RIAZ ALI Versus THE STATE
1. KAMAL MANSUR ALAM, J.--- This criminal appeal has been filed by the appellant Riaz Ali against the judgment, dated 16-1-1995 passed by the Special Court III (Suppression of Terrorist Activities), Karachi in Special Case No.45 of 1994 whereby it found the appellant guilty of offence under section 13(d), Arms Ordinance and convicted him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000 or in default to suffer further R.I. for one year.
2. The prosecution case, asset up in the F.I.R., is that on 1-8-1994 at about 12-30 a.m. 'in the night, Mr. Ghulam Subhani, then posted as S.-I. in Criminal Investigation Agency (C.I.A.), Saddar, while on patrol duty received spy information that one person was standing near the Mistri Shah Mazar at Clifton, Karachi with a klashnikov, whereupon he proceeded to the place where he found the appellant Riaz Ali from whose possession he secured, in presence of two Mashirs, Saleem Khan and Rajab Ali, one klashnikov rifle loaded with magazine containing ten live bullets. The S.-I: arrested the appellant/accused and forwarded report under section 154, Cr.P.C. to the Darakhshan Police Station which was registered as F. I. R. No. 174 of 1994, dated 1-8-1994, for an offence under section 13(d) of the Arms Ordinance. The appellant was challaned in the Court of Suppression of Terrorist Activities, Karachi where he denied the charge and was accordingly tried and convicted. Before the trial Court the prosecution examined two witnesses P.W.1 Saleem Khan and P.W.2 Ghulam Subhani, P.W. Saleem Khan has supported the case of the prosecution. According to him, on 1-8-1994 at about 12-30 in the night, while he was coming back from the Mazar of Misri Shah after hearing Qawali he was called by the police and in his presence-and that of co-Mashir Rajab, a klashnikov was recovered from the appellant and the Mashirnama was prepared, it was read over to them and their signatures were obtained thereon. He produced the Mashirnama as Exh.4. In his cross-examination this witness admitted that he was residing at a distance of 15/16 kilometres from the place of occurrence, but has explained his presence there by stating that, after every two or three days I go to Mazar to listen Qawali.
3. Mr. Sardar Muhammad Ishaq, the learned counsel for the appellant assailed the prosecution evidence on the ground of inconsistencies. According to him these rendered the very presence of P.W. Saleem Khan at the place doubtful. In this regard he pointed out that Saleem Khan in his examination-in chief stated that, I was coming back from Misri Shah after hearing Qawali and I was called by the police, but in cross-examination he changed his version and said that, I was present at Mazar up to 12-00 midnight. At 12-00 midnight I left the Mazar and reached a nearby hotel for having tea. On this point the only other prosecution witness S.-I. Ghulam Subhani gave a different version, in his cross-examination he stated that:--
4. "It is correct that both the Mashirs are not residents of locality. There was no hotel open near the place of Wardat. I collected both the Mashirs from Mazar who were listening to Qawali at the relevant time. Both the Mashirs were collected outside the Mazar. I did not go inside the Mazar to collect any Mashir. Many people were listening to the Qawali but I chose to cite these two as witnesses."
5. We are unable to agree with the learned counsel that there is any serious inconsistency in the above statements. Apparently, after having tea at the nearby hotel, witness Saleem Khan was passing the Mazar when he was got hold of by the police outside-the Mazar. R.W. Ghulam Subhani does not say that he called the Mashirs from inside the Mazar. In fact he denied such suggestion.
6. Appellant's counsel, next, drew our attention to Saleem Khan's statement in his examination-in-chief to the effect that, the police stopped the present accused in my presence and of co-Mashir Rajab and submitted that the word "stopped" implied that the accused was moving, but according to the deposition of S.-I. Ghulam Subhani, he found the accused standing near the Mazar with a klashnikov in his hand. Here also we find no force in the argument. Saleem Khan was describing the action of the police while Ghulam Subhani the position of the accused. Both may be correct, for, it is possible that the S.-I. saw the accused standing near the Mazar but on seeing police vehicle he might have started moving and was stopped. But even if these be considered as discrepancies, these are of no consequence in the circumstances of the present case. We have not been able to find any material inconsistency in the prosecution evidence. On the other hand it appears that the defence has not been consistent with its stand. In his statement under section 342, Cr.P.C. the appellant does not deny his arrest on 1-8-1994 at 12-30 in the night. While giving the reason for his involvement in the case he stated:--
7. "Munshi Iqbal of C.I.A. who posed himself the blue-eyed boy of Ghulam Subhani Investigating Officer used to come to our Dera and at times he tried to sexually harass the womenfolk of our Dera to which I objected and the elders of my Dera have also objected and many times we reported this matter to the police station but the poor and oppressed people have got no say in the police and therefore, our report was not entertained. Due to this animosity which Iqbal was breeding in his heart this case was brain child of C.I.A. and figment of imagination of C. I. A. people."
8. No such suggestion was made to the prosecution witnesses. On the contrary the suggestion made to P.W. Saleem Khan was that the person arrested was not the appellant but his brother, however, not a word in this regard was said by the appellant in his statement under section 342, Cr.P.C. The appellant also did not offer any explanation for his presence at the said place at 12-30 in the night.
9. It was next submitted by the appellant's counsel that the conviction was liable to be set aside on the ground that the appellant had not been asked to produce licence of the seized weapon. In this regard he referred to P.W. Saleem Khan's statement in his cross-examination to the effect that, it is correct that police had not inquired about the licence or permit in my presence. He contended that as keeping of weapon would be an offence under section 13(d) of the Arms Ordinance only if it was without licence, it was necessary for the police to have asked the appellant about the licence. For this proposition he placed reliance on the case of Ashique Hussain v. State 1.992 PCr.LJ 1998. In that case it appears that the conviction was set aside as there was neither any evidence to show that the accused had ever been required to produce licence in respect of the seized weapon (Chhura) nor was the accused put any question about this under section 342, Cr.P.C. The instant case is distinguishable from the above case. Here, there is ample evidence to show that the appellant had been asked about the licence of the weapon and had been given opportunity to explain his position. According to the Mashirnama the seized klashnikov was without licence and the appellant failed to give any satisfactory explanation about it. Then there is the deposition of S.-I. Ghulam Subhani affirming that "I enquired from him about the licence which he failed to produce". While recording appellant's statement under section 342, Cr.P.C. the trial Court also enquired about the licence but the appellant failed to produce any.
10. Lastly, the conviction was challenged on the plea that the seized weapon had admittedly not at all been sealed by the police. It is true that the klashnikov in question had not been sealed after its seizure, but the markings and number thereon were duly incorporated in the Mashirnama (Exh.4) as well as S.-I. Ghulam Subhani's report under section 154, Cr.P.C. (Exh.7), both of which were prepared at the time of recovery of the weapon, and therefore, in the present case, where the appellant was charged only for the offence under section 13(d) of the Arms Ordinance for having unlicensed weapon, the weapon could be, and in fact was identified with reference to such markings/number. We agree with Mr. Sarwar Khan the learned Assistant Advocate-General, Sindh that sealing of seized weapon/ammunition is necessary where it is alleged to have been used for committing crime and has to be preserved in the condition it is seized.
11. We are, therefore, of the view that the prosecution has successfully brought home the guilt of the appellant. However, we consider that sentence awarded to the appellant is harsh and requires interference. Accordingly we reduce the sentence of seven years R.I. awarded to the appellant by the trial Court to three years' R.I. and similarly reduce the amount of fine from Rs.10,000 to Rs.2,000 and in case of default in the payment of fine the appellant shall suffer simple imprisonment for a further term of six months. We maintain the benefit given to the appellant under section 382-B, Cr.P.C.
12. With this modification in the quantum and nature of the sentence the appeal is otherwise dismissed.
13. N.H.Q./R-197/K Sentence reduced.