THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Jail Appeal No.303 of 2024

 

  Present:       

                                                                                                                          Mr. Justice Shamsuddin Abbasi

 

Appellants                 :          Akhtar Bangash through Mr. Zahoor Ahmed, advocate

Respondent               :           The State through Mr. Mr. Neel Parkash, D.P.G.

Date of Hearing        :          29.04.2025

Date of Judgment      :          29.04.2025

 

JUDGMENT

 

Shamsuddin Abbasi, J.- Akhtar Bangash son of Ameer Bux appellant was tried by learned Additional District and Sessions Judge-VIII, Karachi West in Sessions Case No.1855/2023, arising out of FIR No.382/2023, for offence under section 23(1)(a) of the Sindh Arms Act, 2013, registered at P.S. Manghopir. After regular trial, vide judgment dated 17.04.2024, appellant was convicted under section 23(1)(a) of Sindh Arms Act 2013 and sentenced to undergo R.I for 07 years with fine Rs.10,000/-, in default whereof to undergo S.I for 6 weeks. Benefit of section 382-B, Cr.PC was extended to appellant.

2.         Brief facts leading to filing of instant appeal as mentioned by trial Court in the impugned judgment are that on 08.06.2023 at about 0930 accused Akhtar Bangash son of Amer Bux along with others committed robbery by using pistol, which was snatched by complainant of main case, namely, Rizwan and caught hold to appellant/accused, thereafter, called police and handed over the custody of accused with pistol 30 bore along with magazine, containing one live round in presence of mashirs. Hence the subject FIR.

3.         After usual investigation, challan was submitted against the appellant under above referred sections. Trial Court framed Charge against the appellant at Ex.02, to which he pleaded not guilty and claimed trial.

 

4.         At trial, prosecution examined PW-1 Rizwan Kekar at Ex.3, PW-2 IO/ASI Fazal Muhammad Khan at Ex.4 and PW-3 SIP Abdul Qayyum at Ex.5, they produced certain documents. Thereafter, learned DDPP closed the prosecution side at Ex.7.

5.         Trial Court recorded statement of accused under Section 342 Cr.PC at Ex.8. Appellant claimed false implication in this case and alleged that pistol has been foisted upon him. He denied the prosecution allegations. Appellant neither examined himself on oath under section 340(2) Cr.PC in disproof of prosecution allegations nor led any evidence in his defence.

6.         Trial Court after hearing the learned counsel for appellant, prosecutor and while examining the evidence, convicted and sentenced the appellant by vide judgment dated 17.04.2024 as stated above. Hence, the appellant has filed instant appeal against his convictions and sentence.

7.         Learned counsel for appellant after arguing the matter at some length submits that he would not press the instant appeal on merits in case conviction and sentence awarded to appellant are reduce to the period he has already undergone, contending that the appellant has no previous criminal record in his credit; he is not a dangerous, desperate and hardened criminal as well as not a previous convict and served sufficient portion of his sentence; that due to his confinement in jail his family members (especially minor children as observed by learned trial Court in the impugned judgment) are passing a miserable life and that the appellant will prove himself as a law abiding citizen and will not indulge in any unlawful act in future.

8.         On the other hand, learned DPG while supporting the impugned judgment has argued that prosecution has successfully proved its case against the appellant beyond any shadow of a reasonable doubt, therefore, the appeal merits no consideration and is liable to be dismissed. He, however, not disputed the submission of learned counsel for appellant with regard to conversion of sentence into the period already undergone and extended his no objection to that extent

9.         I have heard the learned counsel for appellant, learned DPG for the State and gone through the entire material available on record with their able assistance.

10.       A keen look to the record reveals that all the prosecution witnesses while appearing before learned trial Court have supported the case of prosecution and involved the appellant in the commission of offence, leaving no occasion for his false implication due to any ill-will or animosity. Thus, I am in agreement with the submission of learned DPG that the prosecution has successfully proved its case against the appellant beyond shadow of any reasonable doubt and the appeal merits no consideration.

11.       Insofar as the submission of learned counsel for appellant with regard to conversion of sentence into the period already undergone on the ground that the appellant is not a dangerous, desperate and hardened criminal as well as not a previous convict is concerned, suffice to observe that the appellant has served out sentence of 05 years 11 months and 8 days as on 28.04.2025 as reflected from the jail roll and the family of the appellant, per learned counsel, is passing a miserable life due to his confinement in jail and as observed by learned trial Court in para 19 of the Judgment while sentencing the appellant had taken a lenient view. Needless to say that normally, it is very difficult for a family to survive without support of earning member of the family. The position, being so, would be nothing but causing misery to the family of appellant on account of his act. The peculiar facts and circumstances, so pleaded by the counsel for the appellant, having gone unchallenged by prosecution may well be taken into consideration for departing from the normal practice. Learned counsel for appellant has also submitted that the appellant will prove himself as a law abiding citizen and will not indulge in any unlawful act in future. He is a first offender and has no previous criminal history in his credit and is the only earning member of his family as well as served a sufficient portion of his sentence, therefore, it would be appropriate that the appellant may be given an opportunity to improve himself to be a law abiding citizen.

12.       Keeping in view the above facts and circumstances of the case, I am of the considered view that prosecution has discharged its burden of proving the guilt of appellant beyond any shadow of reasonable doubt, thus the appeal, insofar as it impugns conviction, is dismissed on merits. However, while entertaining the plea that appellant is sole bread earner of his family, who is passing a miserable life, and the appellant is not a previous convict, I find it a fit case for departure from the normal practice of determining the quantum of sentence. Jail roll reflects that appellant has served the sentence of about 6 years, including remissions and by now he has to undergo the remaining sentence of about 1 year, therefore, in my view it would serve both the purposes of deterrence and reformation, if the sentence is modified and reduced to one already undergone. Accordingly, the sentence awarded to the appellant through impugned judgment dated 17.04.2024 is modified and reduced to one already undergone, fine is remitted in the peculiar circumstances of the case. The appellant shall be released forthwith if not required to be detained in any other custody case.

13.       The Criminal Appeal No.S-303 of 2024 stands disposed of in the above terms.

 

 

 

 

 

                                                                                      J U D G E

 

Gulsher/PS