MRS. ASHRAF JAHAN, J.---The Appellant after facing trial in FIR No,132/2014 registered at Police Station Gabol Town, Karachi, under section 23 (1)(a) of Sindh Arms Act, 2013 (hereinafter referred to as the "Act, 2013") was convicted vide Judgment dated 31.03.2017 by the Court of Vth Additional.
Sessions Judge, Karachi (Central) and sentenced to suffer R.I. for seven years and to pay fine of Rs,50,000/-. In case of default in payment of fine to further undergo S.1. for six months. The benefit under section 382(b), Cr.P.C. was extended in his favour.
2. Being aggrieved of the said conclusion the Appellant has called in question the legality and validity of the above Judgment by way of present appeal.
3. The facts in a nutshell as per record are that A.S.I. Ali Hassan arrested accused Amjad son of Abdul Wahid in FIR No,131/2014 under section 392/34, P.P.C. and recovered one unlicensed T.T Pistol of .30 bore with magazine containing two live cartridges from his possession. Separate FIR for recovery of unlicensed pistol was lodged at same Police Station as Crime No,132/2014, under section 23(1)(a) of the Act, 2013. The recovered weapon was sealed at the spot and memo. of arrest and recovery was prepared. After completing investigation challan was submitted before the Court of law. The charge against accused was framed on 06.02.2015 under section 23(1)(a) of the Act, 2013, to which he pleaded not guilty and claimed for trial.
4. The prosecution in support of its case examined in all three witnesses. A.S.I. Ali Hassan was examined as Exb.3, who supported the case of prosecution and produced roznamcha entry as Exb.4, mashirnama of arrest and recovery as Exh.5 and FIR No,132/2014 as Exb.6. The next witness examined by the prosecution was Ashiq Hussain as Exb.8, he is Complainant in connected crime under section 392, P.P.C. and mashir of place of sarzamin in the instant case, he produced the mashirnama in respect of place of incident as Exb.9. Last witness examined by the prosecution is P.W. S.I.P. Muhammad Altaf Khan, who is Investigating Officer of this case, he produced the daily diary entry as Exh.12, letter sent to the A IGP, FSL as Exb.13 and report received from FSL at Exb.14. He also produced letter for obtaining CRO of the accused and such letter is produced on record as Exb.15, thereafter prosecution closed its side vide Exb.16 on record. Statement of accused under section 342, Cr.P.C. was recorded on 28.11.2016, wherein he denied the allegations leveled against him by the prosecution and taken the plea that at the time of incident he was in factory, where his attendance was available. He further stated that being innocent he may be acquitted in the above crime. However, he did not opt to record his statement on oath under section 340, Cr.P.C. and also did not examine any defence witness.
5. The learned trial Court after hearing learned counsel for the accused and learned state counsel recorded conviction against the present Appellant vide Judgment referred above, which is impugned before this Court.
6. I have heard learned counsel appearing for the accused as well as learned Additional Prosecutor General. It is contended by learned counsel for the Appellant that the impugned judgment is the result of misreading of evidence and misinterpreting the legal propositions involved. Besides, at the time of examination of P.W. Ashiq Hussain, who is complainant of the connected FIR (FIR No,131/2014), no opportunity was given to the counsel for the accused to cross-examine him. The I.O. of this case has deposed before the Court that investigation of this case was given to him five minutes prior to the lodging of FIR in the instant crime. Above facts reflect that accused has been involved in this case falsely, infact accused was employee in the factory and due to dispute in respect of salary, he has been involved in this case with mala fide intention. He further pointed out that in the connected case (FIR No,131/2014), lodged under section 392, P.P.C., proceedings have been stopped and the accused has been acquitted in that crime.
7. Conversely, it was argued by the learned Additional Prosecutor General that all the prosecution witnesses have supported the case of prosecution, besides Ballistic examination report is in positive; therefore, the trial Court has rightly convicted the Appellant in the above crime.
8. I have considered the arguments advanced before me and have perused the record with the assistance of learned counsel for the parties. As mentioned earlier, in the instant case, prosecution has examined three witnesses in support of its case. The perusal of record reveals that all the witnesses have supported the case of prosecution on all material points. In the instant case P.W.2 Ashiq Hussain is the person from whom on gun point present Appellant along with his other associates had robbed one mobile phone as well as one than {{URDU TEXT}}of cloth, which was lying in his office. The defence taken by the present Appellant is that infact he was employee of the factory and due to some dispute over the salary he has been involved in this false case, but when evidence of this P.W is examined it reveals that he was cross-examined by the accused himself but no suggestion was put to him in respect of such evidence. Thus, it is clear that the allegations leveled in examination-in-chief against the present Appellant connecting him with the commission of crime remained unchallenged in the cross-examination. Same is the position with regard to the evidence of other prosecution witnesses, whose evidence could not be shattered in cross- examination ,on all material points. So far as the contradiction in respect of time is concerned, that too is only of about five minutes. It is observed that at one time two FIRs were lodged so the reply of the I.O. could be the result of some misunderstanding, but nothing else.
9. Admittedly, incident has taken place in day time and the Appellant was arrested soon after the incident of robbery, when he was trying to flee away. No enmity or ill will is alleged against the prosecution witnesses as to why they would involve him in this case. As regards the contention of learned counsel that proceedings in the main case lodged under section 392, P.P.C. have been stopped, is concerned, it is established legal position that each case has to be decided as per its own facts and the material available on record. Stopage of proceedings in one criminal case cannot be made ground for acquittal in some separate crime. Thus such assertion is without any substance and cannot be accepted in the facts and circumstances of the present case.
10. It is important to note that in the present crime recovered weapon was sent for examination and as per report; it was in working condition at the time of examination and was loaded with two .30 bore live cartridges. The perusal of Judgment of the trial Court reveals that all aspects of the case were thoroughly discussed and it is based on logical reasoning.
11. It will be relevant to mention that though I.O. has called for the criminal record of the present Appellant but as per contention of learned State Counsel no other criminal record of present Appellant is available. Thus, looking to the young age of the Appellant, his record, and conduct in jail, his conviction is reduced to suffer R.I. for four years and amount of fine is reduced to Rs,25,000/-. In case of default in payment of fine to D undergo S.I. for three months more. Instant appeal is accordingly disposed of in the above terms.