1993 P Cr (PLP)

SH. RIAZ AHMAD, J.

Hidayat Ullah alias Mujahid Hussain alias Sherazi alias Sheraz. alongwith one Muhammad Saddique were tried by a Special Court constituted under the Suppression of Terrorist Activities Act, 1975, on the charges under section 307/34, P.P.C. and section 13 of the Arms Ordinance XX of 1965. Vide judgment dated 16-12-1990, only the appellant was found guilty. He was convicted under section 307, P.P.C. and sentenced to undergo rigorous imprisonment for a term of 7 years and to pay a fine of Rs.5,000 or in default thereof to suffer R.I. for a term of six months. He was given the benefit of section 382-B, Cr.P.C. Similarly, he was convicted under section 13 of the Arms. Ordinance XX of 1965 and sentenced to undergo R.I. for a term of three years. He was also given the benefit under section 382-B, Cr.P.C. The co-accused Muhammad Siddique was, however, acquitted of the charge. The appellant has assailed his convictions and sentences by filing two separate appeals (Criminal Appeal No.60 of 1991 against conviction under section 307, P.P.C. and Criminal Appeal No.61 of 1991 against conviction under section 13 of the Arms Ordinance). This judgment shall dispose of both the appeals.

2. In fact this is a police encounter which took place on 22-4-1990 at about 12-40 p.m. in village Majo Chak, Tehsil Phalia, District Gujrat situate at a distance of 7 miles from Police Station Phalia. A complaint Exh.P.B. was drafted by Umar Farooq Bhatti, D.S.P. at 12-40 p.m. and was sent to the police station where formal F.I.R. Exh.P.C. was recorded by Muhammad Siddique Moharrar Head Constable at 3-00 p.m. The appellant was arrested at the spot and from his possession a Klashnikov P.5 and magazine P.4 alongwith live cartridges P.3/1-105. The Klashnikov and the cartridges were taken into possession vide memo. Exh.P.F. attested by Salch Muhammad P.W.4 and Muhammad Khan P.W.5 besides Umar Farooq Bhatti D.S.P./Investigating Officer. 32 crime-empties P.1/1-32 were also recovered from the spot which were taken into possession vide memo. Exh.P.D. attested by Muhammad Afzal and Munir Ahmad, both police officials, besides the Investigating Officer.

3. With the assistance of learned counsel for the appellant and the State we have carefully perused the entire evidence on the record which reveals that the only two public witnesses, namely Saleh Muhammad P.W.4 and Muhammad Khan P.W.5 were declared hostile and thus, we are left with the testimony of Munir Ahmad P.W.6 and Muhammad Amin P.W.7 besides Umar Farooq Bhatti, D.S.P./Investigating Officer P.W.8. In course of hearing of the appeal, learned counsel argued that he would not assail the conviction of the appellant but instead would contend that the sentence in this case is too severe because none from the police party was injured in this case. We have considered this aspect of the case and we are inclined to agree with the learned counsel for the appellant. Accordingly, while dismissing the appeal (Criminal Appeal No.60 of 1991), we will 'reduce sentence of the appellant from seven to five years: The sentence of fine is also reduced from five thousand to three thousand. In default of payment of fine, the appellant shall suffer R.I. for a term of three months. He will also be entitled to the benefit under section 382-B, Cr.P.C.

4. Adverting to the Criminal Appeal No.61 of 1991, it is contended by the learned counsel that the appellant has almost undergone the sentence by counting the benefit given to him under section 382-B, Cr.P.C. We have also perused the record. We do not find anything helpful to the appellant because he was apprehended at the spot alongwith a Klashnikov and live cartridges. Therefore; we are of the view that the conviction in this case cannot be interfered with. However, since the appellant has almost undergone his entire sentence, therefore, learned counsel for the appellant does not press the appeal which is dismissed. N.H.Q./H-54/L Order accordingly