1988 PLP 1817 (SCMR)

Date of hearing: 8th June, 1888. ABDUL KADIR SHAIKH, J.‑‑This is a petition for leave to appeal from the judgment of a Division Bench of Baluchistan High Court dated 17‑4‑1988 dismissing an appeal filed by the petitioner by which while setting aside his convictions under Section 4 of the Explosive Substance Act, 1908 and 13(d) of the Arms Ordinance, 1965, the one recorded against him by the Special Court under Section 5 of the Explosive Substance Act was maintained for which he was sentenced to 10 years' R.I. Facts briefly stated are that Police Party headed by A.S.I. Abdul Salam arranged Nakabandi at Bogra Road, Chaman on 7‑2‑1987 at about 5.30 p.m. during which they stopped the petitioner and on his personal search three hand‑grenades with detonators and two slabs of explosive material were secured from him. In support of the charges levelled against the petitioner prosecution produced Head Constable Sher Muhammad, A.S I. Abdul Salam, Muhammad Siddiq, the Expert, the Magistrate who recorded the judicial confession of the petitioner and others. Petitioner in defence denied the prosecution allegation and produced two witnesses. The trial Judge however, relied upon the prosecution evidence as to the recovery of the explosive material from the petitioner and also his judicial confession and held him guilty under Sections 4 and 5 of the Explosive Substances Act, 1908 and section 13(d) of the Arms Ordinance. On appeal, the learned Judges in the High Court after re appraisal of the prosecution case acquitted the petitioner of two charges, namely Section 4 of the Explosive Substances Act, 1908 and 13(d) of the Arms Ordinance but held him guilty under Section 5 of the Explosive Substances Act, 1908 and upheld the sentence of 10 years' R.I. thereunder. Mr.M.Riaz Ahmed, learned Advocate‑on‑Record appearing in support of the petitioner firstly submitted that the evidence with regard to judicial confession allegedly made by the petitioner not having been put to him in his statement under Section 342 of the Code of Criminal Procedure cannot be taken into consideration against him. Learned counsel further submitted that prosecution evidence as to the recovery of the explosive substance from him is totally un reliable and could not have been the basis of his guilt for the crime. After having gone through the record of the case, we find that even if the prosecution evidence as to judicial confession of the petitioner is excluded from consideration, there is no justification for interference with the impugned judgment of the High Court for the guilt of the petitioner has been based on the other evidence produced by the prosecution which has been held to be the proper and safe basis for the foundation of his guilt in the crime. In this regard, we may usefully reproduce the following portion of the judgment of the High Court "It is contended by the learned counsel for the appellant that no independent witness had attested the memo of recovery as such the recovery is in effective. This contention. has no force. The P.W.2 has specifically stated that he had called few persons to act as Mashirs but they were reluctant. It is now common knowledge of everybody that no public man either witnesses such recovery or gives statement about actual fact. No enmity has been alleged against the P.Ws. and there is no reason to falsely implicate the appellant. If the statements of two defence witnesses be believed that they were present at the time of search then the mere fact that they had not been implicated in the crime goes to prove that the investigation has been conducted honestly. The witnesses are consistent in their statements about the recovery of incriminating articles. The expert had examined the articles and gave a positive statement and the certificate is in positive. The overall conclusion is that the evidence on record fully establishes the guilt of the appellant." Since we find that guilt of the petitioner for the crime has been based on the evidence produced by the prosecution which was legitimately held to be reliable and conclusive on the charge for which he has been held guilty, there is no scope for interference by this Court. The petition is, therefore, dismissed. M . Y . H . / H‑46/ S Petition dismissed.