2010 P Cr. L J 1204
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
ABDUL GHAFFAR ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 58 of 2009, decided on 26th February, 2010.
West Pakistan Arms Ordinance (XX of 1965) ---
----S. 13(d)(e) ---Criminal Procedure Code (V of 1898), S.423(1)(b) ---Possessing unlicensed
arms and ammun ition---Appreciation of evidence ---Accused had not pressed his appeal on
merits, but had prayed for moderate reduction in the sentence ---Under S.423(1)(b), Cr.P.C.,
Appellate Court had the power to reduce the sentence without altering the findings of the
Trial Court ---In the present case appellant had raised contention that the evidence had not
been appreciated by the Trial Court by taking one sided view and contradictions were not
considered, nor benefits of the same were extended in his favour ---Despite s aid assertions, no
specification of such alleged contradictions was provided which were required to be
considered ---Apart from the case, three other criminal cases of Harabah, attempt to commit
qatl-e-amd and assault were registered against accused and wea pon was allegedly recovered
from custody of accused, seemed to be the crime weapon used in commission of said criminal
cases ---Nothing was available on record as to what was the fate of said other cases against
accused and there was nothing on record that accused had been acquitted of the cases
pertaining to major offences ---No grounds were available, in circumstances, to take a lenient
view and while exercising powers under S.423, Cr.P.C. the sentence awarded to accused be
reduced ---Appeal was dismissed.
Wali Khan Nasir for Appellant.
Miss Saima Jamal for the State.
Date of hearing: 30th October, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---Through instant appeal the appellant has prayed for
setting aside of judgment made on 5 -5-2009 by Addi tional Sessions Judge -IV, Quetta,
whereby he has been convicted of the offence under section 13 -E of Arms Ordinance, 1965
whereby sentenced to suffer RI for a period of three years with fine of Rs.5000/ -, in case of
non-payment has to suffer further impris onment fore a period of six months with benefit of
section -382-B Cr.P.C. It is his contention that the trial Court while deciding the case only
took into consideration one side of the arguments and discussed only incriminating evidence,
while failed to con sider the other side, the contradictions and failed to extend the benefit
which was required to be given to him. As such the impugned judgment is unlawful,
unjustified and excessive, thus liable to be set aside.
Counsel for the parties are heard to some extent whereby it was contended by the counsel for
the appellant that he does not want to press the appeal on merits, rather made request for
moderate reduction in the quantum of the sentence. The other side showed no objection on
the same.
As per record an FIR bearing No.99 of 2008 PS Airport District Quetta was registered against
the appellant on 5 -6-2008 for offence under section 13 -D Arms Ordinance. As per contents of
FIR the appellant and one Naseebullah were required in case registered through FIR N o.97 of
2008 for offence under section 17(3) Haraabah and 392, 34 PPC. While at time of arrest as
they made firing on police personnel, who also fired in response of the same, whereby both
the accused persons got injured, an FIR No.98 of 2008 Police Statio n Airport District Quetta
was registered on same date for offence under sections 324, 353, 186, 34 PPC. It is further
alleged therein that at time of arrest the appellant was in custody of one TT pistol 30 bore
with three live cartridges, which were taken into custody. As he failed to produce any licence
or authority for recovered articles, therefore, FIR No.99 of 2008 P.S. Airport District Quetta
was registered and he was also booked in present case. The trial of remaining two cases were
held separately, w hile the case in hand relating to recovery of unlicensed arms and
ammunition is tried separately and decided by the trial court thereby convicted the accused
person/ appellant to undergo imprisonment for a period of three years with fine of Rs.5000/ -,
in default of payment has to further suffer six months imprisonment, this order of conviction
is presently impugned before this court.
In present case the appellant has not pressed his appeal on merits, rather prayed for moderate
reduction in the sentence. U nder section 423 subsection (1) (b) Cr.P.0 the appellate court has
the power to reduce the sentence without altering the findings of the trial Court. Though in
his appeal the appellant has raised contention that the evidence has not been appreciated by
taking one sided view, contradictions are not considered, nor benefits of the same were
extended in his favour. Despite these assertions there is no specification of such
contradictions, which were required to be considered. Apart from the assertions of the
appellant raised in appeal it is to be noted that three cases were registered against the
appellant i.e. FIRs No.97 of 2008, 98 of 2008 and 99 of 2008. The weapon allegedly
recovered from custody of the appellant seemed to be the crime weapon used in commis sion
of the offences under section 17(3) Haraabah and under sections 324, 353, 186, 34 P.P.C.
There is nothing on record that what was the fate of other cases registered against the
appellant and other persons. In present case the appellant has been convic ted for the charge
punishable under section 13 clause (e) of Pakistan Arms Ordinance, 1965, which speaks as
under:
"13(e) has in his possession or under his control any arms, ammunition or military
stores in contravention of the provisions of section -9."
The offences mentioned in the section in clause (a) to (i) shall be punishable with
imprisonment for a term which may extend to seven years or with fine or with both.
Section -9 of the Ordinance speaks as under:
"Section -9 Unlicensed possession of ar ms etc .---No person shall have in his
possession or under his control any arms, or any ammunition or military stores, except
under a licence and in the manner and to the extent permitted thereby."
The two proviso of section -13 provides a term of imprison ment which is not to be less than
three years in respect of such arms and ammunition mentioned therein.
In present case though the recovered arm is TT pistol 30 bore with three live cartridges while
the sentence awarded to him is only three years with fi ne of Rs.5000, in default further
imprisonment for six months, but keeping in view the fact that the appellant has been
allegedly involved in commission of two major offences i.e. of Haraabah and attempt to
commit murder, use of criminal force to deter pub lic servant from discharge of his duties,
while present case is in respect of recovery of weapon from his custody allegedly used in
commission of mentioned offences. There is also nothing on record that he has already been
acquitted of mentioned cases pert aining to major offences. Thus in the circumstances there
are no grounds to take a lenient view and while exercising powers under section 423, Cr.P.C.
the sentence be reduced.
In the circumstances the appeal is dismissed being without merits.
A.R.K./60 /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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