KHADIM ALI and anothers vs THE STATE

ORDER

' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This petition for special leave to appeal is directed against the judgment of a learned Division Bench of the High Court of Baluchistan, Quetta, in Criminal Appeal No, 102 of 1995, by which the convictions of the petitioners under section 13-E of the Arms Ordinance, 1965, were maintained and their sentences were reduced from rigorous imprisonment for four years to rigorous imprisonment for three years and fine of Rs,10,000 was reduced to Rs,5,000.

2. The prosecution case was that on 22-1-1990, at about 6-00 p.m., an unregistered Suzuki Car was intercepted by Col. Saifullah of the Frontier Corps, Baluchistan, near village Yaro on Chaman- Quetta Road. The search of the car led to the recovery of four Kalashnikovs, four pistols/revolvers with ammunition for which the inmates of the vehicle, namely, Khadim Ali, Abdul Ghaffar, petitioners, and one Maqbool Ahmad, could not produce any license. The matter was later on handed over by Frontier Corps to the local administration of Pashin. In the investigation that ensued Khadim Ali and Abdul Ghaffar were sent up to the learned trial Court to stand their trial. The case against Maqbool Ahmad abated on account of his maurder at Jaccobabad.

3. The prosecution examined before the Special Judge, Suppression of Terrorist Activities, Baluchistan. At Quetta, Mustafa Shah (P.W.1), Khadim Hussain (P.W.2), Maj. Muhammad Shoaib (P.W.3), Muhammad Iqbal (P.W.4) and Ghulam Rasool (P.W.5). The learned Special Judge, seized of the case, by his order dated 25-5-1995 believed the prosecution evidence on proposition No,1 and held that illicit arms and ammunition were seized from the joint and conscious possession of the petitioners. In consequence he convicted both the petitioners under section 13-E of the Arms Ordinance and sentenced them to rigorous imprisonment for four years and a fine of Rs,10,000 each or in default to undergo further simple imprisonment for four months.

4. In support of the petition, Mr. S.A.M. Quadri, learned Advocate-on Record appearing on behalf of the petitioners contended, firstly, that the memo. Evidencing the recovery of the illicit arms and ammunition was prepared after nine days of the occurrence on 28-1-1990 and, secondly, that no proper F.I.R. Of the occurrence had been lodged in the case.

5. A close scrutiny of the record of the case would reveal that a photocopy of the memo. (Exh. P- 4/A) is undoubtedly dated 28-1-1990 but this memo is in fact not the recovery memo. But through this document the recovered illicit arms and ammunition were delivered by the officials of the Frontier Corps to Ghulam Rasool Raisani, Tehsildar Levy Reserve, Quetta, (P.W.5), In point of fact the arms and ammunition alongwith the car and the petitioners were brought to Militia Headquarters and were handed over to Maj. Shoaib FIV(P.W.3) at Quetta who in turn handed them over to civilian authorities. Obviously, the P.C. Authorities have not prepared any memo. And they had delivered the accused as well as the arms and ammunition to the Tehsildar who was competent to register the case and conduct further investigations, In any case, no cross-examination on this point has been made to prosecution witnesses.

6. Reverting to the second contention it may be observed that an F.I.R. Is not in the nature of a formal charge. In Rehman v. State (PLD 1968 Lahore 464) in which implicit reliance was placed on State v. Kh. Nazir Ahmad (AIR 1945 PC 18) it was held and which we also approve that the receipt and recording of an information report is not a condition precedent to the setting in motion of criminal investigation. Notwithstanding the consequence that the defective F.I.R. Or even its absence deprives the accused of his right to cross-examine the first informant on its basis, or it was not at all proved at the trial would not vitiate the conviction, for no information report is substantive evidence by itself. It can only be used under section 157 of the Evidence Act (I of 1872) corresponding to Article 153 of Qanun-e-Shahadat,1984, as a previous statement to corroborate or contradict a statement made in Court. Without diminishing the importance of the F.I.R. No adverse inference can be drawn from the defective report photo copy Exh.P/A-5, so as to vitiate the trial of the petitioners. This plea was pressed into service before the High Court which was rightly repelled holding that the photo copy of the report Exh.P/5:-A would certainly qualify, to be a report notwithstanding its being not in the prescribed form. Nonetheless it is an information of the commission of the offence of trafficking in the illicit arms and ammunition within the purview of section 13-E of the Arms Ordinance, through which the prosecution machinery had been set in motion.

' The legal requirement of enabling the prosecution to take cognizance of the case has thus been sufficiently complied with and no prejudice is shown to have been caused to the petitioners.

7. From the perusal of the record we are satisfied that the petitioners were rightly convicted and sentenced. The submission made in the alternative VMS that the sentence was excessive. Normally, this Court does not interfere in the discretionary question of quantum of sentence. Nonetheless the learned Division E Bench in the High Court had already taken a lenient view of the matter by reducing the sentences of imprisonment and fine.

8. Even otherwise, having regard to the quantity of arms and ammunition sought to be smuggled, the sentences by no means are excessive. The petition has no merit and is accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.