JUDGMENT IFTIKHAR MUHAMMAD CHOUDHRY, J - Appellant Manzoor Ahmad, through this appeal has assailed the order dated 3rd April, 1995, passed by Special Court, constituted under the Suppression of Terrorist Activities Act. 1975, whereby conviction has been awarded to him under section-13-E of the Arms Ordinance, 1965, to undergo 4 years R.I. With benefit of section-382-B Cr. P.C.
2. It is the case of prosecution that on 19th June,. 1994 P.W.-Imam Baldish searched appellant when he reached at Goharan Kand, Check-post, District Pungoor and from his personal possession recovered one Kalashenikove with two Magazines and 4 Jive cartridges. The appellant could not produce licence for keeping the recovered articles in his possession, as such, the witness took hint alongwith the recovered articles to PW-1 Amanullah, who then posted as Nail) Tehsildar, paroon.
The articles were produced before him, who registered the case vide FIR (Ex. P.I-B) and took the same into possession vide recovery memo (Ex. P.I-A).Investigation against the appellant was carried out and finally challan (Ex. P.I-c) was submitted against him before the Special Courts.
3. The appellant did not plead guilty, as such, the prosecution adduced the evidence of PW-1 Amanullah, the Tehsildar, PW-2 Imam Bakhsh and PW-3 Rehmat Ali, to establish the case.
Thereafter appellant was examined under section-342 Cr.P.C, in which he denied the possession of recovered articles. He also gave statement on oath, admitting therein, that he was on board. Of a pick-up when it was stopped at Goharan kand, Check-Post, he got down to offer the prayer and when came-back, the levy personnel had already recovered the Kalashenikove. No defence witness was produced.
4. On the completion of trial, vide impugned judgment the appellant was convicted and sentenced as has been specified herein-above. As such, instant appeal has been filed.
5. Mr. Basharatullah, learned counsel for appellant, first of all, contended that under section-5 of the Suppression of Terrorist Activities Act. 1975, except the Officer-Incharge of the Police Station, no one is competent to investigate the matter. In the instant case PW-Imam Bakshsh levy Dafendar apprehended the accused and produced him before PW-1, the Tehsildar, who registered the case.
As both the officials are not the Incharge of a Police Station, therefore, on their report, Special Court, has no jurisdiction to take the cognizance of the case.
6. The contention of learned counsel was seriously controverted by Mr. Yakub Khan yousaf zair, learned Advocate General, who contended that the argument is unfounded as under the law, only the Police Officer exclusively has not been empowered to complete the investigation of case and forward the report to Special Court, but anyone else, other than the Police Officer, is also competent to register and investigate the case.
7. When it was pointed out to Mr. Basharatullah Advocate that defect in the manner of the registration of case and conducting investigation has never been considered fatal to vitiate the trial, learned counsel did not press the objection. However, it is to be noted that under section-5 of the Act. Of 1975, besides the Officer-incharge of Police Station, any other person required by law to perform any function in connection with the investigation of the case, is competent to register and investigate the case. The Special Court can take cognizance of the matter, either on the report of Officer-Incharge of a Police Station or on the report submitted by any other Officer, competent to discharge such function. Since the Naib Tehsildar himself is a third Class Magistrate, therefore, he was not precluded to register the case against the accused. It is also noteworthy that under sub- section (3) of section -5 of the Act. Of 1975, even if the report has not been forwarded, the Special Court can directly take the cognizance of the case triable by it. It would mean that Special Court, can also act on the basis of a credible information, sufficient to prima facie constitute that an offence has been committed.
8. Learned counsel for appellant also contended that there are contradictions in the statement is of PW-2 and 3 with regard to the manner of recovery of Kalashenikove from the-possession of appellant, as PW-2 stated in cross examination that Kalashenikove was recovered from the accused, concealed/wrapped into a Chaddar' and accused was sitting over it while the other half of the Chaddar, was spread over the body of accused. Whereas PW-3 in cross examination has not stated that in half of the Chaddar, Kalashenikove was concealed and half of the Chaddar was spread over the body of accused.
9. In this behalf it is to be seen that in examination in-chief both the witnesses have consistently stated in respect of the recovery of Kalashenikove from the accused, whereas in cross examination as well, there is no inconsistency, as for as the manner of concealing the Kalashenikove in a Chaddar is concerned, therefore, it is held that the statements do not suffer from any contradiction.
10. Learned counsel also contended that Gohran Kand Check-Post is situated for away from Panjgoor and it was not possible for the witness to bring and produce the accused before the Tehsildar on the following day.
11. This argument has no force, because travelling by the witness from one place to another, within the period of 12 hours was quite possible. Even otherwise on this groun. The evidence furnished by the witness cannot be discarded.
12. Learned counsel lastly contended that accused is a first offender and is the only bread winner of his family therefore, alternatively, a lenient view be taken in awarding the punishment.
13. Learned Advocate General expressed his no objection, on moderate reduction in the sentence.
14. For the foregoing reasons, we see no force in the appeals which is accordingly dismissed, however keeping in view the assertions made by Mr. Basharatullah, Advocate, we are inclined to reduce the sentence awarded to appellant from 4 year R.1, to that of 3 years R.1, with benefit of section-382-13 Cr.P.C., which has already been extended to him by the trial Court.