (given up). On personal search of the appellant, a licence of gun P.5 and Rs.200 were recovered from him which were secured by P.W.3 vide memo. Exh.P.C. attested by P.W.2 Ijaz Hussain, A.S.I. and P.W. Abbas Mustafa (given up). P.W.3 Aziz Ullah Khan S.I./S.H.O. narrated the facts mentioned by him in complaint Exh.PA. and stated that the accused/appellant could not produce any licence of crime property. He secured the same alongwith polythene bag i.e. P.1 to P.4 vide memo. Exh.P.B. P.W.3 also made personal search of the appellant and secured licence of a gun P.5 and Rs.200 vide memo. Exh.P.C. and after completion of the investigation had challaned the appellant.

4. The appellant while making his statement under section 342, Cr.P.C. denied the prosecution evidence against him and stated that he had been falsely involved in the case by Aziz Ullah Khan, S.I./S.H.O. (P.W.3). for the reason that in the year 1989 when he was posted as A.S.I. at Police Station Liaqatpur, called the appellant and pressurised him to pay Rs.20,000 to one Rashid Ahmad, Zamindar-cum-businessman and Akhtar Zamindar of Liaqatpur, but he refused. In those days Aziz Ullah Khan, S.I. (P.W.3) called him several times and pressurised him to make. payment of the said amount. The appellant even reported the matter to the Anti-Corruption Department, Rahimyar Khan, but the matter was compromised. Thereafter, on 27-5-1992 P.W.3 reached Liaqatpur alongwith Ijaz Hussain A.S.I. (P.W.2) and two other constables and arrested him and took him to Police Station Kot Sabzal. On 8/9-8-1992 the appellant's father and others came to the Police Station Kot Sabzal, P.W.3 demanded Rs.60,000 from them, i.e. Rs.20,000 for Rashid and Akhtar, cited above and Rs.40,000 for himself. On that his cousin Ghazi Umar Jan paid Rs.6,000 to them on 10-8-1992 and P.W.3 involved the appellant in the present case.

5. The appellant appeared before the trial Court as D.W.1 and made statement as laid down under section 340(2), Cr.P.C. and stated that his statement under section 342, Cr.P.C. be considered as part of his statement. D.W.1 Nazir Ahmad stated that on 27-7-1992 at about 2-30 p.m. when he got down from the wagon near the shop of Aslam, cousin of the appellant, he witnessed the appellant alongwith a policeman, going towards Police Station Liaqatpur, and on his query, Aslam informed him that he was not aware that which police had taken the appellant. D.W.1 alongwith father of the appellant and Ghazi Umar Jan, cousin of the appellant reached the Police Station Kot Sabzal on 27-7-1992 after making inquiries, and there he was informed about the presence of the appellant in the police lock-up. Moharrir/Head Constable had told them that as the appellant had refused to make payment to Rashid Ahmad and Akhtar of Liaqatpur, who had friendly relations with Aziz Ullah Khan (P.W.3). The appellant had' been detained in the said police station. Ghazi Umar Jan had informed D.W.1 Nazir Ahmad that Ashiq, Moharrir H.C. told him that if he would bring Rs.40,000, then the appellant could be let off, otherwise he would be involved in some false case.

6. The learned counsel contended that there was absolutely no sufficient evidence to connect the appellant with the commission of the crime and it was mandatory for the prosecution to have joined the public witnesses when the recovery was effected. The learned State counsel submits that the recovery of sten gun P.1 alongwith 10 live bullets P3/1-10 from the possession and control of the appellant was made. The prosecution evidence was worth reliance.

7. We have heard the learned counsel for the parties at some length and have perused the record with care. We do believe the evidence deposed by P.Ws.2 and 3. It was proved beyond doubt that sten gun P.1, magazines P.2/1-3 and 10 live bullets P3/1-10 were recovered from the possession and control of the appellant. Neither any shop nor house was situated near the place from where the recovery of crime property was effected from the appellant. P.W.2 has stated during cross-examination that they had reached the Railway crossing Walhar. The same was open and at that time there was one person on duty. There was a hotel near the Railway crossing, but that was closed at that time. There was an oil agency near the Railway crossing. There is a Basti of Tailis at a distance of about one furlong from the Railway crossing. Mauza Bandoor Abbasian is at a distance of 3 kilometres and not 3 furlongs from the Railway crossing Walhar. P.W.3 stated during cross-examination that there was one employee of the Railway who was. on duty at the Railway crossing. There was a hotel near the Railway crossing, but the same was closed. There was an oil tank lying near the Railway crossing, but at that time there was nobody near the oil tank. There was no heavy traffic. Only one bus used to pass and return in a day. He did not associate anybody from the nearby Abadis and Factories because the same were at a distance of 2 to 4 kilometres. P.W.3 in the circumstances could not associate any public witness in the recovery proceedings. The police officials are as good witnesses as public witnesses, unless it is proved that they have animus against the accused and a motive to falsely involve the accused in. the case. There is absolutely no reason to disbelieve the testimony of the aforesaid witnesses, because every person including the police officials are competent witnesses unless it is shown that they are interested or inimical. No such enmity or motive for false involvement of the appellant in the case was shown by the defence on the part of the police. This being so, in our view, the conviction was rightly recorded against the appellant. However, in the peculiar circumstances of the case, we have been persuaded to hold that the sentence awarded to the appellant is excessive. Accordingly, while maintaining the conviction and sentence we reduce the sentence of the appellant from 5 years to 3 years' R.I. He shall also be extended the benefit of section 382-B, Cr.P.C. and the amount of fine shall be reduced to Rs.5,000. In case of non-payment of fine, the appellant shall suffer 6 months' R.I. further. With this modification in the sentence, there is no substance in the appeal, which is dismissed.

N.H.Q./G-169/L Sentence reduced.