MUHAMMAD ILYAS alias KAKA vs THE STATE

' M. NAEEMULLAH KHAN SHERWANI, J.---Muhammad Ilyas alias Kaka was tried by learned Judge, Special Court, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, Ferozewala, District Sheikhupura for retaining in his possession an unlicensed .222 rifle. The learned trial Judge by virtue of his judgment dated 31-1-2000 found and adjudged him guilty of the said charge, convicted him under section 13 of West Pakistan Arms Ordinance No,XX of 1965 and punished him with rigorous imprisonment for five years benefit of section 382-B, Cr.P.C. Was, however, extended to him.

2. By filing this appeal, the convict has called in question conviction and sentence passed against him through the said judgment.

3. Facts of the case in brief are that the appellant was in police custody in connection with investigation of case F.I.R. No,712 of 1996, dated 22-12-1996, under section 324, P.P.C. Registered against him with Police Station Factory Area, Sheikhupura. He was interrogated and ultimately he led to the recovery of a .222 rifle (P1), which was concealed nearby Motorway under the Bamboo bushes. Seizure memo. Exh.P.B. Was prepared in that regard, which was duly attested by Abdul Latif (P.W.2) and Muhammad Abbas P.W. (not produced). The appellant could not produce a valid licence for retaining in his possession said arm. Consequent upon recovery, a case under the Arms Ordinance stood registered against the appellant. He was challaned to the Court by the Investigating Officer to face his trial as such.

4. Upon receipt of the challan, the learned trial Judge observed all the legal formalities and after framing charge, put the same to the appellant, to which he pleaded not guilty and claimed to be tried. The trial Court then called upon the prosecution to produce the best evidence available at their end to establish the charge beyond any shadow of doubt. In compliance of the direction, prosecution ventured to produce as many as five witnesses in all.

' P.W.1 Mukhtar Ahmad, S.-I. Simply drew up formal F.I.R. (Exh.P.A./1.) at the police station on the basis of complaint (Exh.P.A.) recorded by Rao Abdul Rehman, S.-I. (P.W.4).

' P.W.2 Abdul Latif deposed that he alongwith Muhammad Abbas P.W. Was associated with the investigation by the Investigating Officer. According to him, the appellant while in police custody got recovered .222 rifle (P.1) from Bamboo bushes nearby Eleechi Garden Motorway, situate in the area of Faizpur, which was taken into possession by the Investigating Officer in his presence through recovery memo. Exh.P.B., duly attested by him and Muhammad Abbas P.W.

' P. W.3 Muhammad Aslam, Constable, after receipt of a sealed parcel containing rifle .222, from Muhammad Arsand, Muharrir of the police station, transmitted the same to the office of Forensic Science Laboratory.

' P.W.4 Rao Abdul Rehman, S.-I. Deposed that in the month of March, 1997, investigation of a hurt case was underway with him. The appellant while in custody led to the recovery of .222 rifle (P1) from nearby Eleechi Garden Motorway lying within the Bamboo bushes, in the area of Faizpur, and he took the same into possession through memo. Exh.P.B., duly attested by Abdul Latif (P.W.2) and Muhammad Abbas P.W.(not produced). He drew up complaint (Exh.P.A.) and despatched the same to the police station through Asghar Ali, C.No,1413, for formal registration of a case, which was accordingly done by Mukhtar Ahmad, S.-I. (P.W.1). He recorded statements of the witnesses under section 161, Cr.P.C. And finalized the investigation. He then submitted challan before the Court for trial of the appellant in accordance with law.

' P.W.5 Muhammad Arshad, A.S.-I., while working as MHC at the Police Station Factory Area received a sealed parcel containing rifle .222 from the Investigating Officer and kept the same in police station Malkhana. On 3-5-1997, he handed over said parcel to Muhammad Aslam, Constable for its onward transmission to the office of Forensic Science Laboratory.

5. Learned prosecutor had given up Muhammad Abbas P.W. Being unnecessary and after tendering in evidence report of the Forensic Science Laboratory, Lahore (Exh.P.D.), declared the prosecution case close.

6. The trial Court thereafter examined the appellant under section 342, Cr.P.C. All the incriminating circumstances were put to him so as to seek his explanation with regard to the crime imputed to him. He vehemently controverted all the accusations brought against him and proclaimed his absolute innocence in the matter by stating that "the Investigating Officer made this false case against him in connivance with the complainant party. According to him, no independent witness appeared against him to support the prosecution case. Abdul Latif P.W. Is brother of Abdul Majeed and Abdul Razzaq P.W. In the main case registered under section 324, P.P.C." He did not opt to make a statement on oath as envisaged by the relevant provisions of section 340(2), Cr.P.C.

7. The learned trial Judge upon conclusion of the trial proceeded to convict the appellant in the manner aforementioned.

8. Learned counsel for the appellant vehemently argued that there was violation of section 103, Cr.P.C. And the recovery was fake. It had been planted on the appellant to create corroboration in the connected hurt case. He submits that the witnesses are of partisan character and could not be believed as such. He further submits that the recovery had been effected after a lapse of more than two months from an open and accessible place.

9. Conversely, learned counsel for the State while supporting judgment of the trial Court, submits that the recovery is genuine one, as rifle .222 bore is costly weapon, so it could not be planted by the police for the cause of others.

10. After hearing arguments of both the sides and taking everything into our full consideration all facts and circumstances of the case, we are of the view that only the accused had the knowledge where he had concealed his weapon . It was he who upon interrogation had shown his willingness to lead to its recovery and then out of his exclusive knowledge got the same recovered. No doubt, it is a costly weapon, but the police had no enmity with the appellant to book him in a false case through a fake recovery. The witnesses had no adverse interest as against the appellant. There is nothing to disbelieve them. They appear to be truthful witnesses.

11. We find no merits in this appeal and dismiss the same for all these reasons.