MUSHTAQ MUSTAFA vs THE STATE

' SH. RIAZ AHMED, J.---This appeal through leave of this Court is directed against the judgment and order, dated 24-1-1991 delivered by the Punjab Special Court, Multan, convicting the appellant on the charge under section 13 of the Arms Ordinance, 1965 and the order, dated 5-7-1993 delivered by a learned Single Judge of the Lahore High Court at Multan whereby the appeal filed by the appellant assailing his conviction was dismissed.

2. The prosecution case in brief as disclosed in the F.I.R. And through statements of Iqbal Hussain P.W.1 and Nazir Hussain S.I. P.W.3 was that on 6-10-1989 at about 6-45 a.m., they were holding a Naka near the Jheel Morr, Sher Shah Road, Multan Cantonment when a Toyota car driven by the appellant was checked. During the checking an unlicensed kalashnikov and 28 live bullets were recovered from the body of the car, which were seized vide recovery memo and since the appellant failed to produce any licence, therefore, he was arrested and was sent to the Special Court to face his trial on the charges under section 13 read with section 9 of the Arms Ordinance.

3. The prosecution sought to establish its case through two recovery witnesses, both police officers, i.e, Iqbal Hussain P.W.1, a Foot Constable and Nazir Hussain, Sub-Inspector, P.W.3, who were members of the police party holding a Naka. The learned trial Judge, who had the opportunity to hear and observe the demeanour of these witnesses, came to the conclusion that their statements were inspiring and they were truthful witnesses and despite gruelling cross-examination, nothing could be elicited by the defence to shake their credit. When examined under section 342, Cr.P.C., the appellant denied the charge and sought to produce defence witnesses. The appellant in his defence stated that he was a practising Advocate and on 4-10-1989 at about 2.00 p.m. He was arrested from the premises of the District Courts from his Chamber and his arrest, was witnessed by Pir Nazar Sajjad Qureshi, D.W.1, Mohib Ali Khan, D.W.2 and Syed Amir Shah, Advocates. Amanullah Farooq, D.W.3 also entered the witness box and stated that on 5-10-1989 he had seen the appellant in custody of the police when they had come to the Multan Law College. It may be stated here that D.W.3 is the Administrative Officer of the Law College.

4. Having heard the learned counsel for the appellant at length and having gone through the judgments and record of the case, we are of the view that it was rightly concluded by the Trial Court as well as the Appellate Court that the defence plea was devoid of force. The arrest of an advocate from the premises of the District Courts in Multan on trumped up charges would have stirred the lawyers' community as well as the other officials working in the said premises. The offices of the Deputy Commissioner, the Commissioner and the Superintendent of Police are not far off from the District Courts. None of the advocates protested nor did they inform their brother lawyers and no information was passed to the higher authorities with regard to the alleged highhandedness of the police. The silence on the part of the Advocates, who appeared in defence, takes bottom out of the prosecution case. It is further pertinent to mention that the appellant was also facing his trial on another charge under sections, 392 and 397, P.P.C. Vide F.I.R. No,214 of 1989.

5. Considering all the pros and cons of the case, we find that the conviction of the appellant is justified on the record of the case and we do not find any merit warranting interference by this Court. As far as the identity of the appellant is concerned, the same also stands established by the defence version because according to the defence witnesses the appellant was in police custody.

We have no manner to doubt about the involvement of the appellant in this case and, thus, this appeal fails and is hereby dismissed.