BIBI ROSHAN ARA Versus GOVERNMENT OF SINDH
SH. RIAZ AHMAD, J-- -- The appellant Ijaz Ahmad was tried on the charge under section 13/65 of the Arms Ordinance by a Court constituted under the Suppression of Terrorist Activities Act, 1975 at Gujranwala for having been found in possession of Klashnikov as well as 14 live cartridges P.1/14 without any licence.
2. Vide judgment, dated 22-5-1991, the learned trial Judge found the appellant guilty on the said charge and accordingly, he was convicted and sentenced to undergo rigorous imprisonment for a term of seven years. He was, however, extended benefit under section 382-B, Cr.P.C.
3. In fact, the case against the appellant was offshoot of the main occurrence in which the appellant was convicted and sentenced to undergo rigorous imprisonment for a term of eight years under section 324 of the Qisas and Diyat Ordinance, 1990.
4. The appellant has challenged both the convictions. The conviction under section 324 of the Qisas and Diyat Ordinance, 1990 is a subject-matter of Criminal Appeal No.691 of 1991 while Criminal Appeal No.692 of 1991 has been riled to assail the conviction under the Arms Ordinance which shall be disposed of through this judgment.
5. The prosecution case in brief is that on 4-12-1990, Rashid Ahmad, A.S.I. P.W.2 and other police officials on the receipt of information that a dacoity was being committed in a bus reached the spot where the appellant alongwith his other associates was sitting in a car with the driver of the bus who had been allegedly abducted for ransom. On the sight of the police, the appellant and his associates started firing at the police party. The police party in exercise of right of self-defence fired at them and also fired at the car as a result of which, the tyres of the car burst. At this juncture all the accused persons including the appellant came out of the car and took to their heels towards the fields. The police party chased them and they also informed the nearby police stations and the police officials of those police stations also reached the spot and it was in Village Beguwala where the appellant alonbnvith his companions was encircled which made them to surrender. The appellant was arrested from the fields of Beguwala and a Klashnikov P.1 loaded with six live cartridges as well as Jhola P.2 containing spare magazine P.3 loaded with 8 live cartridges recovered from him were taken into possession vide memo. Exh.P.C. attested by Rashid Ahmad, A.S.I.(P.W.2) and Sadaqat Ali (not produced) besides the 1.0.
6. To prove its case at the trial, the prosecution placed reliance upon the testimony of three witnesses; Ghulam Rasool, Constable (P.W.1) recorded the formal F.I.R. Exh.PA. on the basis of the complaint Exh.P.B. at 5-20 p.m. on the same day. Rashid Ahmad, A.S.I. P.W.2 and Tasaddaq Hussain, S.H.O. F. W.3 are the recovery witnesses.
7. The appellant, when examined, under section 342, Cr.P.C. denied that arms and ammunition were recovered from him and stated that he was falsely implicated in this case at the instance of one Elahi Bakhsh. No evidence was led in defence nor the appellant made statement under section 340(2), Cr.P.C.
8. With the assistance of the learned counsel for the appellant and the State, we have carefully perused the entire evidence on the record and particularly the statements of the recovery witnesses. We have no manner to doubt the testimony of both the police officials who have given circumstances of the case in elaborate manner, therefore, their credibility could not be shaken. The learned trial Judge also summoned the Fire-arm Expert Sh. Abdur Rashid as C.W.1 who stated that weapon P.1 was 7.62 bore rifle and was automatic.
9. The learned counsel for the appellant argued that the recovery is doubtful because it is violative of section 103, Cr.P.C. In the peculiar circumstances of the case when the appellant was a member of unlawful assembly of decoits and was being chased by the police and had been encircled in Village Beguwala, it was extremely difficult to make any public witness to join the investigation nor police had any time or occasion to comply with the E provision of section 103, Cr.P.C. The police party was lucky to have survived and after having been encircled, the appellant had surrendered, therefore, the recovery cannot be doubted. We are, of the view that the prosecution has proved its case beyond any shadow of doubt. Hence this appeal is dismissed. Adverting to the question of sentence, we are of the view that the sentence of 7 years' rigorous imprisonment is severe and, therefore, we reduce it to five years. The appellant shall now suffer rigorous imprisonment for a term of five years.
However, we would direct that the sentence awarded to the appellant under section 324, Qisas and Diyat Ordinance, 1990 passed in Criminal Appeal No.691 of 1991 and the sentence passed in this Appeal (Criminal Appeal No.692 of 1991) under the Arms Ordinance shall run concurrently
N.H.Q./I-90/L ???????????????????????????????????????????????????????????? Conviction upheld/sentence reduced.