1. ' MUHAMMAD ZAHOGRUL HAQ, J.-This is an appeal from the judgment a Special Judge, High Court, Karachi, dated 6th February, 1983 whereby the appellant Muhammad Sultan was convicted under section 5 of the Explosive Substances Act, 1908 and sentenced to suffer R. I. For two years after taking into consideration the detention of the appellant as an under trial prisoner for 14 months.
2. ' The F. I. R. In the case was lodged on 29th November, 1981 at Malir Police Station, Karachi at 14-50 hours on the basis of a statement sent by Arshad Kamal Kiyani, P. W. 5 stating that while he was in the Court he received spy information that Shahid Hameed alias Kalu Butt who had absconded from Attock Jail and was wanted in a case of Gulshan-e-Iqbal Police Station was expected to reach the house of one Muhammad Bachal in Malir Colony. The complainant sent for police reinforcement from C. I. A. Centre and took with him Muhammad Yakoob, P. W. 2 and Muhammad Jamal, P. W. 4 and reached the house of Muhammad Bachal at H-29/8, Malir Colony and started guarding the said house. At about 13-00 hours associates of Shahid Hameed namely Muhammad Sultan, Mehram, Muhammad Bachal and Wazir Ali appeared from the East and stopped at the gate of Muhammad Bachal. They were surrounded and on a personal search of Muhammad Sultan from his right hand a cloth bag was recovered which contained two hand grenades on the bottom of which No, 36 M. M. K.-I P.
0. F.- 1968 was written, they had black colour and in the middle there was a red wide line.
3. Muhammad Sultan was arrested and memo. Was prepared. Unlicenced arms were recovered from the other three persons accompanying Muhammad Sultan for which separate memos. Were prepared. Thus, concluded the F. I. R.
4. ' The accused and the hand grenades were taken to the C. I. A. Police office where hand grenades were sealed. The hand grenades were sent to expert for examination and report. The statement of Sub-Inspector Kiyani was received by P. W. I, S. H.
0. Malir who produced the same as Exh. 4 and he recorded the same and registered the F. I. R.
5. Under section 154, Cr. P. C. As Exh.
6. 5.
7. ' P. W. 2 Muhammad Yakoob stated that he was going in a taxi near Khokrapar Colony. Near Jinnah Square when he was stopped and told that some persons were suspected of being in possession of arms and explosive and he was wanted as a witness. They went to a place near Jinnah Square.
8. Four persons came out from the house, one of them was Sultan. They were arrested. Sultan was holding a cloth bag in his right hand which was found to contain two hand grenades. Same was secured, meshirnama was prepared, articles were sealed in separate parcels in respect of each accused. Memo. Of recovery of hand grenades was Exh. 6 which was witnessed by this witness and it bears his signature. He denied in cross-examination that he had been taken from C. I. A. Office.
9. He stated that he was made a mashir for the first time. He stated that all the four persons were coming in the street and were arrested by the police. He asserted that mash irnama was prepared at the spot. He identified the hand grenades present in Court which had been recovered from the accused, Sultan.
10. ' Rasheed Khan, P. W. 3 stated that he received two hand grenades alongwith two detonators from C. I. A. Police, on 30th November, 1981 for examination. He was Platoon Commander in the Bomb Disposol Head Quarter. He examined the same. The marking of P.
0. F. Lot No, 2, 1968 was embossed on both the grenades. Date of manufacturing was also embossed with the mark of T. N. T, on the grenades. According to this witness both the grenades were fully serviceable, and they are dangerous and can cause considerable damage to life if exploded. He prepared the report Exh. 7-A. He stated that the grenades with detonators shown to him in Court were the same. In his cross-examination he stated that he served for 25 years in the Air Force as Explosive Expert. He stated that the grenades were sent to him packed in paper envelopes and cloth bag and in Court these grenades were brought sealed in a piece of cloth.
11. There was however, no marking or number on the packing. He said in cross-examination that he had examined thousands of hand grenades and he had formed his opinion on the basis of their construction details and marking thereon. The red line around the upper portion of the grenades shows that it is filled with high explosive. He stated. That if similar other grenades bearing same marking as the present grenades, are mixed up with these ones, then it would be difficult to differentiate between them. In re-examination he stated that the seals of both the hand grenades in Court are intact which means there are explosives inside them. He further stated that a grenade is dangerous with detonators attached with them. The report of this witness is Exh. 7-A which shows that two grenades were inspected and found to be live and serviceable. The markings were P.
0. F. 2-1968 Dark Brown with one red band and letters T. N. T. The report also states that the grenades are a close combat weapon and explosion causes considerable damage to life and property, being filled with high explosive contents (T. N. T.).
12. ' P. W. 4 Muhammad Jamal stated that he was taking some passengers in his taxi towards Jinnah Square on 29th November, 1981. He was stopped by police at 1-00 p.m. He was made a mashir. They concealed themselves and found four persons coming from a street. They were held up for interrogation. One of those four persons was appellant Sultan who was holding a cloth bag which was secured from him a-1 two hand grenades were found wrapped in that bag. They were secured and a mashirnama Exh. 7 was prepared which bears his thumb-impression. In cross-examination he stated that the hand grenades were produced in sealed bag today and were desealed in presence of the Court. He denied that he was a witness in any murder case or in any case under section 13-D Arms Ordinance against Allah Ditta or in any case under section 307, P. P. C. Against Muhammad Saeed. He stated that he had picked up passengers from Lalukhet on that day. He denied that Mr. Kiyani had picked him up from the city Courts. His passengers intended to go to Malir. He did not know the police people before. He also stated that three other persons were also arrested alongwith the accused. He denied that he did not see the incident and stated that in his presence the police did not put any mark on the hand grenades.
13. ' P. W. 5 Arshad Kamal Kiyani who was Investigating Officer in this case stated that on 29th November, 1979 he had gone to Sessions Court to give evidence in some case. He received spy information that one Shahid Hameed alias Kalu Butt who was reported to be a notorious dacoit was present in Malir. He rang up to C. I. A. Office for more men. He himself reached Malir at 12-55 p. m. His staff had already reached there including S.-I. Faiz Muhammad and A. S.-I. Jafar Hussain. He stopped one taxi and requested the driver to take them to the point where the wanted person-was reported to be present. P. W. Muhammad Jamal was -driver of the taxi and one' Muhammad Yakoob was passenger of that taxi and both were requested to be mashirs, They went to a House No, H-29/8 near Jinnah Square, Malir and saw four persons including the appellant coming out of the house. They were surrounded and their persons were searched. The appellant Muhammad Sultan was holding cloth bag in his hand which contained two hand grenades. They were secured, vide memo. Exh.
7. He sent his report to Police Station Malir which is Exh. 4 and the formal F. I. R. As Exht.
5. He brought the accused alongwith hand grenades to C. I. A. Office and sealed the hand grenades at the office which were sent later to the Platoon Commander of the Bomb Disposal for examination and report. He received sanction from the Home Department for prosecution of the accused Exh. 9-A. The persons of the three companions of the appellant Sultan were also searched and some arms were secured from their possession for which they were separately charged. He challaned the accused. In cross-examination he stated that he had gone to the Sessions Court in connection with a complaint in which he was an accused. He had recorded the statements of mashirs Muhammad Yakoob and Muhammad Jamal at the spot and they had also accompanied him to C. I. A. Office. He admitted that the place of incident was thickly populated. He stated that Muhammad Jamal had not stated that he was driving taxi at the time when he was stopped by him. He stated that Muhammad Jamal had told him that the four persons were coming from the house. He stated that Muhammad Jamal was a witness in respect of the searches of the persons of .The companions of the appellant. He admitted that Muhammad Yakoob mashir was also a witness in Cases Nos. 204/1982, 229/1982 and 205/1982 as well as Case Nos. 171/1981, 386/1981, 161/1981, 162/1981 and 163/1981. It is, tho-efore, apparent that Muhammad Yakoob, P. W. Is a witness in a number of cases of Police. Sub-Inspector Kiyani denied that he knew S. M. U. Shah or that he was his friend. He denied that this case had been fabricated against the accused at the instance of S. M. U. Shah. He denied that the accused was arrested during night and he had pressed him to vacate the house of S. M. U. Shah. He denied that he searched any house bearing No, 152/B in Jaffar-e-Tayyar Society Malir or that he recovered any personal gun of the accused from his house. He denied that the mashir in that case were stock witnesses who were available to him in any case.
14. ' Exh. 9-A is the sanction of the Government of Sind, Home Department, dated 24th January, 1982 where it is mentioned that on 29th November, 1981 Arshad Kamal Kiyani and police party had arrested Muhammad Sultan and recovered from his possession two hand grenades No, 36-MMK, P.
0. F. 1968 (Live) and that this gave rise to reasonable suspicion that he did not have the said explosive substance for lawful object, and the Government of Sind after applying its mind to all the facts and circumstances of the case was of the opinion that Muhammad Sultan should be prosecuted under section 5 of the Explosive Substances, Act, 1908. The last para. Mentions that under section 7 of the Explosive Substances Act, 1908 the Provincial Government of Sind gives its consent for trial of Muhammad Sultan under section 5 of the Explosives Substances Act 1908 and authorises Sub-Inspector Arshad Kamal Kiyani, to lodge a report/complaint before the Special Court constituted for Suppression of Terrorist Activities (Special Court Ordinance), 1974, for Sind.
15. ' The appellant in his statement under section 342, Cr. P. C. Denied that he had been searched on 29th November, 1979 at 12-05 p.m. By the police and that two hand grenades and detonators were secured from him. He stated that he had seen the hand grenades and the detonators for the first time in the Court. In respect of witnesses he stated that they had deposed falsely at the instance of his landlord who wants to evict him from his house. Lastly he stated that his landlord, S. M. U. Shah wants to eject him from his house and he had filed nine cases against him. Witnesses Muhammad Yakoob and Muhammad Jamal are hired witnesses of the police. He produced certified copies of challans in those cases as Exhs. 10/A/1 to 1-A/9. These Eths. Pertain to some cases where Muhammad Yakoob is shown as police witness. However, witness Muhammad Jamal is shown as a witness only in those three other cases which were registered on the same date viz. 29th November, 1981 in respect of the same incident where the appellant Sultan and his three companions were arrested and, therefore, P. W. Muhammad Jamal was a witness of the police only in those 4 cases which were registered on the same day and, therefore, Muhammad Jamal cannot be called a stock witness of the police by any stretch of imagination.
16. ' D. W. 1 Abdul Majeed stated that he was A. S.-I. Of Malir Police Station, on 1 1 the September, 1979 when S. M. U. Shah had filed a case against Sultan and his son regarding theft but it was found to be false. This witness is of no consequence to the defence as he does not connect any one of the witnesses with S. M. U. Shah.
17. D. W. 2 was Ikhtiar Ahmad who is son of the appellant and he has stated that the police had arrested him and his father at about 3-00 a. m. In that night when they were sleeping. They were taken to the police office and on their request the police took them to the house of his cousin near linnah Square who was also taken into custody. Then they were taken to the police station. They were beaten and compelled to vacate the house and shop. He was later on allowed to go but his father was detained and he was told later that his father has been involved in a case for possessing hand grenades. He admitted in cross-examination that Wazir and Bachal are cousins.
18. They lived one mile from their house. He was kept in custody for 8-9 days. He did not make any application against the police for unlawful detention. He denied that the police had arrested the appellant alongwith Muharram, Muhammad Bachal and Wazir Ali. He denied that he was not present in his house at the time of arrest of his father or that he was deposing in order to save his father.
19. ' Mr. Usman Ghani Rashid, the learned counsel for the appellant had argued that the prosecution evidence was not sufficient to warrant conviction of the appellant. We do not agree with this submission as we find that P. W. Arshad Kamal Kiyani has stood his test in cross-examination and nothing had been brought by the defence against Arshad Kamal Kiyani which could demolish his testimony before the Court. The defence has failed to connect Arshad Kamal Kiyani with the landlord of the appellant namely S. M. U. Shah whom the appellant has alleged to have been the cause of this case against him. The deposition of P. W. Arshad Kamal Kiyani is fully supported by P.
20. W. Muhammad Jamal who was a driver of a taxi and against whom there is no allegation of animosity against the appellant or of his being a stock witness of the police. P. W. Muhammpd Jamal was a taxi driver and he was taken as a mashir while he was on way to Malir. The depositions of P. W. Arshad Kamal Kiyani and P. W. Muhammad Jamal are also supported by P. W.
21. Muhammad Yakoob. It is correct that P. W. Muhammad Yakoob appears to be a witness who has appeared in a number of cases for the police, but even the exclusion of his statement does not affect the deposition of two other witnesses namely Arshad Kamal Kiyani and Muhammad Jamal against whom the defence had not been able to substantiate any allegation. In cross-examination of Kiyani nothing was suggested to him that he was in any way inimical to appellant Sultan.
22. ' The factum that the hand grenades was a dangerous weapon has been fully proved by P. W. 3 Rasheed Khan who has 25 years experience as an Expert.
23. ' The defence witnesses have not been able to prove innocence of the appellant. D. W. Abdul Majeed has not connected S. M. U. Shah the alleged landlord of the appellant, with any one of the prosecution witnesses and hence the dispute of the appellant with S. M. U. Shah is of no consequence in this case. D. W. Ikhtiar Ahmed is a son of the appellant and the story that he has given about the arrest of the appellant and D. W. 2 and his cousin at 3-00 a. m. At night has not even been referred to by the appellant in his statement under section 342 of Cr. P. C, and the same is, therefore, a mere imagination of D. W. 2 who is naturally expected to support his father. It is surprising that this D. W. Ikhtiar Ahmed who is alleged to have been kept in unlawful confinement for more than a week has not even cared to file even an application before the higher police authorities against his unlawful detention or against foisting of a false case upon the appellant.
24. Therefore, story of D. W. 2 has no substance.
25. ' It was argued that P. W. Muhammad Yaqoob was a stock police witness. This submission is correct but in view of the fact that P. W. Muhammad Jamal is an independent witness and P. W. Arshad Kamal Kiyani. Who although a police officer has been found to be not interested against the appellant in any manner, therefore, the depositions of Arshad Kamal and Muhammad Jamal are quite reliable and P. W. Muhammad Yakoob's statement could be ignored as a matter of abundant caution.
26. It was also submitted that no respectable persons of the locality hay been examined as witnesses of the case in spite of the fact that the local area was thickly populated. In this respect we cannot forget that not single question had been asked from the Investigating Officer as to why he did not take any person of the locality as a witness of the recovery memo. Of arrest and, therefore, proper foundation has not been laid by the defence in respect of this submission. Moreover, the prosecution has proved that the Investigating Officer Kiyani started from the Sessions Court for the purpose of looking for Shahid Hameed in Malir and that they had picked up Muhammad Jamal and Muhammad Yaqoob in Malir and since Muhammad Jamal is found to be an independent witness, therefore, this submission about lack of respectable local witnesses is not fatal to the prosecution case in the circumstances of the case. Moreover, in case the police had tried to involve the witnesses of neighborhood the accused may have been informed of the presence of the police and th whole purpose of the raid would have. Been completely lost and, therefore, it was necessary for the police to conceal their identity. Since the police had concealed themselves near the relevant house, therefore, they were able to apprehend the appellant. In these circumstances the absence of respectable persons of the locality as witnesses of the recovery Would not damage the prosecution case. Moreover section 103, of Cr. P. C. Is not squarely attracted in this case as the appellant was arrested out side the house and hence search of a house was not involved in the case of the present appellant to attract the provisions of section 103, of Cr. P. C.
27. ' Appellant's counsel also submitted that the appellant was school teacher and he was, therefore, a very unlikely person to commit this offence. We do not feel any force in this submission. If the allegations in this case then mere fact that the appellant is school teacher would not have been proved against the appellant by reliable evidence as it was don absolve him from the responsibility in crime.
28. It was urged that the memo. Of recovery does not mention any detonators and, therefore, the detonators have been introduced later on in order to strengthen the case of the prosecution. We do not find any justification in this submission. In the first instance it was not really necessary for the police to introduce detonators if they were not originally fixed in the hand grenades as hand grenades itself contains T. N. T. Explosive Substance as deposed by P. W. Rasheed Khan, therefore, even if there were no detonators in hand grenades the appellant could have been convicted for possession of an explosive substance. Moreover, detonator is a component part of the hand grenades and, therefore, it was not obligatory for the Sub-Inspector to mention particularly that the detonators were fixed in the hand grenades. We have seen a large number of cases where rifles have been shown to have been recovered in the recovery memos. Without a separate mention being made of the bolt and the magazine although bolt of the rifle as well as magazine can be taken out with the slightest of efforts but no mention of the same is separately made as they are integral parts of the rifle. Similarly, there was no necessity to specially mention the detonators being fixed in the hand grenades and hence the submission of the counsel in this regard is not found to be of any consequence.
29. ' Mr. Usman Ghani Rasheed had pointed out same .Minor inconsistencies in the statement of P. Ws.
30. Muhammad Yakoob, Muhammad Jamal and Arshad Kamal Kiyani in respect of the purpose of visit being the arrest of Shahid Hameed or arrest of some persons who were in possession of arms or the purpose of visit in P. W. In the Sessions Court. We find hardly any substance in this matter because Shahid Hameed was required in a case of dacoity and he was absconder having absconded from Attook Jail and, therefore, he could be reasonably expected to be duly armed.
31. Moreover, purpose of visit to Sessions Court is hardly a relevant matter. The learned counsel has tried to point out some other minor and irrelevant discrepancies in the statements of witnesses but the same are of no consequence as we find that the statements of these three witnesses of the occurrence are quite consistent in respect of the main incident and hence some discrepancies here and there are hardly sufficient to discredit them. In fact it is now an admitted position in law that the minor discrepancies in the statements of the witnesses in respect of some details are in fact aID ground to believe their statements as being of more veracity. We are thus of the view the prosecution has fully proved its case against the appellant without a serious blemish against the same.
32. ' The learned counsel also contended that the hand greandes had not been sealed at the place of recovery and their sealing at the C. I. A. Office shows that there was a change with other land grenades and that in any case the hand grenades shown in the memo. Of recovery are black whereas the report of the expert shows that they are dark brown. We do not agree. In the first instance all the three P. Ws. Muhammad Yaqoob, Muhammad Jamal and Kiyani have stated in Court that the band grenades produced in Court were the same which were recovered from the appellant. They were not cross-examined at all on this point. Sub-Inspector Kiyani had himself stated that he sealed them in the C. I. A. Office and he was not cross-examined that he had changed the hand grenades. Moreover, once the factum of the recovery of hand grenades from the appellant is fully proved and the Investigating Officer has stated that he had sealed them in the C. I. A. Office, therefore, one cannot understand as to what difference is really made in this case when there is no allegation of substitution made at all by defence. Moreover, we find that not a single question has been put to any witness in respect of colour of the hand grenades and hence this objection is of no consequence particularly in view of the fact that dark brown and black come quite close to each other. Moreover, the markings of the hand grenades is the same. In any case hand grenades is not an article of common use even with the police and, therefore, its substitution would have been a difficult matter. There was hardly any occasion for the police to substitute the hand grenades. The Bomb expert Rasheed has clearly said that the grenades in Court were the same which were sent to him for test.
33. ' Lastly Mr. Usman argued that the sanction for prosecution Exh. 9-A was not a proper sanction. His submission was that since mention had been made of lodging of complaint before the Special Court constituted for Suppression of Terrorist Activities (Special Court Ordinance), 1974 for Sind, therefore, it was not a proper sanction because there was no Special Court constituted under 1974 Ordinance which was existing in 1981. His submission was that Act XV of 1975 had repealed the Ordinance of 1974 and, therefore, it was only a Special Court constituted under Act XV of 1975 which could be mentioned in the sanction order. We pointed out to the counsel that this point had neither been taken before the Special Court which tried this case and was a Judge of the High Court nor this point was taken in the Memorandum of Appeal filed by the learned counsel for the appellant himself and, tberefore, this point was hardly available. We further pointed out that this point should have been taken as first point in the appeal because if this point was allowed then the rest of the time taken in hearing the argument on merits would have meant an exercise in futility, Counsel had no answer to these objections. However, we examined this point. We find that there is no substance in this submission. Argument was that Suppression of Terrorist Activities (Special Court)
34. Ordinance, 1974 (Ordinance XVIII of 1974) was repealed by Act XV of 1975 namely Suppression of Terrorist Activities (Special Court Act), 1975 and hence the Special Court existing in 1980 would be the Special Court constituted under Act XV of 1975 and not under Ordinance XVIII of 1974 and hence the sanction of lodging complaint before the Special Court constituted for Suppression of Terrorist Activities (Special Court) Ordinance, 1974 was not a valid sanction. We find that the provision of consent required in respect of trial for possession of explosive substances is provided in section 7 of the Explosive Substances Act of 1908 and the same requires sanction for prosecuting the person in Court. The same does not require that the sanction should mention a particular Court for the trial of the offences. The said section reads as under :- "No Court shall proceed to the trial of any person for offence against this Act except with the consent of the Provincial Government." This section, therefore, merely stipulates the consent of the Provincial Government to the prosecution of the person proceeded against and does not specify that any particular Court is to be prescribed in the sanction order of the Government for the purpose of his trial. We are, therefore, of the view that the first part of the operative part of the sanction in question was valid and sufficient for the purposes of section 7. We reproduce that part "NOW, THEREFORE, in exercise of the powers conferred on it under section 7 of the Explosive Substances Act, 1908, the Provincial Government of Sind hereby gives its consent for trial of the said MUHAMMAD SULTAN S/O MUHAMMAD ILYAS under section 5 of the Explosive Substances Act, 1908."
35. This much was sufficient for the purposes of sanction under section 7 of the Explosive Substances Act, 1908 and no mention of any Court thereafter was necessary. Therefore, the later part of the said sanction mentioning the Special Court constituted for Suppression of Terrorist Activities (Special Court) Ordinance, 1974 for Sind was a mere surplusage and irrelevant. Hence the sanction is not vitiated. Moreover, we are further of the view that the sanction having been given in January, 1982 there was no Court existing in 1982 as a Special Court constitution under Ordinance 18 of 1974 and the Special Court was only constituted under Act 15 of 1975, therefore, it was a mere clerical mistake committed in this order of sanction.
36. In this respect defence counsel wanted to argue that because there had been mention of wrong Court in the order of sanction, therefore, the sanctioning authority has not applied its mind to the facts of the case and hence the same is not proper. We do not agree with this submission. The sanctioning order clearly mentions that two hand grenades were recovered from the possession of Muhammad Sultan by police party headed by Arshad Kiyani and according to us those were the relevant circumstances which should have been considered by the Provincial Government in giving the sanction and since they have been considered, therefore, this sanction has been properly made. Consequently we do not find any ground for interfering in the order of conviction and, therefore, this appeal is dismissed.