1. ' This is a criminal appeal against the judgment of learned Special Judge for Suppression of Terrorist Activities, Dadu, dated 30-4-1994 convicting the appellant Badruddin alias Dhamako son of Imdad Sial under section 13-D, Arms Ordinance and sentencing him to suffer R.I. For 5 years.
2. Hence this appeal.
3. ' The facts of the case are that on 18th December, 1992, S.H.O. Nazeer Ahmed Samejo of Police Station Mehar, lodged the F.I.R. For the State against the appellant at 3-45 p.m. Under section 13-D, Arms Ordinance. That on same day vide entry No,15 at 2-30 p.m. He was called by law enforcement agency to help them in a raid, against the criminals. That complainant along with his staff namely H.C. Muhammad Laiq Abbasi, H.C. Muhammad and Constable Nazeer Ahmed in their Government vehicle along with law enforcement agency proceeded to a village, when they reached at Noor Shah graveyard on Pacca Road at 3-00 p.m., they saw a person sleeping in the graveyard with klashnikov. That accused on seeing the police party tried to escape but he was encircled and caught red-handed with klashnikov along with magazines containing 25 bullets. On police inquiry he disclosed his name as Badruddin son of Imdad, resident of Mehar Town, but he could not produce the license of weapon. That police arrested him under Mashirnama and brought him to the Police Station Mehar and complainant S.H.O. Nazeer Ahmed Samejo registered the F.I.R. On behalf of the State against the appellant under section 13-D, Arms Ordinance. It is further alleged that S.H.O. While arresting the appellant prepared the Mashirnama of recovery and arrest of the accused as Exh.4-A and recorded statement of witnesses under section 161, Cr.P.C. Of P.W.
4. Muhammad Laik, P.W. Nazeer and P.W. Muhammad of Police Station Mehar. That police after usual investigation challaned the appellant in the Court of learned Judge for Suppression of Terrorist Activities, Dadu, and the trial Court examined two witnesses namely H.C. Muhammad Laik Abbasi of Police Station Mehar, who produced Mashirnama of recovery and arrest as Exh.4-A and he also deposed that on 18-12-1992 he was a Head Constable at Police Station Mehar. Vide entry No,15 at 2- 30 p.m. On same date he along with S.H.O. Nazeer Ahmed Samejo, Constable Muhammad Khan and Constable Nazeer Ahmed proceeded in a Government vehicle to the place of Wardat on the information given by law enforcement agency in their respective Government vehicles. He also deposed that when they reached the graveyard at Noor Shah at 3-00 p.m. At Pacca Road, they saw one person sleeping in the graveyard with a klashnikov. On seeing the police 'party the accused/appellant tried to run away but he was encircled and arrested by the police. That S.H.O.
5. Nazeer Ahmed Samejo inquired about the licence of klashnikov and its magazines containing 25 bullets from accused but he could not produce its license. So S.H.O. Arrested him under Mashirnama and Exh.4-A which was signed by P.W. H.C. Muhammad Laik and co-Mashir P.C.
6. Nazeer Ahmed. The number of klashnikov was mentioned as 17172643, then accused was arrested and brought to the Police Station Mehar where S.H.O. Lodged the F.I.R. On behalf of State against the appellant. As the appellant had no defence counsel, he did not cross the witnesses himself although opportunity was given by the trial Court, hence the depositions of P.Ws. Were unchallenged.
7. ' That trial Court also examined complainant S.H.O. Nazeer Ahmed Samejo who has also corroborated the version of the P.W. Muhammad Laik Abbasi and produced the F.I.R. As Exh.5-A and admitted that he had prepared the Mashirnama of recovery of klashnikov and arrest of the accused, in presence of Mashir Muhammad Laik Abbasi, H.C. Muhammad and P.C. Nazeer Ahmed on same day. Again accused/appellant did not cross the complainant as he had not engaged the defence counsel although opportunity was given to him by the Court. The accused/appellant in his statement under section 342, Cr.P.C. As Exh.7 has denied the prosecution allegation that on 18th December, 1992 at 3-00 p.m. S.H.O. Mehar along with his subordinate staff caught hold of appellant in Noor Shah Mukam and secured one klashnikov bearing No,17172643 along with one magazine containing 25 bullets from his possession. The appellant had also denied in his statement that any klashnikov or ammunition was secured from his possession without any licence, as according to the appellant it was foisted upon him by the S.H.O., as S.H.O. Demanded illegal gratification which he could not pay to him. And the appellant gave the names of two defence witnesses one Moulvi Abdul Karim and second Khuda Bux alias Khudan as his defence witnesses. That appellant was also examined under oath under section 340(2), Cr.P.C. As Exh.8 and deposed that he had not produced any weapon without licence before the police and that he was a Barber in the saloon of Khuda Bux Mahessar as a hair-dressor and about nine months back police arrested him from the saloon along with Army and he was detained illegally for 8 months in Police Station Mehar and when he could not give illegal gratification to police hence he was challaned in the above false case. That defence witness Moulvi Abdul Karim Bux Magsi, Khatib in the Jamia Mosque Mehar, in his deposition he Exh.9 has said that he knew the appellant since last 5/6 years and he is a hair dresser in the shop of Auqaf Department of Khuda. Bux and he came to know from other person that accused/appellant was arrested by police from hair dressing shop in the morning by police and army. That trial Court has also examined the defence witness Khuda Bux as Exh.10 in which he has said that he knew the appellant since last 15 years and he is working in the shop as a hair dresser and his shop is opposite to the shop of the appellant and adjacent to the mosque of Auqaf Department and that Army vehicle came with police and arrested the appellant from his shop about 8/9 months ago and this witness immediately rushed to inform D.W. Moulvi Abdul Karim that police and army has taken away the appellant. He has also alleged in his deposition that on the next day appellant was brought to the Police Station Mehar and that police has not secured any weapon from the accused and he is innocent person and has been falsely implicated in the present case.
8. ' It is pertinent to note that appellant has engaged Mr. Munawar Ali Butt as his Advocate when he examined his two defence witnesses on 26th January, 1993. The learned trial Judge in his impugned judgment, dated 30th May, 1994 had convicted the appellant to 5 years' R.I. Under section 13-D, Arms Ordinance on the plea that the version of prosecution witnesses S.H.O. Nazeer Ahmed Samejo and F.W. Muhammad Laik Abbasi has not been challenged by the appellant due to his not cross- examining the prosecution witnesses. And the trial Court has believed both the prosecution witnesses that appellant was arrested along with alleged klashnikov No,17172643 with magazine containing 25 bullets from his possession when he was arrested from Noor Shah graveyard in presence of Mashirs by the S.H.O. That the trial Court has not believed the two defence witnesses of the appellant hence he was convicted for R.I. 5 years.
9. ' Mr. Khalid Iqbal Memon, Advocate for the appellant contended that the appellant is so poor that he could not engage any Advocate to defend him when the prosecution witnesses were being examined. Mr. Munawar Ali Butt, Advocate had appeared for "him out of pity at the time of recording of defence evidence. He is a poor Barber, the Klashnikov is costly weapon which he can - ill-afford. As per evidence of prosecution he was sleeping in the graveyard with the klashnikov at mid-day. There is no evidence that there is any village or road nearby, where he could have committed any criminal offence with the help of klashnikov. The prosecution story is doubtful.
10. Prosecution has to prove the case beyond any reasonable doubt. He further contends as the appellant has not cross-examined the prosecution witnesses due to poverty, he requests for reduction of sentence on humanitarian grounds. He does not challenge the conviction.
11. ' Mr. Abdul Fatah Mughal, Advocate for the State concedes to this prayer of the learned Advocate for the appellant for reduction of the sentence. He further contends that under the circumstances sentence awarded for 5 years' R.I. Is harsh and excessive.
12. ' Heard learned Advocates for the appellant as well as State.
13. ' The prosecution witnesses have not been cross-examined by the appellant for the reasons of not engaging Advocate due to poverty of the appellant. ' The general impression is that the sentences awarded by the S.T.A. Courts are on the upper side of the maximum punishment to be awarded for the particular offences. Accused always engage Advocates to defense themselves to get acquittal or at least short sentences. Appellant in this case has not engaged any defense counsel in the beginning, probably he was too poor as pleaded by the learned Advocate for the appellant. In 13-D, Arms Ordinance cases maximum and minimum punishments are prescribed. The maximum or minimum punishments are to be awarded looking to the circumstances of each case and gravity of the offence. It is not in the evidence that the alleged recovered klashnikov was used by the appellant in commission of any offence or at the time of apprehension he put up any resistance to his arrest. There is also no evidence that there was a village or road near the graveyard where the appellant was alleged to be sleeping at the time of apprehension, so as to indicate that he was there for committing an offence with the help of klashnikov. These facts can be considered as mitigating circumstances for lesser punishment. Appellant is not alleged to be a previous convict.
14. Under these circumstances we are of the view that the punishment of 5 years' R.I. Awarded to the appellant is harsh and excessive. Accordingly we reduce it to R.I. For 3 years, which is punishment prescribed by the law for the offence. The appellant benefit of section 382-B, Cr.P.C. With this modification in the appeal is dismissed.
15. ' These are the reasons for a short order already announced Sentence reduced.