YOUSIF ALI Versus THE STATE

RAHMAT HUSSAIN JAFFERI, J.‑‑‑ The present appeal is directed against the judgment, dated 22‑5‑1991, passed by the leaned Sessions Judge, Badin, in Sessions Case No.121 of 1988 by which the learned Judge had convicted the appellant under section 13(d) of Pakistan Arms Ordinance, 1965(hereinafter would be referred to as the "Ordinance, 1965"), and sentenced him to suffer R.I. for one‑year with a direction that the sentence should run (hereinafter would be referred to as the "Ordinance, 1965"), and sentenced him to suffer R.I. for one year with a direction that the sentence should run concurrently alongwith the sentence awarded to him in Sessions Case No.120 of 1988 under sections 302, 34, P.PC.

2. The facts giving rise to the present appeal are that on 31‑7‑1998 at 12‑30 p.m. the appellant took the police and Mashirs to his house and produced an unlicensed single barrel gun from under the bed lying in a room of the said house. The Investigating Officer prepared such Mashirnama. The appellant and the property were brought to the police station where the F.I.R. was lodged. After usual investigation, the appellant was challaned in the Court of law where he was tried and convicted, as mentioned above, under the impugned judgment. The appellant was dissatisfied with the said judgment: therefore, he has refer ed the present appeal.

3. We have heard the Advocate for the appellant, State Counsel and perused the record of this‑case very carefully. The learned Advocate for the appellant has stated that the prosecution have examined two witnesses namely. Mashir Noor Muhammad and Investigating Officer, Inspector Abbas Ali; that the Mashir, Noor Muhammad, has not supported the prosecution case, therefore, the solitary statement of Investigating Officer cannot be relied upon as such the case is highly doubtful.

4. The learned State Counsel has conceded the above position and has not supported the impugned judgment.

5. We have given due considerations to the arguments and have gone through the evidence available on the record. We find that the P W.1 Noor Muhammad did not support the prosecution case as he stated that the appellant did not produce any gun in his presence. He dis owned his signature on the Mashirnama. The prosecution did not declare this witness hostile, as such: they accepted his statement. The statement of Investigating Officer Abbas Ali who is complainant, shows that the appellant led the police and Mashirs to his house and produced an unlicensed gun in presence of Mashirs Noor Muhammad and Khuda Bakhsh. His statement is neither supported nor corroborated by Mashir Noor Muhammad as mentioned above. The prosecution has not examined the co‑Mashir Khuda Bakhsh, as such; P.W.1 Noor Muhammad has falsified the stand taken by the Investigating Officer.

6. From the evidence available on the record, we are of the considered view that the case of the prosecution is highly doubtful, therefore, the appellant is entitled to the benefit of doubt.

7. However, it is pointed out that the incident took place in the year 1988, the learned Sessions Judge, Badin, framed the charge on 14‑5‑1989 In the year 1976, an amendment was made, through Act No.L of 1976 to Ordinance, 1965, by which section 14‑A was inserted an the Ordinance Under subsection (2) of newly inserted section 14‑A in the Ordinance, 1965 the cases falling under section 13(d) of Ordinance, 1965, pending in the Sessions Court, in which charges were not framed, stood transferred to the Court of Magistrate. As such, the learned Sessions Judge was required to transfer the case to the Court of Magistrate for trial in accordance with law. However, the learned Sessions Judge continued with the trial of the case, which was against the 'provisions of section 14‑A of the Ordinance, 1965 read with section 29 of Criminal Procedure Code. Thus, the Sessions Court had no jurisdiction to try the case.

8. In this view of the matter the case is required to be remanded to the Court of Magistrate for retrial. However, we are not inclined to do so as the incident took place in the year 1988 and if the case is remanded to the trial Court, then it will again take few years to complete the case. The appellant has already suffered agony of the proceedings since last twelve years. The appellant has been sentenced for one year. The police arrested the appellant in this case on 31‑7‑1988. The trial Court released the appellant on bail on 15‑9‑1990 as such he remained for a period of one year and nine months as an under‑trial prisoner. The trial Court while convicting the appellant did not give him benefit of section 382‑B, Cr.P.'C. After conviction, the appellant remained in custody in custody for about two years more. Thus, the appellant has remained in custody for a period of about three years and nine months which period is even more than the sentence awarded to the appellant under the impugned judgment and the punishment provided under section 13(d) Ordinance, 1965 at the time of incident. Even otherwise, the evidence available on the record and with the prosecution is not sufficient to establish the case against the appellant; as such, it will be an abuse of the process of law if the case is remanded to the trial Court for retrial.

9. Under these circumstances, we do not find it expedient in the interest of justice to remand the case to the trial Court. Consequently, the conviction and sentence awarded to the appellant under the impugned judgment is set aside. The appellant is acquitted of the charge and set at liberty. The appeal is allowed.

10. Above are the reasons of our short order, dated 26‑9‑2003, by which we had allowed the appeal.

H.B.T./Y‑3/K Appeal allowed.