1992 PLP 346 (MLD)

MUHAMMAD MUNIR KHAN, J: ‑‑This criminal appeal arises from the ‑judgment of Presiding Officer, Special Court (Suppression of Terrorist Activities), Gujranwala, whereby he on 16‑5‑1990 convicted Javaid appellant under section 5 of the Explosive Substances Act, 1908 and sentenced him to seven years' R.I. His property was also confiscated to the Government.

2. The charge against the appellant was of keeping unlicensed one hand grenade in the Dub of his Dhoti on 27‑11‑1987. He denied the charge and claimed to be tried.

3. To prove its case, the prosecution produced three witnesses. Ghalib Hussain A.S.I. (P.W.1) drafted the formal F.I.R., Naseem Khalid constable (P.W.2) and Muhammad Zafarullah A.S.I. (P.W.3) are the witnesses of recovery. They stated that on 27‑11‑1987, they raided the house as the appellant to arrest him in a case under section 307, P.P.C. On seeing the police party, he tried to run away but was apprehended. His person was searched and hand grenade P.1 was recovered from the Dub of his Dhoti and he was not holding any permit or licence to keep the hand‑grenade.

4. When examined under section 342, Cr.P.C. the appellant denied the recovery of hand‑grenade P.1 from him. He produced three witnesses in defence. Lal Khan D.W.1 stated that the appellant was required in a case relating to fight with Shana party, which was registered on 12‑11‑1987, so he produced him before the police. Sardar Ali D.W.2 was Councillor of the Chak. He stated that he had produced the accused before the police in a criminal case on 14‑11‑1987. Mazhar Abbas constable (D.W.3) stated that there was no entry in the daily diary of 2‑6‑1988 with regard to the arrival and departure of Shahid Mahmood Khan P.W. He further stated that Moharrir Malkhana had received one hand‑grenade on 27‑11‑1987 but no entry was made.

5. The learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubt, that no independent witness was associated to witness the recovery of hand grenade from the appellant and that the defence witnesses have successfully rebutted the allegations against the appellant. The learned counsel for the State has supported the conviction and sentence of the appellant.

6. We have considered the submissions made by the learned counsel for the appellant with care. We do not agree with him. We find that Muhammad Zafarullah and Naseem Khalid P.Ws. had gone to the house of the appellant to arrest him in case under section 307, P.P.C. for which they were not obliged to associate two respectable persons of the locality with them. When they knocked at the door and the appellant opened it, he was already having hand grenade in the Dub of his Dhoti. On his arrest, the hand‑branded was A recovered from his person, so there was no occasion to associate the respectable of the locality to witness the recovery of hand granade from the appellant. Naseem Khalid and Muhammad Zafarullah P.Ws. hive successfully faced the test of cross‑examination. They have no motive to plant the hand granade on the appellant. The statements made by Lal Khan and Sardar Ali D.Ws do not rebut the prosecution case and the evidence produced by it. The hand granade was allegedly recovered from the appellant on 27‑11‑1987. The statements made by the D.Ws. do not relate to this date. We do not see any legal infirmity in the statements of the two police officials. Their statements cannot and should not be rejected for the reason of the office they hold. The statements made by them do not suffer from material contradictions/major discrepancies or dishonest improvements. For these reasons, we are convinced that the appellant has rightly been convicted by the trial Court under section 5 of the Explosive Substances Act, 1908. This brings us to the question of sentence. The appellant is not a previous convict and the sentence of seven years is a bit harsh, so it is reduced to five years' R.I. The appellant will also get the benefit of the provisions of section 382‑B, Cr.P.C. With this reduction in the sentence, the appeal is dismissed. N.H.Q./J‑5/L Conviction upheld/Sentence reduced.