1. ' MRS. SYEDA TAHIRA SAFDAR, J.---It is a jail appeal, preferred by convict Bilal Ahmed son of Sarfraz Khan, being aggrieved of judgment dated 12-4-2010 of Special Judge, Anti-Terrorism Court-II, Quetta, whereby he has been convicted for the offence under section 4(b) of the Explosive Substances Act, 1908, thereby awarded sentence to suffer rigorous imprisonment for a period of seven years with benefit of section 382-B, Cr.P.C. The only contention of the appellant is that the case as made out against him is absolutely false.
2. As it is a jail appeal, therefore, Mr. Abdul Karim Yousafzai, Advocate was appointed as counsel for the convict on State expenses through order dated 25-5-2010. Learned counsel for the appellant A contended that as proper sanction was not obtained from the Provincial Government for prosecution of the case as required under section 19(8-b) of Anti-Terrorism Act, 1997, therefore, the proceedings conducted by the trial Court was in violation of relevant provisions of law. It was further his contention that the F.I.R. Has been registered by CIA, who has no authority to make investigation in the matter; rather their only duty is to assist the police. It was his contention that the Investigating Officer was bound to investigate the matter independent of the material collected by CIA, but this has not been done in present case, which adversely affected the case of the prosecution. The learned counsel further argued that no report of Expert is present on record, nor even the material alleged to be recovered was got examined by the Expert. Rather only an unauthorized report has been produced during course of evidence, which was not admissible in evidence under the law. But the trial court placed reliance on it, therefore, the findings arrived by the trial court are in contravention with the relevant provisions of law. The learned counsel lastly contended that as a false case has been made out against the appellant, which the prosecution has failed to establish, in result thereof, the appellant is liable to be acquitted of the charge. In reply the Special Prosecutor, ATA, argued the matter, thereby fully supported the findings arrived by the trial Court, with assertion that the recovery of the 'hand- grenades, and the appellant being in possession thereof are the admitted facts, on the basis of the material present on record. It was further his argument that the prosecution witnesses corroborated the statements of one another, and no material contradiction appeared in their statements, therefore, the trial court rightly relied on the same. He requested for dismissal of the appeal.
3. ' It is case of the prosecution that the appellant was apprehended by CIA personnel, who were on patrolling duty on 24-1-2010 at 5-00 p.m. Near Killi Kharoti on some information. And on search from side pocket of the appellant two hand-grenades with detonators were recovered, whereupon Commander of Bomb Disposal Squad namely Shamsullah was called, who after reaching at the site defused the hand-grenades, and issued a certificate. The parcels of recovered articles were prepared. The matter was reported on the same date at 6-15 p.m., whereupon F.I.R. No,11 of 2010, Police Station Pishin, District Pishin registered. Further, the investigation was deputed to Muhammad Amin Jaffar SI, and after completion of the investigation the polite report/challan was submitted. On receipt thereof the appellant was charged for the offences punishable under sections 3 and 4 of the Explosive Substances Act, 1908, read with section 7 of Anti-Terrorism Act, 1997 on 13-3-2010, to the effect:- "It is alleged that on 24-1-2010 you were apprehended by CIA personnel near Killi Kharoti at 5 p.m.
4. And from your personal search two hand-grenades along with detonator were recovered, which you were carrying for the purpose of terrorist activity. "
5. ' On denial the trial commenced. Three witnesses appeared from prosecution side, while in defence the appellant/accused neither recorded his own statement on oath, nor produced any defence.
6. The trial court through judgment dated 12-4-2010, while arriving to the conclusion that the charge has been proved against the appellant, convicted him for the offence, thereby sentenced him to suffer rigorous imprisonment for a period of seven years. The convict being unsatisfied with the judgment preferred instant appeal through jail.
7. ' Prosecution witness No,1 (P.W.1) Hizbullah SI appeared as eyewitness of the occasion, he is also complainant of the case. He confirmed the contents of F.I.R. Exh.P/3-A, and the written report placed on record as Exh.P/1-B. He has also produced seizure memo of recovered articles as Exh.P/1- A being its author. The parcel of the articles was also prepared by the witness. While P.W.2 Shahabuddin Head Constable is also an eye-witness of the occasion, he being marginal witness of the seizure memo Exh.P/1-A, corroborated the statement of P.W.1. As far. As P.W.3 Muhammad Amin SI is concerned, he is the Investigating Officer, during course of his statement he produced F.I.R.
8. Exh.P/3-A, police report/challan Exh.P/3-D. He also produced Article P/3-A, the Certificate issued by Shamsullah Head Constable, after defusing the recovered hand-grenades at the site. The Investigating Officer P.W.3 in order to establish the plea taken by the prosecution that the recovered articles were sent for chemical analysis, and Expert's opinion as required, placed on record a letter, and its reply as Exh.P/3-B, and Exh.P/3-C. This is the whole evidence produced to establish the case as made up by the prosecution.
9. The first contention raised by the learned counsel for the appellant was to the effect that the proceedings conducted by the trial Court were in utter violation of section 7 of the Explosive Substances Act, 1908, because no sanction had been obtained from the Provincial Government for prosecution of the case. The learned Prosecutor-General, Rubina Butt conceded the fact that no such sanction was obtained. It may be so, but it is to be observed that as per contents of section 7 of Explosive Substances Act, 1908 consent of the Provincial Government is required. Section 7 of the Act reads as under:-- "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."
10. As the appellant was tried by a Special Court constituted under Anti-Terrorism Act, 1997, therefore, the procedure provided therein should be adopted. Section 19 of the Act provided the procedure, while subsection (8-b) of the section is relevant, which reads as under:-- "19 (8-b) 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."
11. ' In view of the quoted provision the argument of the learned counsel looses its weight. The proceedings were rightly held by the trial Court against the appellant.
12. The learned counsel for the appellant mostly stressed that no power vests in CIA to investigate a case, rather their prime duty is to assist the police authorities. But in present case the investigation has been made by CIA therefore, the case of prosecution stands on unauthorize investigation, thus of no legal effect. The learned trial Judge discussed this objection at length while disposing of the matter, and arrived to the conclusion that it is a mere irregularity and not an illegality, thus cannot vitiate the case of the prosecution, which otherwise based on convincing and direct evidence.
13. Reference has been made to a judgment of honourable Supreme Court reported in PLD 1997 SC 408, which has been rightly relied upon by the learned trial Court. The honourable Supreme Court thereby held:-- "18. As regards the question, as to whether the above illegality/irregularity if already committed by the C.I.A personnel would vitiate the trial, it may be observed that subsection (2) of section 156, Cr.
14. P. C. Expressly provides that: 'No proceedings of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate". It is an admitted position that the C.I.A. Is part of the police Force.
15. It is in fact a special branch carved out from the police force for special purpose. The violation of section 156(1) of the Cr.P.C. May not vitiate trial if no serious prejudice has been caused to the accused person concerned resulting in miscarriage of justice in view of above subsection (2) of section 156, Cr.P.C., but it does not mean that the C.I.A. Personnel should knowingly violate the above provision of the Cr. P. C. On the contrary, they are legally duty bound to ensure the supremacy of law."
16. ' In present case the personnel of CIA has not made the investigation, rather their act confined only to the extent of apprehending of the suspected person, effecting of recovery, preparation of seizure memo and parcels. The Investigating Officer was separately appointed, who do the job, and submitted police report/challan before the court. In view of the facts, and the judgment relied upon, the act of C.I.A. Does not vitiate the proceedings, as it is nowhere established that prejudiced has been caused to the appellant, being accused of the case.
17. As far as argument of the learned counsel for the appellant to the extent of non-production of Expert's opinion, and wrongly placing reliance by the trial Court on report submitted by a member of Bomb Disposal Squad is concerned, requires consideration. The prosecution during course of trial tendered Art P/3-A as an opinion of Expert, which in fact was prepared by Head Constable Shamsullah being a member of Bomb Disposal Squad, Pishin, that too only to the effect that he defused two hand-grenades, Russian made, and handed them back to the Incharge CIA, nothing more, but it is not enough. This article cannot be treated as a document covered by. The provisions of section 510, Criminal Procedure Code, which reads as under:- "510. Report of Chemical Examiner, Serologist etc. Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or of the Chief Chemist of Pakistan Security Printing Corporation, Limited, or any Serologist, Finger Print Expert or Fire-arm Expert appointed by Government upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code: ' Provided that the Court may if it considers necessary in the interest of justice summon and examine the person by whom such report has been made."
18. ' In view of the section the production of Chemical Examiner, Assistant Chemical Examiner, Serologist, Finger Print Expert or Firearm Expert subject to appointed by the Government are not required. Rather the reports submitted by them be deemed to be a document, and can be used as evidence in any inquiry, trial or other proceedings under this Code i,e, Criminal Procedure Code.
19. While discretion lies with the court either to summon or examine person by whom such report has been obtained or otherwise. In present case Article P/3-A is not a Report given by a Fire-arm Expert, rather it is only a certificate of confirmation of the fact that the mentioned official has defused two hand-grenades, and handed them to the concerned officer. Keeping in view the contents of Art P/3-A, it cannot be treated as a piece of evidence, nor can be tendered as such in view of section 510, Cr.P.C. This article also cannot be deemed to be a public document, thus without calling the Author of the document it cannot be considered as a piece of evidence under the provisions of Article 85 of Qanun-e-Shahadat Order, 1984.
20. The learned counsel for the appellant while arguing the matter emphasized that the alleged recovered articles were not got examined by the Fire-arm Expert, as no report disclosing Expert's Opinion was brought on record. The learned counsel further pointed out that there is only an effort on the part of the Investigating Officer, that too, only to the extent of providing an explanation about non-examination of the material by an Expert during course of investigation. The learned counsel referred to the statement of .The Investigating Officer, who deposed that he referred the recovered articles to Civil Defence for analysis, but due to lack of facility it was returned to him. The learned counsel while referring the letter, and its reply produced as Exh.P/3-B and Exh.P/3-C raised contention that both are in same handwriting, thus cannot be relied upon, as there is also an admission on the part of Investigating Officer to the effect. It was further his argument that the Investigating Officer failed to produce the letter sent to Special Branch for the purpose of analysis of the recovered material. In reply the learned State Counsel strongly refuted the arguments made by learned counsel for the appellant. It was his contention that correspondence was made, but due to non-availability of the facilities Expert Opinion cannot be obtained till date.
21. In present case, it is an admitted position that the recovered material was not sent to Ballistic Expert for obtaining his opinion. Rather, the Investigating Officer tried to obtain an opinion from Director Civil Defence, Government of Balochistan to the effect that the recovered hand-grenades are in workable condition or otherwise, but remain unsuccessful. Therefore, it is an admitted position that there is no report of Ballistic Expert in respect of recovered article. But this fact is to be kept in mind that sending of the recovered material for an Expert opinion is not mandatory in all cases, rather it varies from case to case. Furthermore, though opinion of an Expert is an important piece of evidence, but it is also, an established principle that where the prosecution establishes its case with direct, and confidence-inspiring evidence, then in the circumstances, the report of an Expert is of less value. Rather, the report will be a help in confirming or explaining the factual aspect of the case. The honourable Supreme Court of Pakistan in case led "Muhammad Hang v. The State" reported in PLD-1993 Supreme Court 895 provides guidelines for assessing the evidence produced in shape of expert's opinion. It was held:-- "---The Expert's evidence may it be; medical or that of Ballistic Expert, is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence, but if there is direct evidence as in the instant case, which is definite, trustworthy, the confirmatory evidence is not of much significance. In any case, it cannot outweigh the direct evidence."
22. ' The view taken therein is also relied upon by their lordships while deciding cases:-- Sardar Khan v. The State 1998 SCM R 1823 Sarfraz alias Sappi v. The State 2000 SCM R 1758 Noor Muhammad v. The State 2005 SCM R 1958 ' Keeping in view the same, the direct evidence, which does not suffer from any other inconformity can be relied upon, While the Report of an Expert will be only a corroborative piece of evidence. In present case P.W. Hizbullah; and P.W.2 Shahabuddin are witnesses of the occasion, while their statements are in confirmatory with the case as made up by the prosecution. There are no material contradictions or variations found in the statements of both these witnesses, and any mala fides are asserted on their part. Therefore, in view of the fact that the appellant is only charged to the extent of having in his possession two hand-grenades, and nothing more, therefore, the opinion of the Expert in the circumstances will be a corroborative piece of evidence, and even in its absence the direct evidence can be relied upon. Furthermore, section 27-A of Anti-Terrorism Act, 1997 provides a presumption against a person being found in possession of any explosive substance. In view of material present on record the prosecution has discharged the burden while establishing recovery of explosive substance from possession of the appellant; therefore, the burden shifted on the appellant to establish the contrary. But no specific plea has been taken by the appellant, nor he produced any witness, nor even recorded his statement on oath during course of trial, thus failed to discharge the burden.
23. ' In view of above discussion, the appellant has failed to make out a case in his favour, therefore, the appeal is dismissed being without merits.