' QAISER RASHID KHAN, J.---This is an appeal filed by the appellant, namely, Habibullah son of Amanullah, against the judgment dated 24-5-2011 passed by the learned Judge, Special Court/Additional Sessions' Judge-V, D.I. Khan in case F.I.R. No,86 dated 6-10-2009 registered at Police Station Kulachi vide which he has been convicted (i) under section 5 of the Explosive Substances Act 1908 and sentenced to five years' R.I. And (ii) under section 13 of the West Pakistan Arms Ordinance 1965 sentenced to three years' R.I. With payment of fine amounting to rupees five thousand, in default of fine to further undergo three months' simple imprisonment. Both the sentences to run concurrently and the appellant also given the benefit of section 382-B, Cr.P.C.
2. As per F.I.R. Lodged by Muhammad Ashraf Khan Incharge SHO of Police Station Kulachi, on 6-10- 2005 he along with police' party was present on the place of occurrence when at about 1800 hours, he noticed an armed person who on seeing them started running but when followed was overpowered and disclosed his name as Habibullah son of Amanullah. From his possession, a Kalashnikov bearing No,1975-413171 with a fitted magazine, bandolier having forty rounds of 7.62 bore, three hand-grenades, five cartridges of .12 bore and an empty charger of .30 bore were recovered.
3. After completion of investigation and submission of challan, the accused was put on trial where the prosecution produced and examined five witnesses, namely, Muhammad Tariq Head Constable as P. W.1, Tariq Jamshed Head Constable/Investigating Officer as P.W.2, Muhammad Khalid Constable as P.W.3, Aminullah Constable as P.W.4 and Muhammad Ashraf Khan S.H.O. As P.W.5 and closed its evidence.
4. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. But he denied the allegations in toto. However, he neither produced any defence evidence nor opted to examine himself on oath under section 340(2), Cr.P.C.
5. The learned trial Judge on weighing the evidence brought on record and in view of the arguments addressed at the bar found the accused guilty of the offence charged with an thus on conviction sentenced him as mentioned above, hence this appeal.
6. We have carefully gone through the record of the case and anxiously considered the arguments of the learned counsel for the parties.
7. According to section 7 of the Explosive Substances Act 1908, sanction of the Government for prosecution of an accused charged for the offences falling thereunder is mandatory. Reference in this context is made to 1998 PCr.LJ 1262.
8. In the instant case, no such sanction has been exhibited during evidence and thus conviction of the appellant under section 5 of the Act ibid is not sustainable in the eye of law.
9. Article 18(4) of the Police Order 2002 provides as under:-- "All registered cases shall be investigated by the investigation staff in the district under the supervision of the head of investigation".
10. In the present case, the investigation was conducted by Tariq. Jamshed, Head Constable, who was not competent to investigate the matter, and thus his investigation can at best be described as defective investigation. Reliance in this respect is placed on 2007 PCr.LJ 89 (Karachi).
11. The record further reveals that neither the report of Bomb Disposal Unit was exhibited and nor for that matter any question was put to the appellant regarding the same when his statement under section 342, Cr.P.C. Was recorded. Therefore, the appellant cannot be saddled with any liability with an unproved report of the Bomb Disposal Unit to which no legal sanctity is attached.
12. Moreover, though the appellant has been convicted on the basis of recoveries mentioned in the F.I.R. As well as in the recovery memo, but the alleged recovered incriminating materials were not put to the accused while his statement under section 342, Cr.P.C. Was recorded so as to solicit his explanation qua the alleged recoveries made from his person. The Superior Courts have held that in that event, such an incriminating piece of evidence cannot be used against the accused for awarding any conviction. Reliance in this respect is placed on the case law reported as 2010 SCM R 1009, head notes 'd' and 'e'.
13. During the course of arguments, learned State counsel while on the one hand vehemently supported the impugned conviction and sentences of the appellant, but on the other hand could not come up with satisfactory replies to the shortfalls and contradictions in the case set up by the prosecution.
14. As far as the conviction and sentence of the appellant under the Explosive Substances Act 1908 is concerned and as discussed above in detail, neither the mandatory sanction under section 7 of the Act ibid was exhibited, nor the report of the Bomb Disposal .Unit was exhibited or any question put to the appellant when his 'statement under section 342, Cr.P.C. Was recorded, nor for that matter the alleged incriminating materials were put to him when his said statement was recorded, nor compliance to Article 18(4) of the Police Order 2002 was shown when the investigation of the case was assigned to a Head Constable. We, therefore, hold that the impugned conviction and sentence thereunder are not maintainable under the law. The same are accordingly set aside and the appellant is acquitted of the said charge.
15. From the evidence brought on record, the prosecution has been able to bring home guilt against the appellant to the recovery of a Kalashnikov from his possession and thus his conviction and sentence under section 13 of the Arms Ordinance is maintained. However, in view of peculiar circumstances of the case, the same is reduced to that already undergone by him.
16. As a result, the appeal is accepted and the appellant is directed to be set at liberty forthwith if not wanted in any other case.
17. Above are the reasons for our short order of even date.