' JUSTICE AJMAL MIAN (CHAIRMAN).---This is an appeal against the judgment dated 2640-1991 passed by the learned Court of Special Judge for Speedy Trials-II, Lahore, convicting the appellant for the first count under section 7(1)(a) of the Surrender of Illicit Arms Ordinance, 1991 (Ordinance XX of 1991), hereinafter referred to as the Ordinance, and sentencing him to imprisonment for life and ordering forfeiture of his entire movable and immovable property, and further convicting him for the second count under section 13-B(b) of the West Pakistan Arms Ordinance, 1965 (Ordinance XX of 1965), hereinafter referred to as the Ordinance of 1965, and sentencing him to R.I. For ten years and a fine of Rs,10,000 or in default in payment of fine, to undergo further R.I. For one year. It was also ordered that the above sentences shall run concurrently.
2. The brief facts are that an Anti-Dacoity Staff inter alia comprising Muhammad Feroze, Inspector, Atif Hayat, S.I., Shah Muhammad, S.I., held on 13-9-1991 at 7-00 a.m. Nakabandi at Pul Khera situated within the limits of Police Station, Bata Pur, Lahore. They stopped Car No,234-191 Karachi, which was driven by one Ejaz Mahmood. The appellant was sitting on the front seat with said Ejaz Mahmood, whereas the third person Muhammad Mansha was sitting on the rear seat. On making search from the appellant's pocket, one handgrenade was found and 30 bullets of Kalashnikov from his bag.
From Ejaz Mahmood and Muhammad Mansha, Kalashinkov and stengun, respectively, were recovered. The above two persons were charged under the provisions of the Ordinance whereas the appellant was charged under the above provisions of the Ordinance as well as under the aforesaid provisions of the Ordinance of 1965. They were tried separately and were convicted separately. The appellant has been convicted and sentenced for the above two counts in the above terms. The appellant has, therefore, filed the present Jail Appeal.
3. Miss Yasmin Saigol has been engaged by the State. In support of the above appeal, she has urged as follows:--
(i) that as the appellant was charged under section 7(1)(a) of the Ordinance, he could not have been charged for the same offence under section 13 of the Ordinance of 1965;
(ii) that since the Investigating Officer, Muhammad Feroze Inspector, who investigated the case, was not examined, the trial vitiated and, therefore, conviction cannot be sustained; and
(iii) that the parcel containing handgrenade was sent to the Chemical Analyser after the expiry of nearly one month and, therefore, no reliance can be placed on the result of the Chemical Analyser's report.
4. In support of her first submission that as the appellant was charged under section 7(1)(a) of the Ordinance, he could not have been charged for the same offence under section 13 of the Ordinance of 1965, Miss Yasmin Saigol has invited our attention to sub-clause (iii) of clause (a) of subsection (1) of section 2 of the Ordinance, which reads as follows:-- "(iii) all types of containers, grenades, bombs and shells that discharge poisonous or noxious gases or other chemicals or substances which cause damage to human body;"
' According to her, bullets are also covered by the above clause as the words "other chemicals or substances which cause damage to human body" used in it are of wide import as to include bullets. However, she conceded that possessing bullets is a distinct offence under section 13-B(b) of the Ordinance of 1965. In furtherance of her above submission, she has relied upon the case of Akhtar Hassan Khan v. The State (1974 SCM R 199), in which the Supreme Court, while construing the provisions of section 161, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947, held that an offence under the former section, is a specie of an offence included under the latter Act and, therefore, an accused could be charged under either or both sections, but the punishment
5. The question, therefore, arises, as to whether possessing of bullets can be equated with possessing and not surrendering a handgrenade under sub-clause (iii) of clause (a) of subsection
(1) of section 2 of the Ordinance. We are unable to subscribe to the submission of Miss Yasmin Saigol that the words "other chemicals or substances which cause damage to human body" employed could not be awarded more than once for the same offence.
' In above sub-clause (iii) of clause (a) of subsection. (1) of section 2 of the Ordinance, would cover bullets. We will have to read the above sub-clause (iii) as a whole. A perusal of the same indicates that it covers containers, grenades, bombs and shells, which discharge poisonous or noxious gases or other chemicals or substances which cause damage to human body. A bullet does not contain poisonous or noixous gas or other chemicals or substances of the nature referred to in the above sub-clause. It carries a different meaning. It will suffice to refer the definition of the word "bullet" from Chambers' Twentieth Century Dictionary, which is as under:-- "bullet" n. a little ball (obs.); a projectile, now esp. One (round or conical) discharged from a kind of small-arm: a plumb or sinker in fishing. n. Bullet-head, a round head: an obstinate fellow (U.S.) - adjs. Bullet-headed; bullet proof, proof against bullets."
6. It may be observed that by no stretch of imagination, the above definition of bullet can cover other chemicals or substances referred to in above sub-clause (iii) of clause (a) of subsection (1) of section 2 of the Ordinance. In this view of the matter, the appellant committed two distinct offences under the two different statutes. Additionally, the nature of the offence in the two statutes is also distinct, inasmuch as under the Ordinance, a person becomes liable to punishment in terms of section 7 thereof if he does not surrender illicit arms which includes handgrenade etc. Within the notified period, whereas under the Ordinance of 1965, a person becomes liable to be punished for possessing arms or ammunition. We are, therefore, of the view that the learned Special Court has rightly convicted and awarded separate sentences for the above two offences.
7. Adverting to the second submission of Miss Yasmin Saigol that since the Investigating Officer who investigated the case was not examined, the trial vitiated and, therefore, conviction cannot be sustained, it may be stated that the fact that Muhammad Feroze, Inspector, had gone to perform Umra and was at the relevant time on one month's ex-Pakistan leave, has not been disputed by the learned counsel for the appellant. However, it was urged by her that non-examination of the Investigating Officer had prejudiced the appellant and, therefore, the conviction cannot be sustained. In this regard, it may be pertinent to point out that under section 8 of the Special Courts for Speedy Trials Ordinance, 1991, it has been provided that the Special Court shall decide the case within thirty days and for any delay, sufficient reasons shall be recorded. Keeping in view the above provision of the Ordinance and the factum that the recovery of the handgrenade and 30 bullets was made in presence of above Muhammad Feroze and P.Ws.2 and 3 Atif Hayat and Shah Muhammad, who were parties to the recovery memos., non-examination of Muhammad Feroze has not, in any way, prejudiced the appellant. The present case cannot be equated with an ordinary murder case in which an Investigating Officer has to take a number of steps and he is not an eye-witness. The above two witnesses P.Ws.2 and 3 have proved the memos. Of recovery and nothing has been brought out in the cross-examination to cast doubt as to the genuineness of the case.
8. This leads us to the last submission of Miss Yasmin Saigol that the parcel containing handgrenade was sent to the Chemical Analyser after the expiry of nearly one month and, therefore, no reliance can be placed on the result of the Chemical Anayser's report, it may be observed that simpliciter delay in the despatch of handgrenade is not fatal in the absence of attending circumstances indicating that the sealed parcel was tampered with. In the present case, no question was put to P.W.1 Agha Ashgar Ali, Bomb Disposal Officer, who examined the handgrenade and stated that he received the sealed parcel. In this behalf, reference may be made to the case of Sikandar and 2 others v. The State (PLD 1981 SC 477), in which the Supreme Court of Pakistan has held that simpliciter delay in despatching of the parcel containing blood-stained articles to the Chemical Examiner was not fatal. Reliance was placed by the Supreme Court on its earlier judgment in the case of Noor Alam v. The State (PLD 1978 SC 137).
9. The upshot of the above discussion is that the appeal is dismissed.