1985 P Cr (PLP)

‑‑‑S. 13‑‑Sentence‑‑Accused acquitted in main murder case‑‑Trial Court suspending sentence of accused under Arms Ordinance, 1965 and allowing bail to him to enable him to file appeal before High Court‑‑Bail granted by trial Court confirmed by High Court‑‑Accused remaining in judicial lock‑up during trial for quite a long time‑‑Held, it would not be proper to send accused back to prison to serve sentence‑‑Period for which accused remained in judicial lock‑up in main murder case, considered as sentence of imprisonment in present case in circumstances. Ijaz Hussain Batalvi assisted by M.A. Zafar for Appellant. Ch. Sabir for A.‑G. for the State. Dates of hearing:20th, 21st, 22nd and 23rd April, 1985. QURBAN SADIQ IKRAM, J.‑‑ This is an appeal by Mansab against the judgment, dated 27‑3‑1982 passed by learned Additional Sessions Judge, Sargodha sentencing him to one year's R.I. under section 13 of Arms Ordinance, 1965.

2. The prosecution case is that Mansab appellant was required by the Police in a murder case. On 27‑2-1980 the police raided his Dera in Chak No. 23/S.B. The accused was found sitting on a cot in his room. A gun P.1 alongwith 4 live cartridges P.2/1‑4 was also found lying on that very cot. It was taken in possession by S.I. Ghulam Qasim (P.W.2) vide memo. Exh.P.A. attested by Gul Muhammad (P.W. 1) and Muhammad Iqbal (given up P.W.). The accused had no licence for the weapon and was, therefore, challaned under the Arms Ordinance.

3. We have heard the learned counsel for the appellant and have also gone through the record of the case. The prosecution examined two witnesses in all. The accused denied the charge and did not produce any evidence in defence. Gul Muhammad (P.W.1) supported the recoveries of gun and cartridges from the accused. In cross‑examination he admitted that his cousin Nadir was challaned for the murder of one Muhammad Khan, an uncle of Ghulam Rasul, a co‑accused of the appellant in the murder case, about two years before the present occurrence. Muhammad Iqbal (given up P.W.) was a cousin of his father. Both Gul Muhammad (P.W.1) and S.I. Ghulam Qasim (P.W.2) stated that the recovery was effected at 6‑15 p.m. on 27‑2‑1980. There is no discrepancy between the statements of these witnesses. They have consistently supported the prosecution case. It is correct that Gul Muhammad was related to Nadir who was challaned for the murder of one Muhammad Khan, about two years before this occurrence. This was a far fetched enmity. Gul Muhammad, (P.W.1) had no direct enmity with Mansab appellant. There is nothing to show that Gul Muhammad P.W. was either a co‑accused of Nadir or F\ helped Nadir in the defence of his case in any manner. As such we rely on his statement. Even if for the sake of arguments the evidence of Gul Muhammad (P.W.1) is excluded then also we find no reason to disbelieve S.I. Ghulam Qasim (P.W.2) who effected recovery of the crime weapon from the accused. Reliance is placed on Kamir v. Nazir l3 Ahmad and others 1980 S C M R

791. It was held in Kamir's case at page 794 that:‑ "Even though witness Khushi Muhammad was not produced, and there might have been some litigation between the respondent and the recovery witness Sanata, yet the evidence of the Investigating Officer could not be brushed aside, specially when there was no one have on the part of the complainant party to falsely implication the respondent. There is no rule that the evidence of a Police Officer as to the recovery of incriminating articles cannot be accepted, whatsoever the circumstances of the case."

4. Mansab appellant was acquitted in the main murder case. In the instant case after his conviction on 27‑3‑1982, the learned trial Judge suspended his sentence and allowed him bail to enable him to file appeal in this Court. This bail was confirmed on 13‑4‑1982. We, therefore, think that it will not be proper to send him back to prison to serve the sentence. As such we maintain his conviction under section 13 of the Arms Ordinance of 1965. Mansab appellant was in judicial lock‑up during the trial for quite a long time. The period for which he remained in judicial lock‑up will be considered as sentence of imprisonment in this case plus a fine of Rs.500 or in default two months' R.I. The appeal is dismissed subject to above modification. The appellant will deposit the fine within thirty days of this order. H.A.K Appeal dismissed.