2010 M L D 1696
[Quetta]
Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ
Haji MUHAMMAD AZAM ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No.31 of 2010, decided on 14th July, 2010.
Explosive Substan ces Act (XI of 1908) ---
----S. 4(b)---West Pakistan Arms Ordinance (XX of 1965), S.13(e) ---Possession of explosive
substances and arms ---Appreciation of evidence ---Accused had not pressed appeal on merits,
but had prayed for moderate reduction in the sen tences awarded to him by the Trial Court ---
Accused had been convicted for offence under S.4(b) of Explosive Substances Act, 1908
awarded sentence for seven years' R.I. ---Punishment provided for said offence was
imprisonment for life or any shortest term wh ich would not be less than seven years ---Trial
Court having already awarded sentence to accused only seven years, no further reduction
could be made in the sentence ---Regarding other offence under S.13(e) of the West Pakistan
Arms Ordinance, 1965, term of sentence provided therein would be of imprisonment for a
term which could extend to seven years with fine, while in the present case sentence in
respect of said offence was awarded for three years with fine ---In view of nature of offence
alleged against ac cused, no further reduction could be made in the quantum of sentence
awarded to accused and no leniency was required in the matter ---Reduction of sentence was
refused.
Amanullah Baloch for Appellant.
Sardar Ahmed Haleemi, Special Prosecutor ATA.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J .---Instant appeal has been filed by appellant Haji
Muhammad Azam being aggrieved of judgment dated 12 -1-2010, passed by Special Judge,
Anti-Terrorism Court, Khuzdar, whereby he has been convicted under section 4(b) of
Explosive Substances Act, 1908, while sentenced to suffer rigorous imprisonment for a
period of seven years and also under section 13(e) of Pakistan Arms Ordinance 1965,
whereby sentenced to suffer rigorous imprisonment for a period of three years with fine of
Rs.30,000, or in default thereof to further suffer simple imprisonment for a period of two
months with averments that the trial Court has misappreciated the facts and evidence, while
misapplied the law and drawing conclusion which is not in accordance with relevant law.
Further, the contradictions appearing in statement of witnesses are not considered, while
benefit of the same has not been extended in his favour. Further, there is no iota of evidence
or material which can support the observations drawn by the trial Court. There was no
evidence that he was in physical possession of the house in question. Furthermore, the trial
Court did not consider the defence evidence, which was remained unchallenged and
unshattered. He being innocent while falsely inv olved in present case. The recovery of
material was not proved to be recovered from his conscious possession or being shown in
control of him. It was never alleged that he was one of the accused persons, who were
involved in the crime occurred on 22 -6-2008 or thereafter, who managed their escape good.
No material was produced by the prosecution involving him in commission of the crime, as
no person can be convicted for an offence on mere presumptions. The trial Court has failed to
take into consideration th ese material aspects of the case. He has prayed for setting aside of
impugned judgment thereby his acquittal of the charge.
As per record F.I.R. No.126 of 2008 Police Station Hub City was lodged on 22 -6-2008 on
report of Muhammad Amin IP/S.H.O. for offen ces under section 13(e) of Pakistan Arms
Ordinance, read with sections 3 and 4 of Explosive Substances Act, 1908 and section 109,
P.P.C. It was reported therein that after an incident was occurred at Pir Jan Colony Hub
whereby firing was made on police per sonnel by unknown persons, riding on motorcycles
thereby killing and injuring them. Whereafter, on information that the culprits were seen
entering a house adjacent to Sunny Food Hotel, the raid was made, thereby blood -stained
articles, motorcycles, explos ive material and ammunition i.e. hand -grenade, 4.50 Kg
explosive material, 95 cartridges of rifle SMG, three empty magazines of TT pistols, 12 live
cartridges of TT pistol, fuse 19 in numbers, a cutter, a packet of white powder, wire, spring,
disposal mask s, pliers, explosive in shape .of soap were recovered. It is further apparent from
record that as the appellant was recorded owner of the house from where recovery was made,
therefore, investigation was made and on presumption of his involvement in the ins tant case
the appellant was also booked while challan was also submitted to his extent also. As per
record eight persons were challaned in present case for the offences including the appellant.
On completion of trial through judgment made on 12 -1-2010 the accused Muhammad Azam
son of Wali Muhammad, Muhammad Ismail son of Muhammad Ishaque, Muhammad Farooq
son of Ashraf Khan, Muhammad Qasim son of Samand Khan and Abdul Latif son of Syed
Yaqoob Shah were convicted and sentenced under section 4(b) of 'the Explo sive Substance
Act for rigorous imprisonment for a period of 7 years. Further they are found guilty for the
offence under section 9 while sentenced under section 13(e) of Pakistan Arms Ordinance to
suffer imprisonment for a term of 3 years with a fine of R s.30,000 each in default they further
undergo simple imprisonment for two months. While accused Mumtaz Ali, Nazar Ali and
Abdul Sattar were acquitted of the charge. Instant appeal has been filed by only one convict
namely Muhammad Azam.
During course of arguments learned counsel appearing on behalf of the appellant contended
that he does not want to press the appeal on merits, rather prayed for moderate reduction be
made in the sentence. On the other hand learned State counsel though strongly opposed the
appeal on merits, but does not strongly contest the prayer of moderate reduction to be made
in the sentence. In present case the appellant has been convicted for offence under section
4(b) of Explosive Substances Act, 1908 and sentenced for seven years rig orous
imprisonment. He has been further convicted for offence under section 9 of Pakistan Arms
Ordinance, 1965, while sentenced under section 13(e) of the Ordinance to suffer three years
rigorous imprisonment with fine of Rs.30,000.
The appellant is not contesting the appeal on merits, therefore, in the circumstances the merits
are not discussed, nor findings are given on the same. As such order of the trial Court
convicting the appellant is hereby upheld. At this stage the only point, which requires
consideration in the instant case, is that whether the appellant is entitled for prayer of
moderate reduction in the quantum of sentence. As per section 4(b) of Explosive Substances
Act 1908 the punishment provided for the offence is imprisonment for life or a ny shortest
term which shall not be less than seven years. In present case the trial Court has already
awarded sentence of only seven years to the appellant, therefore, keeping in view the
mentioned provision as minimum period of sentence is awarded, there fore, no further
reduction can be made in the sentence. As far as offence under section 13(e) of Pakistan
Arms Ordinance, 1965 is concerned, the term of sentence provided therein shall be of
imprisonment for a term which may extend to seven years or with f ine or with both, while in
present case the awarded sentence in respect of offence is for three years with fine of
Rs.30,000. As the term of imprisonment awarded to the appellant is also of a shorter period.
Thus keeping in view the nature of the offence a lleged against the appellant and the
circumstances as appeared from record no further reduction can be made in the quantum of
the sentence in respect of offence punishable under section 13(e) of Pakistan Arms
Ordinance, 1965. The trial Court has already ta ken a lenient view; therefore, no further
leniency is required in the matter. In the circumstances the prayer of reduction is refused. The
appeal is dismissed while conviction order is upheld.
H.B.T./85/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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