1992 P Cr (PLP)

Hamesh Gul Khan for the State. Date of hearing: 15the April, 1990. Bismillah Jan, son of Mir Alam Jan, resident of Kotka Gul Ahmad Shah, Tehsil and District Bannu, had been tried and convicted under section 13 of the Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance XX of 1965) (hereinafter to be called as the Ordinance), by a Magistrate of the First Class, Bannu and sentenced to undergo R.I. for three years, vide judgment, dated 11‑7‑1989. However, on consideration of the fact that he was the first offender, was ordered to be released on probation for the said period on furnishing bonds in the sum of Rs.20,

000. The petitioner filed an appeal before the learned Sessions Judge, Bannu, who, while disposing of the appeal suo motu took notice of the petitioner's release on probation and not only maintained conviction and the sentence by his judgment, dated 7‑12‑1989, but also withdrew the concession of probation on the ground of his implication in a cross‑case under section 307, P.P.C. Feeling dissatisfied, the convict‑appellant has filed the instant petition.

2. The facts in the background are that a case under section 13 of the Ordinance was registered against the petitioner at the behest of Mr. Gul Rehman, a Magistrate of the First Class, Bannu, who sent a Murasila to Police Station City asserting therein that in compliance with the orders of Sub- Divisional Magistrate, he made a test purchase of 10 cartridges of 7.62 calibre from the petitioner for Rs.20 after which the petitioner being owner of the shop was arrested and a case vide F.I.R. No.224, dated 12‑4‑1986 was registered against him under section 13 of the Ordinance. The petitioner stood trial before a Magistrate of the First Class, who, on conclusion of the trial, convicted and sentenced him in the terms stated above. On appeal, the learned Sessions Judge not only upheld his conviction and sentence, but further withdrew the concession of his release on probation extended to him by the Magistrate.

3. S. Zafar Abbas Zaidi, the learned counsel for the petitioner, had questioned the propriety of conviction and sentence awarded to the petitioner by the learned Magistrate and upheld by the learned Sessions Judge principally on the grounds of mala fides of the authorities in involving the petitioner. In this context, he pointed out that no prudent mind would believe that an Arms Dealer would issue a receipt evidencing the sale of ten cartridges to a raiding Magistrate. The learned counsel submitted that, in any case, the learned trial Court as also the appellate Court have ignored to examine the quantum of sentence which was rather very harsh and out of all proportions, in that the petitioner was allegedly guilty of selling only 10 cartridges of 7.62 m.m. rifle. The learned counsel had also serious criticism over the exercise of suo motu authority to withdraw the concession of his release on probation. In this behalf, he urged that it had escaped the notice of the learned Sessions Judge that the petitioner had lodged the report vide F.I.R. No.389, according to which he had been injured at the hands of Sher Bahadur and Ghulam Siddique and that a counter‑report vide F.I.R. No.390 was made in the nature of counterblast wherein the charge of ineffective firing was levelled against him. According to the learned counsel, such a report could not have been made a basis for withdrawal of the concession of probation.

4. Mr. Hamesh Gul Khan, Advocate, appearing on behalf of the State, had attempted to defend the impugned judgments.

5. I have examined the record with the assistance of the learned counsel for the parties. The petitioner has nowhere questioned the genuineness of the receipt during the trial or in the appellate Court. It would be too late in the day to bring a challenge to such a document at this belated revisional stage. There is, however, every force in the submission of the learned counsel for the petitioner that the trial Court as also the appellate Court have failed to notice that the petitioner had been sentenced to three years' R.I. for the sale of 10 cartridges of 7.62 m.m. calibre. The learned Sessions Judge has further fallen into a grave error to withdraw the concession of probation extended to the convict by the Magistrate. The concession of probation is a very salutary provision of law on the subject. But unfortunately it is extended very rarely. It is hight time that this concession is extended to the category of convicts falling within the ambit of section 4 of the Probation of Offenders Ordinance, 1960 (West Pakistan Ordinance No. X L V of 1960). There was no legal justification for the learned Sessions Judge to have withdrawn it on a mere counter‑report. He could indeed do it if the petitioner had been found guilty and convicted.

6. In any case, the sentence of the petitioner to three years' R.I. for selling just 10 cartridges of 7.62 m.m. calibre is rather harsh. While maintaining the conviction of the petitioner under section 13 of the Ordinance, the sentence of three years' R.I. is reduced to that already undergone by him. Necessary reduction warrant may be issued accordingly.

7. I have passed the above short order on 15‑4‑1990. Above are the reasons for my so doing. H.B.T./1306/P Order accordingly.