EJAZ MEHMOOD alias NANNA vs THE STATE

' JUSTICE RASHID AZIZ KHAN (MEMBER).---Ejaz Mehmood alias Nanna was sent up by Police Station Batapur, District Lahore, for trial for an offence under section 7 (b), Surrender of Illicit Arms Ordinance, 1991. Special Court for Speedy Trials-II, Lahore, vide its judgment dated 24-10-1991 convicted and sentenced him to imprisonment for life. The convict has appealed. This judgment shall dispose of the same.

2. Prosecution story in brief, as disclosed in complaint Exh.P.A. By Muhammad Feroze, Inspector Anti-Dacoity Staff, was to the effect that on 13-9-1991 at about 6-45 a.m., he along with other police officials was holding a Nakabandi at Bridge Khcra, within the jurisdiction of Police Station Batapur, for the arrest of proclaimed offenders. In the meanwhile, a Toyota Corolla car bearing No,234-191- Karachi came, which was stopped. On checking, appellant Ejaz Mehmood, who driving the said car, was found in possession of a Kalashnikov with a magazine which contained 11 live bullets. He could not produce any licence for the said Kalashnikov. Two other persons were also in the car, from whom stengun and handgrenadc were recovered. All ofthem could not produce licences, therefore, they were separately challaned.

' Muhammad Feroze, Inspector took into possession Kalashnikov P.1 along with magazine containing live bullets P.2/1-11 vide recovery memo. Exh. P.B., signed by Atif Hayat, Inspector, and Shah Muhammad, S.I. P.Ws.1 and 2, respectively. After usual investigation, the accused was challaned and charge against him was framed on 19-104991 under section 7(b) of Ordinance XX, 1991.

3. The prosecution in order to establish its case produced three witnesses. Atif Hayat, Inspector, P.W.1, stated that he had joined the Nakabandi. In his presence, Toyota Corolla Car being driven by the appellant, was stopped and unlicensed Kalashnikov P.1 with magazine containing bullets P.2/1- 11 was recovered. He signed the recovery memo. In cross-examination, he admitted that at the relevant time no witness from public was present. He refuted the suggestion that the Kalashnikov P.1 was not in working order. Shah Muhammad, S.I., P.W.2 was also member of the Nakabandi party.

In his presence, the appellant's car was stopped and unlicensed Kalashnikov P.1 with magazine containing 11 live bullets P.2/1-11 was secured. The recovery memo. Was prepared at the spot, which he signed. In cross-examination, he refuted the suggestion that Kalashnikov was not in a working condition. Muhammad Tariq, A.S.I., P.W.3 stated that on 13-9-1991, he was working as Moharrir. He received complaint Exh.PA at 7-15 a.m. On the basis of which he recorded formal F.I.R. Exh.P.A./1. He also identified the handwriting and signatures of Muhammad Feroze, Inspector.

' At the conclusion of the prosecution evidence, the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. However, he admitted that he was a proclaimed offender in a number of murder cases. He also admitted that a number of criminal cases had been registered against him.

4. It was contended by learned counsel for the appellant that the conviction could riot be sustained because the charge was defective. Argued that there was nothing on record to indicate that the appellant was required to surrender unlicensed arms, because according to section 4 of Ordinance XX of 1991 all persons were required to surrender illicit arms by such time as would be notified by the Federal Government. Since the period during which illicit arms was supposed to be surrendered was not brought on record, therefore, the charge was defective. Argued that the appellant was not put any question in his statement without oath that he failed to surrender the illicit arms, therefore, the same cannot be used against him. Argued that Muhammad Feroze, Inspector did not appear, therefore, neither the complaint nor the recovery memo. Was validly proved. They coulorbe proved by secondary evidence unless some evidence had come on record indicating that the said Inspector was not available. The contentions were controverted by learned counsel for the State.

5. We have heard the learned counsel and gone through the evidence. As far as the contention that Muhammad Feroze, Inspector did not appear, therefore, the recovery memo. Could not be proved which was the only evidence against the appellant is concerned, is without force. P.Ws.1 and 2 Atif Hayat, Inspector and Shah Muhammad, Sub-Inspector had signed the recovery memos. They were also eye-witnesses of the whole proceedings. The memo. Was prepared in their presence.

They have identified their signatures on the memo. By giving an ocular account of the occurrence.

In these circumstances, we feel even if Muhammad Feroze, Inspector, did not appear, it would not adversely affect the prosecution case.

' The other contention of the learned counsel that nothing was brought on record to show that the appellant was required to surrender illicit arms by a certain period is also without force because Ms. Yasmeen Sehgal, learned counsel for the State, produced a Notification by virtue of which every body was required to surrender illicit arms within six days of the issuance of the Notification. The Notification was issued on 9-7-1991, whereas the occurrence took place on 13-9-1991. In these circumstances, even if it was not specifically mentioned in the charge, it cannot possibly prejudice the case of the appellant because he knew it all along for the offence he was being tried. Even otherwise, when a charge is framed under section 7 of Ordinance XX of 1991, it presupposes that the accused was in possession of illicit arms. Learned counsel for the State has also relied upon section 537 of Cr.P.C., according to which even if there was any defect in the charge, it would not vitiate the proceedings. Reliance was placed on Muhammad Aslam v. The State (1991 SCMR 961) and Taheruddin Chaudhry and 3 others v. The State (PLD 1958 SC (Pak.) 76). This also disposes of the contention of the learned counsel for the appellant that no question to the appellant was put in his statement under section 342, Cr.P.C., to the effect that he failed to surrender the unlicensed Kalashnikov. As we have already held that the charge under section 7 of Ordinance XX of 1991 presupposes retaining of illicit arms, therefore, it was not necessary to put the same question.

' As far as the merits of the case are concerned, the prosecution has produced two witnesses Atif Hayat, Inspector, and Shah Muhammad, S.I., P.Ws.1 and 2, respectively. Both of them deposed that when a Toyota Car being driven by the appellant was stopped, he was found in possession of a Kalashnikov. On demand he could not produce any licence. Both the witnesses were cross- examined. No enmity or was suggested to them. It was also not suggested that no Nakabandi had taken place or pleaded not present in the Nakabandi party. The trend of cross-examination further suggests that the recovery of unlicensed Kalashnikov is accepted because both the witnesses were suggested that the Kalashnikov P.1 recovered at the instance of the appellant was not in a working condition. In these circumstances, we hold both the witnesses are reliable and confidence inspiring, therefore, can safely be relied upon.

' However, we have noticed that the quantum of sentence awarded to the appellant is to severe. He has been awarded the sentence of imprisonment for life because it was held by the trial Court that the appellant was involved in a number of criminal cases. Neither any F.I.R. Nor record of the Court below, where criminal cases were pending against him, was produced. Therefore, a finding that hea desperate criminal involved in a number of criminal cases cannot be given, is which was the basis for awarding the imprisonment for life.

For what has been discussed above, we hold that the prosecution has been able to prove its case beyond doubt. While dismissing the appeal, we reduce the sentence of imprisonment for life to ten years' R.I. The appeal is dismissed.

Sentence reduced.