KHAIR MUHAMMAD Versus THE STATE
1. RASHID AZIZ KHAN, J: -- The facts leading to the filing of this jail appeal are that Khair Muhammad was sent up for trial by Police Station Mochh, District Mianwali, for an offence under section 13/20/65, Arms Ordinance, 1965. Special Court No.2 (Suppression of Terrorist Activities), Sargodha Division, Sargodha, vide its judgment, dated 26-11-1991 convicted and sentenced him under section 13 of the Arms Ordinance to five years' R.I. and a fine of Rs.10,000, in default to suffer one year's R.I. He was however given the benefit of section 382-B, Cr.P.C. Convict has appealed. This judgment shall dispose of the same.
2. The prosecution story in brief was that Ahmed Yar, S.H.O. with other police contingent on 5-7-1991 was present in village Maddadwala, in connection with the investigation of a case bearing F.I.R. No.123. Khair Muhammad accused was found carrying Klashnikov P.1 with 25 live cartridges P.2/1-25. He was also carrying a bag which contained three magazines P.3, P.4 and P.5 with 25 live cartridges each P.3/1-25, P.4/1-25 and P.5/1-25, and 580 live cartridges P.6/1-580. He could not produce any licence for the same, therefore, these articles were taken into possession vide memo. Exh.P.B., which was attested by the other witnesses. A complaint Exh.PA. was drafted and sent to the police station for the registration of case. After usual investigation he challaned the accused.
3. The prosecution in order to establish its case produced four witnesses in all. P.W.1, Zafar Iqbal, had drafted formal F.I.R. Exh.P.A./1 on 5-7-1991. Sher Muhammad, A.S.I., P.W.2 was present with police party. They went to the Dera of Muhammad Nawaz at village Maddadwala in connection with the investigation of a case. He witnessed the recovery of fire-arm at the instance of the appellant and had signed the recovery memo. Exh.P.B., as well. Ahmed Yar, S.I., P.W.3, had gone to the village Maddadwala and effected the recovery of fire-arm at the instance of Khair Muhammad appellant. He prepared recovery memo. Exh.P.B. and got it attested from the witnesses. After usual investigation he challaned the accused.
4. Khair Muhammad Armourer, P.W.4, had examined Klashnikov P.1 and opined that it was in working condition.
5. At the conclusion of the prosecution evidence appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. In answer to a question he stated that he was a Fisherman by profession. On the fateful day he was fishing in the Nullah when the police party had an encounter with one Saif Ullah and he got injured in the said transaction.: The police in order to cover up their responsibilities got the present case registered.
6. It was contended by the learned counsel for the appellant that the case against him was not proved at all. Submitted that the police had raided the said village where an encounter took place in which one Saif Ullah lost his life. Thereafter, the appellant was arrested. Argued that the story given by the prosecution was highly improbable because no weapon was recovered from near the dead body of said Saif Ullah. Submitted that the occurrence had taken place in village Maddadwala yet nobody from the village was associated to witness the recovery proceedings. Submitted that the sentence awarded to the appellant in any case is too severe.
7. We have heard the learned counsel and gone through the evidence with his assistance. We may point out at the very outset that neither the appellant in his statement under section 342, Cr.P.C. had stated nor in cross-examination of the eye-witnesses they had been suggested enmity of the witnesses with the appellant. No motive on the part of the witnesses for giving false evidence has even been suggested. In the absence of that we have no hesitation in holding that the witnesses had no motive for false involvement of A the appellant. The police had gone to the Dera in connection with another case in which a police encounter also took place wherein the appellant was also injured. If the appellant was innocent he would have been star witness of the prosecution to prove the police encounter. Huge quantity of ammunitions was recovered from his possession which cannot be planted by the police. After going through the prosecution evidence, we hold that it inspires confidence and can safely be relied upon. However, while parting with the appeal, we hold that there is sufficient substance in the argument of learned counsel for the 13 appellant with regard to the quantum of sentence. Therefore, while dismissing the appeal the sentence of imprisonment of the appellant is reduced to four years' R.I. The sentence of fine is also reduced to Rs.2,000, or in default he shall suffer four months' R.I. Benefit of section 382-B, Cr.P.C. shall also be, given to him. The appeal is dismissed in these terms.
8. N.H.Q./K-102/L Sentence reduced.