1. Mrs. Ashraf Jahan, J.:- Appellant Mohsin has impugned the Judgment dated 20.01.2017 passed by learned Ist Additional Sessions Judge, Karachi (East) in Sessions Case No.979/2014, arising out of FIR No.100/2014, under section 23(1)(a) of the Arms Act, 2013 of P.S. Soldier, Karachi, whereby he was convicted and sentenced under section 265-H(ii) Cr.P.C to suffer R.I for five years with fine of Rs.10,000/-; in default thereof to further undergo S.I for two months. The benefit of section 382-B Cr.P.C. was extended to him.
2. The case of prosecution narrated in the FIR is that on 22.04.2014 Complainant S.I Subhan Ali was busy in patrolling with his subordinates, when they reached in the area of Soldier Bazar , he received spy information that two motorcyclists armed with deadly weapons will be passing Shah Khurasan Road, near KMC Market, Soldier bazar , Karachi. They started snap checking when at about 0015 hours two persons riding on motorcycle bearing registration No.KGV -3717 (red colour) were stopped, their names were enquired, who disclosed as Shah Zaib alias Shani son of Muhammad Ishaq and Mohsin son of Abdul Wahab; from personal search of accused Mohsin one 30 bore pistol without number , loaded with magazine alongwith four live bullets was recovered. Besides, Rs.150/- and one mobile phone was also recovered from him. He failed to produce the license of recovered weapon and also could not produce documents of the motorcycle; therefore, it was taken into police custody under section 550 Cr.P.C. Thereafter the accused alongwith recovered case property was brought at the Police Station and F.I.R. was registered against him.
3. The charge in the instant case was framed under section 23(1)(a) of the Arms Act, 2013 against the accused/Appellant on 05.05.2015 to which he pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case against the accused/Appellant examined following three witnesses: P.C Zaheer Ahmed (Ex.3), who produced the memo of arrest, recovery and memo of inspection of place of incident as Ex.3/A & 3/B respectively .
5. ASI Sarfaraz P .W-2 (Ex.4), who produced departure entry , covering letter to FSL and FSL Report as Ex.4/A to 4/C.
6. S.I Subhan Ali Channa P.W-3 (Ex.5), who produced entry No.20, statement under section 154 Cr.P.C of Complainant, Entry No.22, F .I.R. and Entry No.59 as Ex.5/A to 5/E.
7. Thereafter the prosecution closed its side vide statement Ex.6.
8. The statement of accused under section 342 Cr.P.C. was recorded as Ex.7, in which he denied all the allegations leveled against him and pleaded that he was falsely implicated in this case as the police demanded money from him and on his refusal involved him in the present crime. He neither examined himself on oath nor produced any evidence in his defence.
9. The trial Court after concluding the trial convicted the Appellant vide Judgment dated 20.01.2017, which is impugned before this Court in the present appeal.
10. I have heard learned counsel for the Appellant, who contended that the Judgment passed by the learned Trial Court is perverse, patently illegal and is the result of misreading and mis-appreciation of the evidence, and it has been passed in slipshod manner. He contended that as per F.I.R. the incident had taken place at 0015 hours, whereas the Report No.22 shows that police stopped the motorcycle at about 0030 hours; the trial Court did not consider the evidence of P.W.1, who in his cross-examination admitted that the case property was not recovered from the present Appellant, while P.W.3 in his cross examination admitted that on 22.04.2014 no such incident had taken place, which itself shows that the prosecution story is false and fabricated. Therefore, the Judgment of the trial Court is liable to be set aside, being erroneous and factually incorrect. Furthermore, there are material contradictions in the evidence of witnesses examined by the prosecution regarding recovery and the time of incident which has made the whole case of prosecution as doubtful one.
11. On the other hand, it is contended by learned Additional Prosecutor General that there is no illegality in the impugned judgment; all the material witnesses were examined and they all have fully supported the version of prosecution. She produced the criminal history record of the Appellant and stated that the Appellant is habitual offender involved in two other criminal cases, therefore, the learned Trial Court has rightly convicted him, thus she opposed the present appeal.
12. I have given due consideration to the arguments advanced before me. A careful perusal of the record reveals that the present case is based upon the evidence of three witnesses; complainant, mashir and Investigating Officer.
13. Their evidence shows that on 22.04.2014 at about 0015 hours they had apprehended the present Appellant alongwith his companion Shahzaib @ Shani son of Muhammad Ishaque and from the possession of the present Appellant one 30 bore pistol without number, loaded with magazine alongwith four live bullets was recovered. All the prosecution witnesses have fully supported such case of prosecution and deposed that Appellant is the same person who was apprehended by the police on the fateful day. In the instant case, the recovered pistol was sent for the examination and as per FSL report the same was found in working condition. All the prosecution witnesses, who are natural witnesses of the incident, were subjected to cross examination by the counsel for the Appellant; however, no enmity was alleged against them during the cross examination. No motive or any other cause was attributed to the prosecution witnesses to falsely implicate the present Appellant. Thus, the evidence of prosecution witnesses appears to be trustworthy and has been rightly relied upon by the learned trial Court.
14. As regards objection of the learned counsel for the accused, that the P.Ws Zaheer Ahmed and S.I. Subhan Ali, in their cross examination have admitted that accused was not arrested and the case property was not recovered from him, is concerned, it appears that while recording cross examination of the above prosecution witnesses many typographical errors have occurred, but the evidence is to be examined as a whole and not in bits and pieces. The above witnesses during examination-in-chief and in the cross examination, have fully supported the case of prosecution. So far as the errors found in cross examination are concerned, it cannot be attributed to the witnesses, but can be termed as the carelessness or casual attitude of the presiding officer. For example in cross examination of P.W. P.C. Zaheer Ahmed it is mentioned "it is incorrect to suggest that accused was arrested from the accused". Furthermore it is also observed that even in the judgment she has disclosed the date of incident as 22.04.2013, which is just a typographical mistake. All these things reflect that the concerned Presiding Officer has not given due attention and care, which is otherwise required during recording the prosecution evidence as well as while delivering the Judgment in any criminal or civil matter.
15. The learned Additional Prosecutor General has also produced the criminal record of the present Appellant, which shows that apart from the instant case he is involved in two other cases bearing No.407/2014 under section 392/397/34 P.P.C and 408/2014 under section 23(1)(a) of the Sindh Arms Act,2013. This reflects that the present Appellant is prima facie a habitual offender and in the year 2014 soon after his release on bail in the present crime he was arrested in two other criminal cases.
16. After considering the material available on record, I am of the considered view that prosecution has proved its case against the Appellant and minor discrepancies will not affect its fate in any manner. More so, as entire evidence of the prosecution cannot be brushed aside solely on the ground of minor discrepancies particularly when the evidence adduced by the prosecution witnesses is confidence inspiring and sufficient to connect the Appellant with the commission of crime.
17. This being the position, the appeal is dismissed and the Judgment of the trial Court is maintained. A copy of this order be transmitted to the concerned Presiding Officer of the trial Court through M.I.T -II for her future guidance and compliance.