1. RAJA FAYYAZ AHMAD, J.---The instant appeal has been directed against the judgment dated 31-5- 1997 passed by the Special Judge, STA Court, Quetta whereby the appellant has been found guilty under section 13-E, Arms Ordinance, 1965 and sentenced to one year and six months R.I. The benefit of section 382-B, Cr.P.C. has also been extended to the appellant.
2. Briefly,, the stated relevant facts of the case are that during the course of investigation of Crime No.134 of 1996 registered with the Police Station, Gawalmandi Quetta under section 324/34, P.P.C. the appellant disclosed that on 6-9-1996 he had inflicted injury on his own thigh with his pistol and the pistol has been concealed by him under the ground near a grave at Kansi graveyard which he can recover. Pursuant to this disclosure the appellant was brought to Kansi graveyard at 10:00 p.m. and he upon excavating the ground near to a grave recovered a 30 bore pistol containing number 1458 which was wrapped in a plastic bag and produced it. The pistol was unloaded but no bullet was recovered. The appellant failed to produce licence of the pistol which was found in his control/possession. The pistol and the magazine were taken into possession by the police vide separate memos and were sealed into a parcel. Accordingly case under section 13-E of Arms Ordinance under Crime No.139 of 1996 was registered with the Police Station on 15-9-1996 and the accused was arrested. After completion of the investigation the challan against the appellant was submitted in the Court of Special Judge, STA Court, Quetta under section 13-E of the Arms Ordinance on 20-10-1996.
3. The appellant was indicted for the charge under section 13-E of the Arms Ordinance on 14-12-1996 to which he did not plead guilty and the prosecution in support of its case examined three witnesses, whereafter the appellant was examined under section 342, Cr.P.C. in the light of the incriminating evidence produced during the course of trial and the appellant denied the case of prosecution as a whole and on the same day the appellant made his statement on oath under section 340 (2), Cr.P.C. in disproof of the charge. He also produced two defence witnesses and thereupon the learned Court vide its impugned judgment convicted the appellant.
4. We have heard the learned counsel for the appellant and the learned Advocate-General in support of their respective contentions. The learned counsel for the appellant contended that no inhabitant of the locality was associated by the police to witness the alleged recovery in violation of section 103, Cr.P.C. which renders the recovery extremely doubtful. The learned counsel contended that the alleged recovery was effected from an abandoned place. i,e, graveyard accessable to general public, therefore, the control/possession of the weapon in the given circumstances of the case cannot legitimately be foisted against the appellant and according to the learned counsel the appellant at the relevant time was seriously sick on account of the injury sustained by him and in such condition he could not have effected the alleged recovery hence the impugned judgment for the reasons given by him is not sustainable and the appellant as such is entitled to acquittal. The appellant's counsel placed reliance on 1985 P.Cr.LJ 251 and 1995 SCM R 614. The learned Advocate- General controverting the contentions put forth on behalf of the appellant submitted that the recovery of the pistol has been effected at the instance of the appellant in presence of the police personnels from the specified site which could not have been known to any other person except the appellant who consequent upon effecting recovery on excavating the ground produced the pistol; proved the fact that the weapon was within the control and possession of the appellant. The learned Advocate-General further submitted that in absence of any motive or illwill alleged against the police officials, the credence of police witnesses cannot be doubted and according to the learned Advocate-General the appellant has been properly convicted and sentenced by the learned trial Court.
5. (P.W.1) Muhammad Alam, IP/S.H.O. Police Station Airport, Quetta deposed that on 15-9-1996 he was posted as S.H.O., Police Station Gawalmandi, the appellant/complainant in Crime No.134 of 1996 under section 324, P.P.C. made disclosure with regard to the pistol and the police accordingly alongwith the accused proceeded to the Kansi graveyard from where excavating a grave he recovered a 30 bore pistol bearing No.1458 and produced it to the police which was taken into possession vide recovery memo. parcel, whereof was also prepared and the accused/appellant could not produce any licence for the same and he sent Murasila to the Police Station for registration of the case. He produced the recovery memo. prepared by him Exh.P/1-A and parcel as Article/1. Upon unsealing the parcel he produced the pistol as Article/2 which he recognized to be the same. The witness also produced the Murasila sent by him Exh.P/2-B and identified his signature. He handed over the investigation of the case to Nasim Akhtar, A.S.I. and the challan prepared by him was produced as Exh.P/1-C. He also identified the accused present in the Court.
6. The recovery of the pistol effected by the police consequent upon the disclosure of the appellant and made at his instance, has not been challenged in the cross-examination. The witness was cross-examined only with regard to the non-association of notables of the area at the time of the recovery and with regard to the violation of section 103, Cr.P.C.
7. (P.W.2) Muhammad Sarfaraz, A.S.I. Police Station Gawalmandi deposed that on 15-9-1996 the accused/appellant disclosed about the discovery of pistol during interrogation before P.W.1 and led the police party to Kansi graveyard. According to the witness the dislcosure was made in connection with Crime No.134 of 1996 registered under section 324, P.P.C. According to the witness the appellant who led the police party to Kansi graveyard from beneath the ground near a graveyard produced a pistol which was wrapped into a plastic bag and same was taken into possession by IP/S.H.O. vide recovery memo Exh.P/1-A signed by him and Muhammad Qasim. The witness identified the pistol as Article/2 and produced the sketch of the pistol as Exh.P/2-A. He also identified the accused in Court. This witness was cross-examined by the defence counsel but his evidence with regard to the disclosure made by the accused and the recovery of the pistol effected at his instance has not been challenged nor disputed except that the witness was cross- examined on the lines that no respectable person of the locality was associated by the police at the time of the recovery nor any effort was made to call for the private witnesses to witness the recovery.
8. (P.W.3) Nasim Akhtar, A.S.I. deposed that on 15-9-1996 after registration of the case its investigation was entrusted to him. He recorded the statements of the witnesses on the spot and also interrogated the accused and on 16-9-1996 the accused was remanded to judicial custody.
9. According to him photostat copy of the recovery memo. was produced to him by S.H.O. at the spot which was taken into possession vide memo. Exh.P./2-B. He also identified the accused present in Court and handed over the case file to the S.H.O. for preparation of challan. In the cross- examination he stated that he saw the accused for the first time in hospital where he was lying in injured condition and stated that he did not remember the date and time and for the second time he saw the accused in his house in connection with the case under section 324, P.P.C. He further stated that accused was called for in the police station by the S.H.O. and after recovery he was arrested.
10. The accused/appellant in his statement on oath stated that on 6-9-1996 he was going to his house from Bazar through the graveyard where he sat to make urine, he sustained a bullet at his leg but was not aware as to who fired the bullet and he was bleeding profusely resultantly he lost consciousness and some passer-by took him to hospital where he was in semi-unconscious condition when his statement was recorded, in which he nominated one Sharif and thereafter, Doctor treated him and allowed him to go home. On 15-9-1996 he was called by the police and Qasim police officer told him to give the name of person he nominated in the hospital so that he may be arrested and the accused told to the police officer that he did not identify any person as he was hit by a stray bullet but Qasim told to him that he had to disclosse the name; resultantly altercation took place between them and he was put in the lock up and stated that he had no knowledge about the pistol and the proceedings in this behalf has been taken by the police on its own. In the cross-examination he denied that he made disclosure to the police that he can effect recovery of the pistol with which he inflicted injury to himself and denied that the pistol was recovered at his instance from graveyard.
11. We have considered carefully the contentions put forth before us on behalf of the parties in the light of the record. P.W.1 and P.W.2 are the material witnesses with regard to the recovery of the pistol having been made at the instance of the accused/appellant, pursuant to the disclosure made by him during interrogation of Crime No.134 of 1996 but the defence has not put any question/challenged the version of the prosecution in this behalf, therefore, under law it shall be deemed to have been accepted by the defence. The cross-examination was concentrated on the only point that the alleged recovery was made by the police without associating any respectable person of the locality and that no effort was made on the part of the police to associate any public/private person to witness the alleged recovery and the trend of the cross-examination indicate/remain that the requirement of provisions of section 103, Cr.P.C. have been violated deliberately and for no justifiable reason the private witnesses were not associated. On this point the learned counsel for the appellant placed reliance on the reported judgment i,e, Mir Muhammad v. the State 1995 SCM R 614 wherein it has been held by the Hon'ble Supreme Court that association of two respectable inhabitants of the locality is not required in a case where the accused himself leads the police to a particular place and gets the article recovered. In the cited case unlicensed gun was recovered at the instance of the accused and the accused was convicted under section 13-E of the Arms Ordinance and sentenced to one year R.I. with a fine of Rs,500 by the Additional Sessions Judge, Usta Muhammad. Appeal filed by the convict was also dismissed by the High Court of Balochistan on 16-3-1992 whereupon the convict filed petition for leave to appeal before the Hon'ble Supreme Court and the leave was granted to appeal to re-appraise the evidence and finally the same was dismissed. It has also been observed in the afore mentioned authority that the police official had no enmity with the appellant and there was no infirmity in their statements which cannot be rejected on account of the office which they hold. The second authority on the same point relied upon by the learned counsel for the appellant reported in 1985 P.Cr.LJ 251 by the Single Bench of the Hon'ble High Court, Karachi in view of the judgment of the Hon'ble Supreme Court reported in 1995 SCM R 614 is of no help to the appellant. The Hon'ble Supreme Court in another judgment i,e, State through Advocate-General; Sindh v. Shankar 1997 SCM R 1000 held that the provisions of section 103, Cr.P.C. apply to a case where police conducts search of the house/place to recover an article for which search is to be made and not to a case where anything is to be discovered in consequence of information by or on pointation of the accused. In view of the afore mentioned judgments of the Hon'ble Supreme Court the contention raised by the counsel for the appellant that the recovery of the pistol is highly doubtful on account of the non-association of the respectable persons of the locality is without any substance.
12. The appellant has not brought any material on record to show that at the relevant time the appellant was confined to bed and was not in a position to move about due to the injury sustained by him hence, there is no reason to assume such contention to be correct.
13. The defence witnesses produced by the appellant are inconsequential as the witnesses have deposed only about the character of the appellant and stated that previously the appellant was not involved in any case. However; D.W Abdul Haleem stated that on 15-9-1997 from 8:30 p.m. to 1 1 : 00 p.m. he remained with the accused at police station who was not taken out of the police station but such version of D.W. appears to be not convincing for the reasons that such plea was not suggested to any of the P.W. nor the appellant in his statement on oath stated so, inasmuch as; the D.W. did not state as to how and for what purpose he remained in the police station with the appellant nor it is convincing in the ordinary course for a person to remain in the police station with an accused with whom no relationship/connection is claimed.
14. In generality as it originally stood the penalty for breach of sections 4, 5, 8 to 11 of the West Pakistan Arms Ordinance (Ordinance XX of 1965) has been made punishable under section 13 for the commission of any of the offences specified thereunder in clauses (a), (b), (c), (d), (e), (f), (g) and
(h) entailed punishment with imprisonment for a term which may extend to 3 years, or with fine, or with both, subject to the following Proviso and Explanation: -- " Provided that punishment for possession of an unlicensed fire-arm shall not be less than one year."
15. "Explanation-Possession of a firearm by a person licensed or authorise under this Ordinance to possess or keep such firearm, shall not, even after the expiry of such license or authority, be deemed to be possession of an unlicensed fire-arm for the purposes of award of enhanced penalty under the proviso to this section."
16. Subsequently various amendments and addition to section 13 of West Pakistan Arms Ordinance, 1965 (hereinafter called the Ordinance) were made from time to time, therefore, reference specifically needs to be made to the commencing provisions of section 13 as well.
17. Section 13. "Penalty for breach of sections 4, 5, 8 to 11. Whoever commits any of the following offences, namely:-- (a)........................
18. (b).......................
19. (c).......................
20. (d)......................
21. (e)........................
22. (f)........................
23. (g)........................
24. (h)..........................
25. Proviso..........................
26. Explanation The Proviso and the Explanation to section 13 of the Ordinance were omitted by West Pakistan Arms (Amendment) Act, 1967 (Act XI of 1967).
27. By means of West Pakistan Arms (Amendment) Act, 1973 (Act LII of 1973) the punishment of imprisonment provided for any of the offences described in section 13 of the Ordinance was substituted to be "seven years" instead of three years with addition of the following proviso to section 13.
28. Proviso to section 13.
29. "Provided that the punishment for an offence committed in respect of any:-- (a)Cannon, grenade, bomb or rocket; or (b)light or heavy automatic weapon, rifle of.
30. 303 bore or over or musket of .410 bore or over or ammunition which can be fired from such weapon, rifle, musket, pistol or revolver, shall be imprisonment for a term which is not less than three years.
31. Note:- The West Pakistan Arms (Amendment) Ordinance, 1973 (Ordinance No.III) of 1973 on the subject was repealed by West Pakistan Arms (Amendment) Act, 1973 (Act No.LII).
32. Thereafter, Pakistan Arms (Second Amendment) Act, 1976 (Act LXXX of 1976) was enacted, published in the Gazette of Pakistan, Extraordinary, Part I, 30th December, 1976 whereby, section 11-B was inserted in the Ordinance after section 11-A and clause (g) and (h) to section 13 were amended and clause (i) to the section was added as under:-- Section 13.
33. "(i) Keeps, carries or displays any arms in contravention of an order issued under section 11-B"
34. Whereas, the existing provisos to sections 14 and 16 of the Ordinance were also substituted as under by (Act LXXX) of 1976.
35. Proviso to section 14.
36. "Provided that the punishment for an offence committed in respect of any- (a)Cannon, grenade, bomb or rocket; or (b)light or heavy automatic weapon, rifle of .303 bore or over, musket of .410 bore or over or pistol or revolver of .441 bore or over or ammunition which can be fired from such weapon, rifle, musket, pistol or revolver, shall be imprisonment for a term which is not less than two years".
37. Proviso to section 16.
38. "Provided that the punishment for an offence committed in respect of any--- (a)Cannon, grenade, bomb or rocket; or (b)light or heavy automatic weapon, rifle of .303 bore or over, musket of .410 bore or over or pistol or revolver of .441 bore or over, or ammunition which can be fired from such weapon, rifle, musket, pistol or revolver, shall be imprisonment for a term which is not less than one year".
39. The Pakistan Arms (Second Amendment) Ordinance, 1976 (XXXI of 1976) on the subject was repealed by Act (LXXX of 1976) above referred.
40. By virtue of Pakistan Arms (Amendment) Ordinance, 1988 (Ordinance No.XVI) of 1988, the commencing provisions of section 13 were amended and after section 13 new section 13-A and 13-B inserted in the Pakistan Arms Ordinance, 1965. This Ordinance stood lapsed from the Statute Book at the expiry of four months from the date of its promulgation i,e, October 13, 1988 in view of the provisions of Article 85(ii) of the Constitution of Islamic Republic of Pakistan, 1973.
41. The commencing provisions of section 13 of the Ordinance with insertion of additional section 13-A was introduced by the Pakistan Arms (Amendment) Ordinance, 1996 (Ordinance XXXVIII of 1996) published in the Gazette of Pakistan Extraordinary, Part-I 8th March,
96. This Ordinance was promulgated by Pakistan Arms (Second Amendment) Ordinance, 1996 (Ordinance No. LXVII of 1996) published in the Gazette of Pakistan, Extraordinary dated 4th July, 1996 and at the expiry of the Pakistan Arms (Second Amendment) Ordinance, 1996, the Pakistan Arms (Third Amendment)
42. Ordinance, 1996 (Ordinance No.XCVIII of 1996) was promulgated on the same subject published in the Gazette of Pakistan Extraordinary, November 2, 1996 and at the expiry of (Ordinance No.SCVIII of 1996); Pakistan Arms (Amendment) Ordinance, 1997 (Ordinance No.XLIII ) of 1997 was promulgated, published in the Gazette of Pakistan Extraordinary, the 7th March, 1997. The amendments introduced by Ordinance No.XLII of 1997 for ready reference are reproduced hereunder:-- 2.Amendment of section 13, West Pakistan Ordinance XX of 1965.--In the Pakistan Arms Ordinance, 1965 (W.P. Ordinance XX of 1965), hereinafter referred .to as the said Ordinance, in section 13, for the word "Whoever" the words, figure and letter "Subject to section 13-A whoever" shall be substituted.
43. 3.Insertion of new section 13-A, West Pakistan Ordinance XX of 1965.--"In the said Ordinance, after section 13, amended as aforesaid, the following new section shall be inserted namely:-- 13-A. Penalty for transporation of arms etc.--(a) transports, sells or keeps, offers or exposes for sale, a cannon, grenade, rocket launchers, missile, machine gun, sub-machine gun, dynamite or detonator, or ammunition which can be fired from such arms; or (b)goes armed with any of the arms or ammunition referred to in clause (a) in contravention of the provisions of section 8; or (c)has in his possession or under his control any of the arms referred to in clause (a) or ammunition which can be fired from such arms, in contravention of the provisions of section 9. shall be sentenced to death or imprisonment for life and his property, whether movable or immovable, shall be forfeited.
(2) Whoever--
(a) transports, sells or keeps, offers or exposes for sale, any arms or ammunition other than those referred to in clause (a) of subsection (1) in contravention of the provisions of this ordinance; or (b)goes armed with any arms or ammunition other than those referred to in clause (b) of subsection (1) in contravention of the provisions of section 8; or (c)has in his possession or under his control any arms or ammunition other than those referred to in clause (c) of subsection (1) in contravention of the provision of section 9, shall be punished with imprisonment for life or with rigorous imprisonment for a term, which is not less than seven years.
(3) Any carrier used for the transportation of any illicit arms or ammunition shall also be liable to immediate confiscation and such carrier alongwith the illicit arms or ammunition shall be surrendered to the Provincial Police.
44. Explanation---In this section "carrier" includes a vessel, air-craft, vehicle or animal."
4. Repeal---The Pakistan Arms (Third Amendment) Ordinance, 1996 (No.XCVIII of 1996), is hereby repealed."
45. The perusal of the amendments carried out in section 13 of the Ordinance referred to above indicate that the punishment provided for the commission of any of the offences specified in section 13 of the Original statute was imprisonment for a term extendable upto three years, subject to the proviso that the punishment for possession of an unlicensed firearm shall not be less than one year.
46. The proviso to section 13 of the Ordinance providing minimum sentence of one year and the explanation to Section 13 was omitted from the statute by West Pakistan Arms (Amendment) Act, 1967 (Act XI).
47. The maximum sentence of three years awardable under section 13 of the Ordinance (W.P.
48. Ordinance XX) of 1965 was substituted for "seven years" subject to the minimum sentence of three years; if committed in respect of the arms or ammunition described in the provision to the section was incorporated in the statute vide West Pakistan Arms (Amendment) Act, 1973 (Act LII) whereas; clauses (g) and (h) to section 13 and insertion of additional clause (i) in section 13 of the Ordinance were introduced though West Pakistan (Second Amendment) Act, 1976 (Act LXXX).
49. The Pakistan Arms (Amendment) Ordinance, 1988 (Ordinance No.XVI), stood lapsed at expiry of the statutory period. At the expiry of Pak Arms Ordinance XXXVIII, 1996, Pakistan Arms (Second Amendment) Ordinance No. LXVII, 1996 and the Pakistan Arms (Third Amendment) Ordinance No.XCVIII, 1996, Pakistan Arms (Amendment) Ordinance, 1997 (Ordinance XLII) published in the Gazette of Pakistan Extraordinary 7th March, 1997, was promulgated whereby the commencing provisions of section 13 were amended and a new section 13-A was inserted in the Ordinance (respondent hereinafore). The abovementioned Ordinance No.XLII, 1997 was not repromulgated at the expiry of the statutory period from the date of its promulgation would stand omitted from the statute or unlesses repromulgated or enacted by the legislature.
50. In view of the above legal position a Court is competent to award either or both the punishments i,e, with imprisonment for a term which may extend to seven years or with fine, or with both to an offender, if the offence committed falls under any of the clauses in section 13 of the Ordinance in respect whereof no minimum sentence of imprisonment has been provided unless the offence committed is in respect of any of the arms or ammunition described in the proviso to Section 13.
51. The learned trial Court thus being fully conscious of the fact that the 30 bore pistol did not fall within the kind of arms described in the proviso to section 13 of the Ordinance did not pass the minimum sentence of three years against the appellant.
52. We are of the considered opinion that the recovery of the pistol has been effected at the instance of the appellant and the charge stands proved against him beyond shadow of any reasonable doubt. The appellant failed to suggest or brought any material on record to show that there was any motive on the part of the Police to involve him falsely in the case nor could impeach the testimony of the prosecution witnesses, consequently, the conviction recorded by the learned Trial Court under section 13-E of the Arms Ordinance is maintained.
53. In view of the legal position discussed above and keeping in view the circumstances of the case, we feel inclined in the interest of justice to reduce the sentence of one year and six months R.I. to that of six months RI to be undergone by the appellant with benefit of section 382-B, Cr.P.C. already extended to him by the Trial Court; with this modification of the sentence the appeal being meritless is dismissed.