' MRS, KHALIDA RACHID, J.--- This appeal has been filed by Bakhtiar son of Muhammad Akbar resident of Afghanistan now Khanzada Camp, Peshawar, against the judgment and order passed by Mr. Khan Akbar Khan, Judge, Special Court, Peshawar, on 3-12-1995, whereby the appellant was convicted under section 5 of Explosive Substances Act for having been found in possession of three dynamites along with detonators and ignition wire and was sentenced to rigorous imprisonment for a period of two yeaRs, He was also given the benefit of section 382-B, Cr.P.C.
2. The facts of the prosecution case, in brief, are that on 26-10-1991 at 1725 hours Altaf Shah, A.S.I.
Along with Said Rasool, Mushtaq Ahmad and Siyar Constables had laid a picket .Near Hayatabad Check Post when the appellant arrived there by foot from Jamrud side. On search, three dynamites with three detonators and ignition wire were recovered from the pocket of waistcoat of the appellant which were taken into possession vide recovery memo. Exh.P.C. The appellant was arrested and a Murasila Exh.P.A./1 was drafted and sent to the police station where the case was registered vide F.I.R. Exh.P.A.
3. The recovered explosive substances were examined from the Bomb Disposal Expert vide his report Exh.P.D./1, statements of the witnesses were recorded and after obtaining sanction for prosecution Exh.P.E., challan was submitted against-the appellant.
4. At the trial, the prosecution examined Iltaf Shah, S.I., as P.W.2 who had effected the recovery from the accused, prepared recovery memo. Exh.P.C., arrested the appellant, drafted the Murasila Exh.P.A./1 and conducted the entire investigation and submitted challan against the accused through Khan Raziq, S.I. (P.W.1). Mushtaq Ahmad, Constable was examined as P.W.3 who is marginal witness to the recovery memo. Exh.P.C.
5. The appellant, when examined under section 342, Cr.P.C., denied the allegations against him and professed to be innocent. He stated that the dynamites and detonators were meant for fishing and not for any unlawful purpose as his house is situated on the bank of a river where the refugees usually catch fish with the help of such paraphernalia. He, however, declined either to produce any defence or to examine himself on oath.
6. We have heard Mr. Munir Khan, learned counsel for the appellant and Mr. Abdul Rauf Gandapur, learned State Counsel and have carefully examined the record of the case.
' The learned counsel for the appellant at the very outset submitted that the seized substance was never recovered from the possession of the appellant but he was falsely implicated in the case.
The attention of the learned counsel for the appellant was drawn towards the statement of the appellant recorded under section 342, Cr.P.C. Admitting the possession of the articles with the intention of fishing, near his residence situated on bank of a river at Khazana Charsadda Road. The learned counsel next, referring to section 5 of the Explosive Substances Act, submitted that it was not sufficient to prove merely that the appellant was in conscious possession but to substantiate the charge under the Explosive Substances Act the prosecution has to prove that an incriminating object recovered from the possession of the appellant, the circumstances giving rise to reasonable suspicion that he had them not for lawful object, which according to the learned counsel, the prosecution has badly failed to prove. He further submitted that at the best the prosecution can be said to have proved that the appellant was in conscious possession of the explosive material for which he could be charged under section 6 of the Explosive Act which only provides punishment with fine which may extend to Rs,3,000. We are not impressed with the arguments of the learned counsel for the appellant for the simple reason that the explosive material was recovered from the possession of the appellant, admittedly an Afghan national, early in the morning at Hayatabad Check Post A situated not far from the border of tribal area. Even the statement of the appellant recorded under section 342, Cr.P.C. Would not be of much help to him that he was having the seized material for fishing purposes. There is no relevance in his statement. It is not understood as to what was he doing at Jamrud Chowk, this early hour of the day while going from Nasir Bagh to Khazana Camp. We are convinced that the appellant had brought the explosive substance from Afghanistan, or purchased somewhere in tribal area. He avoided the ride of the bus for the fear that the buses are normally checked at the check posts. In order to have easy escape he chose to go by foot, trusting to dodge the guards at the check posts. We also see no worth in the next contention of the learned counsel for the appellant that the opinion given by Ghulam Hussain, A.I.- G., is not admissible in evidence. Major (Rtd.) Ghulam Hussain, A.I.-G., has been declared as an expert vide letter No,991/1006/Crimes, dated 7-4-1991 and thus, he has rightly solicited his opinion on the explosive material so recovered. Considering the present state of affairs in the country and especially in N.-W.F.P. Where several families have become victims of such brutal ' aggression and no stopping to it grant of leniency will encourage such people and as such it will be set back in the efforts of law enforcing agencies to maintain law and order.
' We, therefore, do not see any reason to interfere with the impugned) order of Sessions Judge/Judge Special Court, Peshawar. Appeal is dismissed C accordingly.