' M.A. ZAFAR, J.--- This judgment will dispose of Criminal Appeal No,80 of 2008 filed by Muhammad Usman, Muhammad Rizwan, Muhammad Muzafar, Muhammad Ramzan and Muhammad Naseer and Criminal Appeal No,1494 of 2008 filed by Muhammad Usman Butt, appellants convicted and sentenced by the learned Special Judge Anti-Terrorism Court-I, Lahore vide judgment, dated 15-1- 2008 as under:--- Usman Butt alias Bhai
(i) Three years imprisonment with fine of Rs,20,000 under section 13(b) of Arms Ordinance, 1965.
(ii) Seven years imprisonment under section 4 of the Explosive Substances Act, 1908.
Muhammad Rizwan, Muhammad Muzafar, Muhammad Ramzan, Muhammad Usman and Muhammad Naseer
(i) Two years imprisonment each under section 13/20/65 of Arms Ordinance, 1965.
(ii) Seven years imprisonment each with fine of Rs,30,000 each under section 216, P.P.C.
(iii) (iii) Seven years imprisonment each and fine of. Rs,30,000 each under section 21-J of A.T.A.
' The sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. Brief facts of the case are that Muhammad Fiaz Inspector P.W.4 had lodged the complaint Exh.P.A. On 28-12-2006, wherein he stated that on the said day, he along with Zafarullah, A.S.-I., Muhammad Hussain constable, Muhammad Amin Head Constable, Muhammad Azeem constable, Ishaq Bhatti constable, Muhammad Arif constable, Naveed constable, on official vehicle of investigation Police Station Iqbal Town. Haseem Anjum, S.-I. Ijaz Ahmed, A.S.-I. Bashir Ahmed constable, Riasat Ali constable, Abdul Aziz constable, Muhammad Ashraf constable, Naseer Ahmed constable Ashar Ali constable on official vehicle of Police Station Civil Lines were present on the orders of Muhammad Azam Joiya D.I.-G. Investigation, Lahore and they were headed by Muhammad Umar Virk S.P. Inv. Sadar Division, Hussain Habib Imtiaz, S.P. Civil Lines, Lahore for the arrest of Muhammad Aslam Bassa and his companions who were involved in the cases of abduction for ransom. The complainant further stated that he along with above said police was present in Sherwani Colony where S.P. Received information that Aslam Bassa with his companions was present in the house of his relatives in Gujarpura Scheme. On the said information raid was conducted at House No,106, Block B-3, Street No,5 China Scheme in the area of Police Station Gujarpura. The house was encircled and the officers and other police employees entered in the room of above said house where seven persons were on cots and they were apprehended who were Muhammad Aslam Bassa, Usman Butt alias Bhai, Muhammad Rizwan, Muhammad Muzafar, Muhammad Ramzan, Muhammad Usman, Muhammad Naseer. Kalashnikov was recovered from the cot of Aslam Bassa, 24 bullets were unloaded, one hand grenade was also recovered from his cot. From the cot of Usman Butt accused machine gun, one hand grenade, bullets of machine gun and two Patas were recovered, .30 bore pistols from Rizwan, Muzafar, Ramzan, Usman and Naseer accused were also recovered.
3. After registration of the formal F.I.R., the investigation of the case was conducted and the accused persons were challaned to face the trial except the accused Aslam Bassa, who was killed in police encounter on 2-4-2007 and F.I.R. No,203 of 2007 of Police Station City Raiwind was registered.
4. At the trial, prosecution in order to prove its case produced four witnesses in all, P.W.1 Muhammad Anwar A.S.-I. Recorded formal F. I. R . Exh. P. A . /1 on receipt of complaint Exh. P.A. P.W.2 Zafarullah S.-I. Is the eye-witness as well as recovery witness. P.W.3 Muhammad Aslam, Bomb Disposal Commander submitted report Exh.P.K. Regarding hand grenades. P.W.4 Muhammad Fayaz Inspector is the complainant of the case and he reiterated the facts contained in the F.I.R. Exh.P.A./1, thereafter, learned Public Prosecutor after giving up Muhammad Hussain A.S.-I. P.W. Being unnecessary, closed the prosecution case. Then, the statements of the accused persons were recorded under section 342, Cr.P.C. Wherein they have denied the allegations and deposed that they have been involved in this case due to friendship with co-accused and the accused Usman Butt deposed that he was arrested from his house and Azmatullah Gondal, S.P., had involved him in many cases. All the accused neither opted to appear under section 340(2), Cr.P.C. As their own witness on oath nor they have produced witness in their defence.
5. In support of this appeal, learned counsel for the appellants submits that apart from the fact that there is no evidence on record that Aslam Bassa was a proclaimed offender there is not an iota of evidence so far as harbouring the proclaimed offenders by the appellants is concerned. According to learned counsel none of the witnesses has even uttered a single word that the appellant has harboured the proclaimed offender. It is maintained that the prosecution produced only two eyewitnesses namely P.W.2 and P.W.4 but there are material contradictions in their statements.
Learned counsel has drawn our attention to the evidence of P.W.2 and P.W.4 to submit that both the alleged eyewitnesses have contradicted each other on material points. It is argued that there being no report of the Forensic Science Laboratory, mere alleged recovery of arms does not help prosecution case for the reason that nobody knows whether the weapons of offence recovered on the pointation of the appellants were in working condition or not.
6. Mr. Muhammad Tahir Butt, Advocate representing the appellant in Criminal Appeal No,1494 of 2008 adopts the arguments advanced by learned counsel for the appellants in Criminal Appeal No,80 of 2008 with further addition that no pre-requisite sanction as required under section 7 of the Explosive Substances Act, 1908 was obtained as such the whole trial stands vitiated. He next submits that there is clear cut violation of section 103, Cr.P.C. So far as recoveries of ammunition from the appellants are concerned. He has read before us the evidence of the recovery witnesses to point out certain infirmities. In support of his submissions, learned counsel has relied upon the cases, Mushtaq Ahmed v. The State PLD 1996 SC 574, Muhammad Parvaiz v. The State 2005 SCM R 1038, Muhammad Rafiq-ul-Islam v. The State 1998 PCr.LJ 1262 and Adam Khan v. The State PLD 2000 Pesh.
3.
7. On the other hand the learned Deputy Prosecutor-General supports the judgment of the trial Court and opposes the submissions made by learned counsel for the appellants and submits that the requisite sanction contained in section 7 of Explosive Substances Act, 1908 has been taken care by virtue of section 19(8-b) of Anti-Terrorism Act, 1997. According to learned counsel there was no previous background of enmity between the appellants and the raiding party, as a result of raid fire-arms and hand grenades were recovered from the possession of the appellants and the appellants were arrested there and then. Further submits that it is now settled that police witnesses are as good witnesses as any other private witness and the testimony of a police witness cannot be brushed aside only on the assumption that he is a police official.
8. We have heard learned counsel for the parties at length and have gone through the record with their able assistance and have also perused the judgments cited at bar by learned counsel for Muhammad Usman Butt convict/appellant.
9. Muhammad Fayyaz Inspector/Incharge Investigation Police Station Allama Iqbal Town who conducted raid appeared as P.W.4 before the trial Court. The investigation of the case was conducted by Zafar Ullah, S.-I. P.W.2. Both these P.Ws. Were the members of the raiding party. The party on receipt of spy information that Aslam Bassa along with his companions was present in House No,106, Street No,5, Block No,3, China Scheme Gujjarpura, conducted raid, encircled the house mentioned above, entered into the same and witnessed accused Aslam Bassa, Usman Butt, Rizwan, Ramzan, Naseer, Muzaffar and Usman lying on the cots in a room. All the accused were apprehended.. Upon the personal search of Usman Butt accused, a machine gun P.6, two Pattas of machine gun P.7/1-2, 50 bullets P.8/1-50 were taken into possession 'vide memo. Exh.P.D. Similarly, upon the personal search of accused Rizwan one pistol P.9 and five bullets P.10/1-5 were secured vide memo Exh.P.E. Pistol P.11 and six bullets P.12/1-6 were taken into possession from the personal search of Muzafar accused. Ramzan accused was having a pistol P.13 and bullets P.14/1-5 at the time of raid, which. Were taken into possession vide memo. Exh.P.G. Upon the personal search of Muhammad Usman Mouser P.15 and Bullets P.16/1-7 were taken into possession vide memo. Exh.P.H.
Similarly from the personal search of Naseer accused a pistol P.17 and bullets P.18/1-4 were secured vide memo. Exh.P.J.
10. Inspector Muhammad Fayyaz, while appearing as P.W.4 has fully corroborated P.W.2, the investigator, so far as recoveries from the appellants are concerned.
11. A perusal of statement of P.W.2 shows that the raiding party was constituted for the arrest of Aslam Bassa, a P.O. Inspector Muhammad Fayyaz while appearing as P.W.4, in his examination- inchief deposed as under:--- "The accused Rizwan, Muzafar accused, Ramzan accused, Usman accused and Naseer accused had given shelter to Aslam Bassa accused and Usman Bhai accused in their house."
12. Muhammad Muzaffar, Rizwan, Usman and Muhammad Ramzan appellants who were apprehended from the spot along with ammunition have admitted in their statements under section 342, Cr.P.C. That Aslam I3assa was their relative and was a proclaimed offender.
Muhammad Naseer, appellant, deposed that he was involved in the case due to friendship with his co-accused. Aslam Bassa was a known proclaimed offender and the appellants having themselves admitted him to be their relative, cannot be absolved of the knowledge about Aslam Bassa being a proclaimed offender.
13. So far as prior sanction as envisaged in section 7 of the Explosive Substances Act, 1908 (Act No,VI of 1908) is concerned, the same does not hold the field anymore in view of subsection (8-b) of section 19 of the Anti-Terrorism Act, 1997. For the facility of reference the same subsection is reproduced below:--- "Notwithstanding anything contained in section 7 of the Explosive Substances Act, 1908 (VI of 1908), or any other law for the time being in force, if the consent or sanction of the appropriate authority, where required, is not received within thirty days of the submission of challan in the Court, the same shall be deemed to have been given or accorded and the Court shall proceed with the trial of the case."
14. So far as the violation of section 103, Cr.P.C. Is concerned, that is not applicable in cases arising under the Anti-Terrorism Act, 1997. How a private person can dare the risk of his life to a witness against a known proclaimed offender.
15. It is not the case of the prosecution that the fire-arms recovered from the possession of the appellants were in working order or not. The appellants were charged under section 4 of the Act No,VI of 1908. It reads as under:--- "4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property. Any person who unlawfully and maliciously:---
(a) ........................................................
(b) Makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life, or cause serious injury to .Property in Pakistan or to enable any other person by means thereof to endanger life or cause serious injury to property in Pakistan."
16. Muhammad Aslam, Bomb Disposal Commander, Civil Defence Office, Lahore has appeared as P.W.3. The sealed parcel brought before him by F.C. Abdul Hameed contained two hand grenades with detonating assembly, explosive was present in the hand grenades and that the hand grenades were of Russian made. What more was required to prove that the hand grenades recovered from the possession of Usman Butt was an explosive.
17. The discrepancies in the statement of prosecution witnesses pointed out by learned counsel for the appellants are trivial in nature and are not sufficient to believe that the case against the appellants is of doubtful nature. Zafar Ullah S.-I. While appearing as P.W.2 in his examination-in- chief has stated that all the accused were lying on cots in a room. The recovery of hand grenade P.19 was effected underneath the pillow of cot of Usman. It cannot be said that the hand grenade was not recovered from the possession of the convict as he was lying on a cot, pillow was there and underneath that, a hand grenade was lying. The cot being in his possession, how a grenade recovered underneath a pillow lying on a cot can be said to be not in the possession of Usman Butt appellant.
18. We have respectfully gone through the precedents cited at the bar by learned counsel for the appellant but we may observe that the facts of those cases are not identical to the facts of cases in hand.
19. For what has been discussed above we are of the considered opinion that the prosecution has fully proved its case against the appellants to its hilt beyond any reasonable shadow of doubt. The conviction and sentences recorded by the trial Court vide impugned judgment are maintained in toto. However, the sentences recorded against the appellants under section 216, P.P.C., 21-J of Anti- Terrorism Act, 1997 and 4 of Explosive Substances Act, 1908 are reduced from seven years to five years' R.I. However, the sentence of fine is Maintained but in case of default for payment of fine, the appellants have to further undergo 1/4th of the imprisonment awarded for the said offence. All the sentences shall run concurrently with the benefit of section 382-B, Cr.P.C.
20. With the above modification both the appeals are dismissed.