IRSHAD ALI JANWARI Versus THE STATE Muhammad Aslam Zar , Khawaja Shaukat Ali
This jail appeal challenged the conviction and sentence of the appellant, Ghulam Mustafa, who was found guilty by the Special Court, Suppression of Terrorist Activities, for possessing an unlicensed Kalashnikov and ammunition under Section 13 of the Arms Ordinance, 1965. The appellant was originally sentenced to seven years of rigorous imprisonment and a fine of Rs. 30,000. During the appellate proceedings, the appellant's counsel did not contest the conviction on merits but requested a reduction in the sentence, citing the appellant's poverty and inability to pay the fine. Having already served approximately five years of imprisonment, the appellant sought relief. The Court, noting the State's lack of objection and the appellant's lengthy incarceration, upheld the conviction but exercised its discretion to reduce the sentence to the period already undergone. Furthermore, the Court remitted the fine imposed by the trial court. The principle established is that appellate courts may exercise discretion to reduce sentences to the period already served and remit fines when the circumstances, such as the duration of incarceration and the financial status of the convict, warrant such leniency in the interest of justice.
- Can an appellate court reduce a sentence to the period already undergone by the convict?
- Does an appellate court have the authority to remit a fine imposed by a trial court in a criminal case?
- Is a conviction under the Arms Ordinance 1965 sustainable when the prosecution evidence regarding the recovery of unlicensed arms is unchallenged?
- Section 13, Arms Ordinance 1965
- Section 342, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
MUHAMMAD NASEEM CHAUDHRI, J. ‑‑‑ This jail appeal is directed against the judgment, dated 26‑1‑1993 passed by the Presiding Officer. Special Court No.II, Suppression of Terrorist Activities, Sargodha Division, Sargodha whereby Ghulam Mustafa appellant son of Abdullah Khan, Caste Pathan aged 23 years, Cultivator by Profession and resident of village Mochh, District Mianwali has been convicted and sentenced to rigorous imprisonment for a period of seven years and to fine of Rs.30,000 or in default of its payment to further undergo rigorous imprisonment for a period of one year under section 13 of the Arms Ordinance, 1965.
2. The facts giving rise to this appeal are that on 12‑12‑1992 at 5‑55 p.m. Qareeb Ali Shah, S.‑I. P.W.3 was present alongwith Ghulam Shabbir, S.‑I. P.W.4, Mulazim Hussain Shah, S.‑I. P.W. (not produced) and other police officials at 'Pull Saim Nalla', Dada Sher Muhammad, for ' Nakabandi' Ghulam Mustafa appellant arrived carrying Kalashinkove P. I and bag P.2 containing spare mazagine P.3 and 140 live cartridges PA/1‑140. He was apprehended and the aforesaid arms were taken into possession by Qareeb Ali Shah, S.‑I. P.W.3 vide memo. Exh.P.C attested by Ghulam Shabbi:, S.‑I. P.W.4 and Mulazim Hussain, S.‑I. P.W. (not produced). Ghulam Mustafa appellant could not produce the licence for keeping the Kalashinkove and the cartridges in his possession. He drafted complaint Exh. P A which was sent to Police Station Mochh, District Mianwali where Muhammad Amir Head Constable P.W.I prepared the formal F.I.R, Exh.P.A./l, Qareeb Ali Shah, S.‑I. P.W.3 prepared site‑plan Exh.P.D. of the place of recovery. He recorded the statements of the P.Ws: Atta Muhammad Head Constable, an armour (P.W.2) examined Kalashinkove P.1 on the basis of the application Exh.P.B. of Qareeb Ali Shah, S.‑I. and found it to be in working conditions with automatic and semi‑automatic actions He issued his report Exh.P.B./1 in the matter. After completing the investigation the challan was submitted before the trial Court.
3. Ghulam Mustafa appellant was charged under section 13 of the Arms Ordinance, 1965. who pleaded not guilty thereto and claimed to be tried.
4. At the trial the aforesaid four P.Ws. stood in the witness‑box and supported the prosecution case. When examined under section 342 of the Code of Criminal Procedure Ghulam Mustafa appellant‑convict refuted the aforesaid recovery of the unlicensed arms. He did not produce the defence evidence and also did not choose to appear in the witness‑box in his defence. After hearing the parties learned trial Court relied upon the statements of the P.Ws. and convicted the appellant as narrated above. Hence this appeal which has been resisted by the State.
5. We have heard the learned counsel for Ghulam Mustafa appellant and the learned State Counsel as well as gone through the record before us. At the very outset, learned counsel for the appellant expressed that he would not argue the appeal in view of the material available against the appellant. However, he made the submission that the quantum of sentence may be reduced to that already undergone by the appellant. He added that the appellant is a poor person and his circumstances are such that he is not in a position to pay the amount of fine. The appellant was arrested on 12‑12‑1992 who was convicted on 26‑1‑1993. Today is 21‑10‑1997. It means that Ghulam Mustafa appellant has undergone rigorous imprisonment for about five years if he is granted the benefit of section 382‑B of the Code of Criminal Procedure. Learned State Counsel, in view of the aforesaid state of affairs, has no objection if the submission made by the learned counsel for the appellant is given the weight and the prayer made in the matter is granted. There is nothing on the record about the circumstances of Ghulam Mustafa appellant to pay huge amount of Rs.36,000 as fine. The maximum punishment for an offence under section 13A of the Arms Ordinance is rigorous imprisonment for a period of seven years and the minimum rigorous imprisonment is for a period of three years or fine or both.
6. The appellant has undergone rigorous imprisonment for a period of about five years and I hold that the ends of justice shall meet if the sentence g awarded to him is reduced to that already undergone by him and the sentence of fine is finished and omitted.
7. For what has been said above, we dismiss this appeal. However, the sentence awarded to Ghulam Mustafa is reduced to that already undergone by him and his liability for the payment of fine is extinguished. The appellant shall be released forthwith, if not required in any other case.
N.H.Q./G‑63/L ?????????????????????????????????????????????????????????????????????????????????? Sentence reduced