1. IFTIKHAR MUHAMMAD CHAUDHRY, 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 Bakhsh searched appellant when he reached at Goaran Kand Check Post, District Panjgoor and from his personal possession recovered one klashnikov with two magazines and 4 live cartridges. The appellant could not produce licence for keeping the recovered articles in his possession, as such, the witness took him alongwith the recovered articles to P.W.1 Amanullah, who was then posted as Naib-Tehsildar, Paroon. The articles were produced before him, who registered the case vide F.I.R. (Exh.P.1/B) and took the same into possession vide recovery memo. (Exh.P.1/A). Investigation against the appellant was carried out and finally challan (Exh.P.1/C) was submitted against him before the Special Court.
3. The appellant did not plead guilty, as such, the prosecution adduced the evidence of P.W.1 Amanullah, the Tehsildar, P.W.2, Imam Bakhsh and P.W.3 Rehmat Ali, to establish the case.
4. 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 Gohran Kand, Check-Post, he got down to offer the prayer and when came back, the levy personnel had already recovered the klashnikov. No defence witness was produced.
5. On the completion of trial, vide impugned judgment the appellant was convicted and sentenced as has been specified hereinabove. As such, instant appeal has been filed.
6. 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 P.W. Imam Bakhsh levy Defedar apprehended the accused and produced him before P.W.1, the Tehsildar, who registered the case.
7. As both the officials are not the Incharge of a Police Station, therefore, on their report, Special Court had no jurisdiction to take the cognizance of the case.
8. The contention of learned counsel was seriously controverted by Mr. Yakub Khan Yousafzai, 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.
9. 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 a 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 E 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 subsection (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.
10. Learned counsel for appellant also contended that there are contradictions in the statements of P.Ws.2 and 3 with regard to the manner of recovery of klashnikov from the possession of appellant, as P.W.2 stated in cross-examination that klashnikov 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 P.W.3 in cross-examination has not stated that in half of the Chaddar, Klashnikov was concealed and half of the Chaddar was spread over the body of accused.
11. 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 klashnikov from the accused, whereas in cross-examination as well, there is no inconsistency, as far as the manner of concealing the klashnikov in a Chaddar is concerned, therefore, it is held that the statements do not suffer from any contradiction.
12. Learned counsel also contended that Gohran Kand Check Post is situated far away from Panjgoor and it was not possible for the witness to bring and produce the accused before the Tehsildar on the following day.
13. 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 ground, the evidence furnished by the witnesses cannot be discarded.
14. 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.
15. Learned Advocate-General expressed his no objection, on moderate reduction in the sentence.
16. For the foregoing reasons, we see no force in the appeal which is accordingly dismissed, however, keeping in view the assertions made by Mr. Basharatullah, Advocate, we are inclined to reduce the sentence awarded E to appellant from 4 years' R.I. To that of 3 years' R.I. With benefit of section 382- B, Cr.P.C. Which has already been extended to him by the trial Court.