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Criminal Appeal No. 324 of 1978, decided on 21st August, 1983.

-.-- S. 13 (d)-Accused found asleep in jungle armed with gun and bandolier of cartridges and failing to produce. licence r- Police Officials, only mashirs available at time of arrest of accused and recovery of unlicensed arms-In absence of independent mashirs being available at place of arrest, statement of police mashirs cannot be ignored, simply on ground that mashirs were police officials Record showing statements of such police officials straightforward and convincing-Accused alleged no personal enmity against such mashirs-No discrepancy found in statement of Investigation Officer and mashirnama of recovery-Conviction of accused by trial Court, upheld.-[Recovery].

P L.D 1961 Pesh. 137 and-1976 P Cr. L J 480 ref.

K: B. Bhutto for Appellant.

Imam Bux for the State.

Date of hearing : 16th August, 1983.

Appellant above-named, being aggrieved by judgment, dated 16th December, 1978 of the learned Additional Sessions Judge, Dadu, in Sessions Case No. 208 of 1974, by which appellant has been convicted under section 13 (d) of the West Pakistan Arms Act and sentenced to suffer further R. I. for 2 years and to pay fine of Rs. 500 is default to suffer further R. I. for six months, has preferred the above appeal, on the following facts and grounds :-

It is the case of the prosecution, that on 22nd November, 1972 S. H. O. Bahawal Khan of Jobi Police Station went towards Nain Gaj for investigation of crime No. 137/1972 under section 382, 307, P. P. C. It is alleged that in the jungle near WAPDA Quarters, he found a person asleep on the ground, who was identified by H. C. Ghulam Ali to be appellant Buxial required in crime No. 19/1972 under section 302, P. P. C. As the appellant was armed with a gun and a bandolier of cartridges containing 5 live cartridges, the same were secured and he was asked to produce a licence which he failed to present. On opening the gun it was found to contain 2 live cartridges. In presence of H. C. Muhammad Panah and H. C. Ghulam Ali a mashirnama of arrest and recovery was prepared and a case under section 13-D of the Arms Act was registered against him. On completion of investigation the appellant was sent up in the lower Court and he was committed by learned Civil Judge and F. C. M. Johi for trial.

At the trial appellant Buxial pleaded not guilty to the charge, while the prosecution examined H. C. Muhammad Panah and S. H. O. Bahawal Khan.

In his statement under section 342, Cr. P. C. appellant Buxial denied the possession of gun or the cartridges. He alleged that the witnesses have deposed against him at the instance of Allan Khan Lighari without assigning any reason for it. No evidence in defence was however adduced.

The learned trial Court taking into consideration the evidence adduced before it. convicted and sentenced the appellant above-named, 'as herein before mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in memo of appeal.

The learned counsel for the appellant in support of above appeal submitted as under :-

(a) All P. Ws. examined were Police officials.

(b) Seized articles were not shown to mashirs, before the learned trial Court at all.

(c) The version of recovery given by I.O. in his statement and mashir nama differs materially.

(d) In the alternative, appellant has remained in custody as under trial prisoner for 4 months and 25 days and after conviction for 23 days and since incident is of 1972 end of justice will be fully met, if sentence of the appellant is reduced to one already by him.

In support of above contentions the learned counsel relied upon cases reported in P L D 1961 Pesh. 137 and 1976 P Cr. L J 480.

The learned counsel appearing for the State on the other hand sub mitted, that it was impossible to get independent P. Ws. at the time of arrest and recovery from appellant. Appellant has alleged no enmity at all against P. Ws. and as such he fully supports the impugned judgment.

I have carefully considered the above submissions made by the learned counsel before me and have gone through the R & P of the learned trial Court and impugned judgment as well as through cases cited by the learned counsel for appellant.

I find no force in the contentions that have been urged by the learned counsel for the appellant before me. Keeping in view the facts anti circumstances of the case, the only mashirs which could have been avail, able at the time of the arrest of the appellant would have been police officials. No doubt independent mashirs are always preferred in such cases, but in the absence of independent mashirs being available at the place of arrest, the statements of police mashirs cannot be ignored, simply on the ground, that the mashirs are police officials. In the present cash I have gone through the statement of Head Constable and S. H. O. and found their statements straightforward and convincing. The appellant has alleged no personal enmity against these two P. Ws. I find that the recovered property was available before the trial Court and was shown to the S. H. O. and I find no discrepancy in the statement of I.O. and mashirnama of recovery. In view of this, I see no reason to disagree with the conclusion and findings arrived at by the learned trial Court.

However, it may be noted, that the case is of November, 1972 and appellant was convicted on 16th December, 1978 and has remained on bail since January, 1979 and has also remained in jail as under-trial prisoner for 4 months 25 days and after conviction 23 days. In view of this it would be unfair to remand the appellant back to judicial custody and the end of justice will be fully met, if the sentence of the appellant is reduced to the. period already undergone by him.

Therefore, while dismissing the above appeal on merits, I reduce the sentence of imprisonment awarded to the appellant from two years, to a period already undergone by him and maintain the fine of Rs. 500 imposed on him by the impugned judgment. However, I grant one month time to the appellant to pay the fine of Rs. 500 imposed op him and on his such payment, the bail bonds executed by the appellant shall stand discharged. In case the appellant fails to pay the fine imposed on him within the period allowed, the learned trial Court is directed to issue non bailable warrants for his arrest and on his arrest to remand him back to judicial custody to serve out sentence in lieu of fine imposed on him, by the impugned judgment, dated 16th December, 1978.

M. Z. M. Appeal dismissed.

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