1998 P Cr (PLP)

HAMID ALI MIRZA, J.‑‑‑ This is an appeal under section 7 of Suppression of Terrorist Activities Act, 1975 directed against the judgment of conviction passed by learned Judge Special Court III constituted under Suppression of Terrorist Activities Act, 1975 whereby appellant has been convicted under sections 4 and 5 of the Explosive Substances Act and sentenced to suffer R.I. for seven years and to pay fine of Rs.10,000 in case of default in payment of fine to suffer further six months' imprisonment in a Criminal Case No.29 of 1994, F.I.R. No. 166 of 1994, Police Station Gulshan‑e‑Iqbal, State v. Muhammad Rafiqul Islam, hence this appeal. Brief facts of this case are that on 17‑3‑1994 at 21‑10 hours Muhammad Saif, Police Constable Police Station Gulshan‑e‑Iqbal, Karachi, lodged the report stating therein that on the said date at about 20‑10 hours he was standing in front of his house when he received spy information that there was a man present in Coaster vehicle with unlicensed arm and hand‑grenade in front of Taj Dry Cleaners Shop. On getting the said information he alongwith Muhammad Siddique and Niaz residents of Ziaul Haq Colony came to the pointed place and saw a Coaster vehicle No.CH‑9822 parked there and also saw a person sitting in the said Coaster who was apprehended and on enquiry the said person disclosed his name as Muhammad Rafique son of Muhammad Raees, resident of House No.L‑311, Sector II, North Karachi, when the said person was searched, one carbine and seven cartridges were found wrapped with upper side of his right leg, so also one live hand‑grenade with fuse and pin wrapped in white piece of cloth were found from the lower portion of dashboard of the said vehicle. The said Muhammad Saif, Police Constable, prepared such memo. of arrest and recovery of appellant/accused in presence of said Mashir and brought the appellant/accused and the abovesaid case property to police station. After usual investigation the present appellant/accused was challaned before the trial Court. The trial Court framed the charge Exh.7 against the appellant/ accused that he on 17th day of March, 1997 at about 20‑10 hours at Katcha Road, Gulshan‑e‑Iqbal, Karachi, alongwith absconding accused Maulana Ali Ahmed was found in possession of one hand grenade and on enquiry he could not produce any licence for the same and thereby committed an offence punishable under section 4/5 of the Explosive Substances Act to which he pleaded not guilty as per Exh.7/A. Prosecution examined P.W.1 Ghulam Mohiuddin, the owner of the coaster as Exh.8 who produced the photo copy of registration certificate of the said coaster, P.W.2 Muhammad Siddique taxi driver, the Mashir of memo. of recovery of one carbine, 7 cartridges from the person of appellant and one hand‑grenade with fuse from the lower portion of dashboard of coaster as per memo. Exh.9/A, P.W.3 Nazeer Ahmed, S.I.P. who has been examined in place of Constable Muhammad Saif who lodged the F.I.R. but was murdered on the same date and before that he had handed over memo. Exh.9/A, hand‑grenade and seven cartridges to him and also he had registered the F. I. R. Exh.I

1. He has also sent hand‑grenade to Officer Incharge Bomb Disposal Unit, who sent his report as per Exh.12. Prosecution gave up P.W. co‑Mashir Niaz as per Exh.13 and closed its side as per Exh.14/C. The appellant/accused was examined under section 342, Cr.P.C. wherein he denied the charged offence and stated that he was innocent and has no knowledge about the hand‑grenade that it was lying in the dashboard and it was a killing weapon. The appellant/accused did not examine any witness in defence. After recording of evidence and hearing the counsel for parties, the impugned judgment of conviction was, passed by the trial Court. We have heard the learned counsel for appellant and for State. The main points for consideration in this case are whether the appellant could be said to have been found in possession of hand‑grenade on the said date on the basis of evidence; (ii) whether the proceedings in absence of requisite consent of Provincial Government as required under section 7 of Explosive Substances Act would vitiate the trial and (iii) whether the conviction and sentence could be maintained. So far recovery of hand‑grenade, learned counsel Chowdhary Muhammad Iqbal for State stated that he would not support the conviction and sentence passed by the trial Court on the ground that case disclosed in the F.I.R. was inconsistent to the evidence adduced by the prosecution considering as well that testimony of P.W.2 Muhammad Siddique was not confidence inspiring who was the only witness of alleged recovery of hand‑grenade. P. W. 1 Ghulam Mohiuddin Exh.8 is the owner of coaster vehicle and has not deposed anything about the recovery of hand‑grenade from the coaster but has only deposed that appellant/accused was his driver and on the said date the appellant had asked 2/3 days before Eidul Fitr that he had to take his relatives to Gadani for offering Fatiha so he needed said vehicle and for that he had fixed Rs.1,000 as fare for the trip. So far P.W.2 Muhammad Siddique who is only Mashir of alleged recovery of hand‑grenade, deposed that the appellant/accused was sitting in the coaster police searched his person in his presence as well as in presence of co-?Mashir when seven cartridges, one carbine were recovered from the appellant from his side pocket and when police opened dashboard of coaster from where, one white bag was secured which on opening was found to contain one hand grenade with fuse. Police prepared such memo. Exh.9/A, which bore his signature. In cross‑examination he stated that Mashirnama was prepared in the coaster and case property was taken by police but was not sealed in his presence. He stated that P.C. Muhammad Saif was known to him for five years before incident as they have been residing in the same locality. He further stated that police called him after 2/3 hours from his house at police station and obtained his signatures and some documents were prepared by one Nazeer and Exh.9/A was prepared by A.S.I. and signed by him. One Niaz Ahmed, barber was also called at police station by A.S.I. Nazeer Investigating Officer and obtained his signature on Exh.9/A. He has also stated that he had not seen the paper prepared by P.C. Muhammad Saif prepared at the spot and the memo. Exh.9/A was not read over to him and he was not aware of the contents and that carbine was not tied with the right thigh of the appellant. The case of prosecution in the F.I.R. was that the informant P.C. Muhammad Saif received spy information that appellant/accused was having unlicensed arm and hand‑grenade in his possession, consequently, he took Muhammad Siddique and Niaz Ahmed as witnesses to the place pointed by spy where he found the appellant/accused present in the coaster who disclosed his name as Muhammad Rafiqul Islam and on his personal search one carbine and seven cartridges were secured wrapped in piece of cloth with his right thigh besides one hand‑grenade wrapped in white cloth was found from the drawer just below the dashboard alongwith live fuse and pins. The above statement made in the F.I.R. would appear to be inconsistent to the testimony of P.W.2 who has denied presence of co‑Mashir Niaz Ahmed at the time of recovery and also denied that one carbine and seven cartridges were found wrapped in a cloth with his thigh. P.C. Muhammad Saif who lodged F.I.R. and allegedly secured the hand‑grenade and seven cartridges could not be examined because of his murder on the same day. The only testimony of Muhammad Siddique does not appear to be confidence inspiring because of his inconsistencies in his testimony and that of the prosecution case as disclosed in F.I.R. and memo. Accordingly, it could be safely said that the prosecution has failed to produce reliable satisfactory and confidence inspiring evidence to support the case that the hand‑grenade alongwith other ammunition was secured from the possession of the appellant/ accused. Next point for consideration is whether in absence of permission as required under section 7 of the Explosive Substances Act would vitiate the trial of the case. Section 7 of the said Act runs:‑‑ "7.??????? Restriction on trial of offences.‑‑‑ No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the Provincial Government. Comments Sanction for prosecution for holding trial under section 7 of Act mandatory and a condition precedent sanction for prosecution of accused under section 5 of Act, however, produced after conclusion of trial proceedings, held, concluded in express violation of prohibitory and mandatory provision of law and hence vitiated trial. Conviction and sentence of accused set aside, in circumstances." Reference may be made to Syed Mukhtar Hussain v. State 1984 PCr.LJ 2.181 1 wherein their Lordships observed that sanction for prosecution for holding trial under Explosive Substances Act as required under section 7 is mandatory and condition precedent for prosecution of accused under section 5 of the said Act. In absence of the requisite sanction/permission, entire proceedings taken would be void and without jurisdiction, consequently, the conviction and sentence E passed could not be sustained. In view of the aforesaid reasonings on the first two points, the conviction and sentence cannot be maintained having been based in absence of reliable and confidence inspiring evidence as well as for want of proper sanction/permission as required by section 7 of the Explosive Substances Act. We, accordingly set aside the conviction and sentence and allow the appeal. These are the reasons for short order, dated 12‑12‑1997. H.B.T./M‑265/K ???????????????????????????????????????????????????????????????????????????????? Appeal allowed.