2004 P Cr (PLP)

Jai Jai Vishnu for Appellant. Muhammad Ismail Bhutto for the State. The present appeal impugns conviction judgment recorded by II-Additional Sessions Judge, Shikarpur in Sessions' Case No.406 of 2001, State versus Asghar, convicting the present appellant Asghar for an offence punishable under section 13(d) of Arms Ordinance to undergo R.I. for seven (7) years and fine Rs.50,000 and in lieu thereof further R.I. of one year. The benefit of section 382-B, Cr.P.C. was also extended to the appellant. It appears that the appellant was apprehended along with other accused persons from Nangi Laro, Kandhkot Shikarpur Road on 9-7-2001, by the police party while on patrol duty in their Mobile No.5607. From the search of appellant it is alleged that unlicensed K.K. was recovered from his possession on the basis of which two criminal cases were registered, one being Crime No.83 of 2001 for an offence punishable under sections 402 and 399, P.P.C. and other being subject-matter of instant appeal. Same set of witnesses and evidence was relied upon by the prosecution in support of their case. It appears that learned trial Court on the same set of witnesses, recorded acquittal of the appellant in Crime No.83 of 2001 under sections, 265-H(i), Cr.P.C. vide acquittal judgment dated 12-8-2003 against which judgment, it is not disputed no appeal has been preferred. On same set of evidence however, the learned trial Court convicted the present appellant to undergo R.I. for seven (7) years and fine of Rs.50,000 as recorded above. The learned counsel for the appellant has impugned the judgment on two fold grounds firstly, that same set of witnesses, were disbelieved: by the same Court while recording acquittal in Crime No.83 of 2001, whereas same set of witnesses were relied upon for inflicting conviction impugned through instant appeal. It was next urged that station diary was not produced by the prosecution to substantiate its plea that they were on patrol duty. It is also urged that applicant was arrested on 9-7-2001, and bailed out by the trial Court on 13-5-2002, he was again taken into custody while recording conviction in Crime No.84 of 2001, on date of judgment i.e. 12th August, 2003, almost more than one year, has passed since he was taken into custody after judgment. In all appellant has remained behind bar for over 18 months. He further urged that if benefit of remission are taken into consideration he must have earned more than 5/6 months of remission, that makes total period of 2 years. Mt. Bhutto learned State Counsel contends that contention urged are mitigating circumstances that may entitle the petitioner for some remission in the sentence. Mr. Vishno counsel for appellant concedes such proposal. In view of the above mitigating circumstances and foregoing reasons since the applicant has remained behind the bars for almost ten months as UTP and since date of impugned judgment dated 12-8-2003, i.e. more than one year, in all he has served almost two years. Maximum punishment is seven years for an offence under sections 3/4, Arms Ordinance. Under circumstances the sentence is reduced what has already undergone. Further fine is reduced from Rs.50,000 to Rs.25,000 and in lieu of fine of further R.I. for six months. On payment of fine and or serving out sentence in lieu of fine as the case may be appellant may be released if not required in any other case. H.B.T./A-103/K Order accordingly.