MUHAMMAD MUNIR KHAN, J. This Criminal Appeal arise from the judgment of Presiding Officer, Special Court, (Suppression of Terrorist Activities) Sargodha whereby he on 27-6-1990 convicted Sher Afzal appellant under section 4-B of Explosives Substance Act, 1908 and sentenced to 14 years R.I.
2. The charge against him was that he was keeping unlicensed five hand--grenades and detonators on 4-5-1990 in his house situate in Basti Nara Police Station Jauharabad. He denied the charge and claimed to be tried.
3. To prove its case, prosecution produced 5 witnesses. Habib Ullah' Inspector P.W.1 stated that on 4-5-1990 the appellant had led to his house and got recovered 5 unlicensed hand-grenades Exh.P.1/1-5 from iron box lying in his house in Basti Sherwala of village Nara, which was taken into possession vide memo Exh.PA. Attested by Sher Khan and Ahmad Nawaz (not produced). Mumtaz Hussain P.W.2 was Bomb Disposal Commander, Civil Defence Office, Khushab. He examined the grenades on-4-5-1990. Ejazul Haq, Inspector of explosives had also examined the grenades on 21- 5-1990. Mumtaz Hussain and Ejazul Haq have proved their reports. According to them, the hand- grenades and detonators was explosive substance and dangerous to life and property. Ata Ullah, ASI, had drawn up the formal F.I.R. Majeed Ullah A.S.1. P.W.5 was / is a recovery witness. He supported the recovery of grenades and detonaters from the appellant.
4. When examined under section 342, Cr.P.C., the appellant denied the recoveries of hand- grenades and detonators. He raised the plea of false implication on account of enmity. He did not produce any evidence and also did not make statement on Oath in disproof of the charges against him.
5. Believing the prosecution case and disbelieving the plea of false implication raised by the appellant, the trial Court has convicted and sentenced him as stated above.
6. Learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubts, inasmuch as Sher Khan and Ahmad Nawaz, the two attesting witnesses of recovery have not been produced; that Majid Ullah P.W. Was not present at the time of recovery; that there is no corroboration of the statement of Habib Ullah Inspector, P.W. 1 and that the allegations if accepted at its face value, no case punishable under section 4-B of the Explosive Substances Act, 1908 was made out. He frankly conceded that the allegations if accepted or proved will make out an offence punishable under section 5 of the Explosive Substances Act, 1908.
Learned counsel for the State has supported the judgment of the trial Court.
7. We have considered the submissions made by the learned counsel for the parties with care, and have reviewed the evidence produced by the prosecution, statement of the appellant under section 342, Cr.P.C. And. The circumstances appearing in the case. We do not feel persuaded to agree with the learned counsel for the appellant. We find that Sher Khan and Ahmad. Nawaz, the two publicmen, who were the attesting witnesses of the recovery memo were killed before they could give evidence before the Court. So, the prosecution cannot be blamed for their non- production and the case has to be decided on the strength of the evidence as it is. Habib Ullah Inspector and Hameed Ullah A.S.I., have no enmity to involve the appellant falsely in the A case.
They have successfully faced the test of cross-examination. The statements made by them do not suffer from material contradiction, major discrepancies or dishonest improvements. No foundation for the substitution of the appellant in place of the real offender was laid down by him. On our independent assessm ent of their statements, we do not see any infirmity warranting the rejection of their testimony. The appellant has not cared to rebut the prosecution case and the evidence produced by it. In these, circumstances, we are convinced that the grenades and detonators were recovered from the possession of the appellant.
8. This brings us to the nature of the offence committed by the appellant. The relevant provisions of law may be reproduced advantageously:- Section-4; "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: shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished with transportation for a term which may extend to twenty years, to which fine may be added, or with imprisonment for a term which may extend to seven years, to which fine may be added:"
Section-5: "Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had .It in his possession or under his control for a lawful object, be punishable with transportation for a term which may extend to fourteen years to which fine may be added, or with imprisonment for a term which may extend to five years, to which fine may be added."
Since the prosecution has confined itself only to the factum of the possession of unlicensed five grenades and detonators and has said nothing about the intended or possible use of the grenades and detonators, so, the conviction of the appellant recorded by the trial Court under section 4-B of the Explosive Substances Act, 1908, cannot sustain, instead, he is to be convicted under section 5 of the aforesaid Act. Section 5 of the Act being cognate and minor as well, the appellant can safely be convicted under section 5 of the Explosive Substances Act, 1908, although he was not charged under this section. So, the conviction of the appellant is altered from section 4-B of the Explosive Substances Act to section 5 of the said Act. As for the question of sentence, since the appellant was/is not a previous convict, we feel that the sentence of 14 years, in the circumstances of the case, is really harsh. So, it is reduced to seven years R.I. With this reduction in sentence, the appeal is dismissed.