' SH. MUHAMMAD ZUBAIR, J.---This appeal is directed against the judgment, dated 21-5-1990 of the Presiding Officer, Special Court No.II, under Suppression of Terrorist Activities, Sargodha Division, Sargodha, whereby he convicted the appellant under section 4(b) of Explosive Substances Act, 1908, and sentenced him to fourteen years' R.I.
2. The prosecution case briefly stated is that on 4-8-1989, at about 2-00 or 2-30 p.m. Muhammad Siddique S.I. (P.W.1), Muhammad Masood Si. along with 8/10 police constables were present with Muzammal Hayat Inspector, C.I.A. Staff, Sargodha in village Chawaywala, when the Inspector received information that the appellant had two hand-grenades in his possession in village Raja Awan. Consequently the party reached there and apprehended the appellant and two hand- grenades P.1 and P.2 were recovered from his possession, vide memo. Exh.PA.
3. The prosecution in order to substantiate the charge against the appellant produced four witnesses. Muhammad Siddique P.W.1 appeared as P.W. 1 and deposed about the recovery of two hand-grenades at the instance of the appellant on 4-8-1989, in the area of village Raja Awan. Syed Iqbal Tahir, Civil Defence Officer, Sargodha, appeared as P.W.2. and deposed that he examined the hand-grenades on 28-9-1990, which did not have detonators but were explosive and destructive items, if detonators were fixed in them. He proved his report Exh.PB.
' Muhammad Ashraf Head Constable P.W.3 is a formal witness. He deposed that he could .identify the signatures of Muzanamal Hayat Inspector and that he recorded formal F.I.R. Exh.PC/1 on receipt of complaint Exh.PC sent by Muzammal Hayat Inspector. Muhammad Masood S.I., Anti-Burglary Staff, District Sargodha appeared as P.W.4 and deposed about the recovery of hand-grenades P.1 and P.2 from the possession of the appellant on 4-8-1989.
' Muzammal Hayat Inspector was not available and the D.D.A. gave him up and the Court examined Ghulam Muhammad, Commander, Bomb Disposal Squad, Civil Defence Office, Sargodha, as a Court witness, as he had examined the two hand-grenades and had signed the report Exh.PB.
4. The appellant when examined under section 342, Cr.P.C. denied the charge and pleaded that he had been falsely involved in this case at the instance of Muhammad Maqsood Inspector, as he had some quarrel with his Ham Zulf, who was resident of his village.
5. In support of this appeal, learned counsel has vehemently contended that no public witness, has witnessed the recovery; hence this recovery is in violation of the provisions of section 103, Cr.P.C. He also contended that there are material discrepancies between the evidence of recovery witnesses; hence the recovery should not have been believed by the trial Court. He further contended that conviction of the appellant under section 4(b) of the Explosive Substances Act, 1908 (hereinafter referred to as the Act) is not maintainable, in view of the evidence led by the prosecution and if at all any charge is proved against the appellant that falls under section 5 of the Act and not under section 4(b) of the Act. He also prayed for the reduction of sentence.
' In the end, learned counsel submitted that Muzammal Hayat complainant and the investigator has not been examined in the Court; hence all the proceedings taken by the said Inspector for the investigation of the case stood vitiated and the appellant is entitled to acquittal on this score alone.
6. Learned counsel for the State has supported the judgment under appeal.
7. We have carefully gone through the evidence and have critically examined the respective submissions of the learned counsel for the parties. We find no substance in the submission of the learned counsel for the appellant so far as it relates to the merits of the case. Both the recovery witnesses had no animus against the appellant, their evidence inspires confidence and they had no earthly reason to falsely implicate the appellant in this case. The minor discrepancies regarding the manner of recovery are of no significance. The factum of recovery has been proved by the prosecution.
The legal objection taken by the learned counsel that Muzammal Hayat Inspector who lodged the complaint and investigated the case has not been produced by the prosecution is of very insignificant nature in the circumstances of the case, as no prejudice has been caused to the appellant. If the prosecution has given him up, then the appellant could have applied to the trial Court for his examination, but he failed to move the trial Court in this behalf, which further confirms this fact that no prejudice was caused to the appellant.
8. We have carefully examined the other legal contention whether in the given circumstances, the offence falls under section 4(b) or section 5 of the Act. We find that in the present case, mere possession has been proved and there is no evidence that the appellant was in possession of the hand-grenades with intent to endanger life or property; hence the offence under section 4(b) of the Act is not proved against the appellant, and the offence fairly and squarely falls under section 5 of the Act. Hence while altering the conviction of the appellant from section 4(b) to section 5 of the Act, we reduce his sentence from fourteen years' R.I. to five years' R.I. With this modification, the appeal is disposed of.