1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- This appeal is directed against the order, dated 26th May, 1997 passed by Sessions Judge/Special Judge, Suppression of Terrorist Activities under section 13-E of Arms Ordinance, 1965 whereby convict/appellant has been sentenced to 2 years' R.I. And fine of Rs,2,000 and in default in the payment of fine to further undergo 2 months' S.I.
2. ' It is the prosecution case that C.I.A. Staff headed by P.W. Farid Ahmed on receipt of spy information intercepted a vehicle (pick-up) No,LS-3743 being driven by the appellant. On its checking huge quantity of narcotics was recovered from the cavities and a .30 bore pistol was also recovered from the possession of appellant, as such vide F.I.R. No,73 of 1996, dated 27th April, 1996 a case under section 13-E of Arms Ordinance was registered against him. Concerning recovery of the narcotics a separate case was registered under Article 3/4 of the Prohibition (Enforcement of Hudood) Order, 1979.
3. ' On completion of investigation challan of the former case was forwarded to the Court of Sessions Judge/Special Judge, Terrorist Activities; whereas challan of the case of narcotics was sent for trial to the competent Court where it is still pending for disposal. In the instant case charge was framed on 24th October, 1996 to which, appellant did not plead guilty and claimed trial.
4. ' The prosecution adduced the evidence of:
(i) P.W.1 Muhammad Akbar. He is the witness of inventory produced by him as Exh.P./1-A and the sketch of the recovered pistol Exh.P./1-B;
(ii) P.W.2 Farid Muhammad, S.-I. C.I.A. He prepared the inventory and also sent Murasla Exh.P./2-A for registration of the case;
(iii) P.W.3 Amanullah. On completion of investigation he submitted the challan.
5. ' Appellant was examined under section 342, Cr.P.C. In which he denied the prosecution case. He did not opt to make statement on oath despite of opportunity provided to him. On conclusion of trial learned Sessions Judge/ Special Judge sentenced the appellant details whereof have been given hereinabove.
6. ' Mr. Naeem Akhtar, learned counsel for appellant contended that under section 156, Cr.P.C. C.I.A.
7. Staff has not been empowered to register a case against the accused under section 13-E of the Arms Ordinance, therefore, his trial on the basis of investigation conducted by an unauthorized agency is liable to be vitiated. He relied upon PLD 1995 Lah. 606, PLD 1997 SC 408.
8. ' Mr. Noor Muhammad Achakzai learned Additional Advocate-General on having gone through the judgments relied upon by the learned counsel conceded to the legal proposition but his opinion was that on the basis of defective investigation the trial will not be vitiated. To deal with the proposition putforth by the learned counsel it would be appropriate to reproduce hereinbelow section 156, Cr.P.C.:-- "Investigation into cognizable cases.-- (1) Any Office-in-charge of a police station may without the order of a Magistrate, investigate any cognizable case which Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.
(2) No proceeding of a Police Officer in any such case shall at any stage be called in question on the ground that case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as abovementioned.
(4) Notwithstanding anything contained in subsections (1), (2) or (3), no Police Officer shall investigate an offence under section 497 or section 498 of the Pakistan Penal Code, except upon a complaint made by the husband of the woman, or in his absence by some person who had the care of such woman on his behalf at the time when such Offence was committed."
9. ' Honourable Lahore High Court while a similar proposition opined as follows:-- "Therefore, the members of the C.I.A. Staff, irrespective of their rank and status, can investigate cases only when they have been entrusted to them by an Officer-in-charge of the police station to whom they are subordinate i,e, in case of C.I.A. Staff, the S.P. Of the District. Therefore, no member of the C.I.A. Staff has any authority or power to investigate a case of their own motion in the absence of such an investigation having been entrusted to him by the S.P. Of the District as abovementioned. We have noticed a growing tendency in the members of C.I.A. Staff and the Officers-in-charge of the C.I.A. Staffs to commence investigation of the cases of their own. This is illegal and this practice must be stopped."
10. ' In another judgment recently pronounced by Honourable Supreme Court in the case of State through Advocate-General Sindh v. Bashir and others PLD 1997 SC 408 same question was taken up for consideration with reference to section 156, Cr.P.C. Wherein it was held that C.I.A. Personnels have no power to investigate a cognizable offence under subsection (1) of section 156, Cr.P.C. Under this provision the power to investigate a cognizable offence has been conferred upon an Officer Incharge of the police station having jurisdiction over the local area within the limits of such police station.
11. ' The Honourable Supreme Court also took note of the fact that C.I.A. Staff has been investigating the cases and submitting challans for the last several decades, but such illegal practice cannot negate an express provision of a statute. On this undertaking was given by the concerned authorities not to violate the provisions of section 156(1), Cr.P.C.
12. ' It was further observed that in such breach of statutory provision by the functionaries will result in initiation of legal proceedings against the C.I.A. Personnels to be found guilty of such violation.
13. However, it was further held in this very judgment that violation of section 156(1), Cr.P.C. By committing illegality/irregularity by C.I.A. Personnel may not vitiate trial if not serious prejudice has been caused to accused person resulting in miscarriage of justice in view of section 156(2), Cr.P.C.
14. But that does not mean that C.I.A. Personnel should knowingly violate the provisions of law.
15. We have tested the case in hand at the touchstone of principle enunciated by the Honourable Supreme Court and following the same we are also of the opinion that under section 156(1), Cr.P.C., C.I.A. Personnel are not empowered to register or investigate into cognizable offences. However, after registration of the case by the S.H.O./In charge of a police station it can be transferred to them by the Superintendent of Police for further investigation and on completion whereof they would return papers of investigation to the authority from whom they were received for the purposes of preparation of challah and forwarding to the Court.
16. ' However, as in the case in hand apparently no prejudice has been caused to the appellant by conducting investigation by the C.I.A., therefore, invoking curative provisions of subsection (2) of section 156, Cr.P.C. It is held that trial of appellant will not vitiate.
17. ' Mr. Naeem Akhtar learned counsel then argued that allegedly a .30 bore pistol was recovered from the possession of appellant and on completion of investigation challan was forwarded to the Court of Special Judge, Suppression of Terrorist Activities, without furnishing evidence/expert report whether the pistol recovered from the possession of appellant was automatic or semi-automatic.
18. ' Learned Advocate-General controverted to his arguments as according to him the appellant was found in possession of a weapon which was semi-automatic because challan was sent before the Special Judge, as such there was no necessity to produce the expert evidence to substantiate the calibre of the weapon and also to establish whether it is automatic or semi automatic. He also contended that no such objection was raised by the accused before the trial Court.
19. ' Moreover, he has not been sentenced adequately in accordance with law because in respect of the offences which involve recovery of non-prohibited bore weapons, punishment is 3 years.
20. Experience tells us that the police officials at the time of recovery of crime weapons do not care to preserve them by preparing a parcel at the spot as it had happened in the instant case. Neither the recovered weapon, cartridges etc. Are sent for the report of Fire-arm Expert in order to know the calibre and the status of the weapon. Under section 4 of the Suppression of Terrorist Activities Special Court Act, 1975 the Special Judge is competent to try the offences specified in the Schedule annexed with the Act in pursuance of provisions of section 2(b) of the Act. A careful perusal whereof indicates that the Special Judge besides trying the other offences enlisted therein is also empowered to take cognizance of the offences committed under sections 8, 9 and 10 of the West Pakistan Arms Ordinance, 1965. In respect of cannon, grenade, bomb, rocket or light arm, heavy automatic or semi-automatic weapons etc. To invoke the jurisdiction of the Special Court is obligatory upon the Investigating D Agency to establish whether crime weapon is automatic or semi-automatic or what is its caliber. In the absence of such report it becomes very difficult to determine the jurisdiction of the Court.
21. ' It is hoped that in future prosecution will be vigilant in preserving the crime weapon immediately after its recovery, into parcel, according to rules to ensure fair trial and they would also obtain report from the Fire-arm Expert which of course would be helpful for determining the jurisdiction of the Court.
22. Since in the instant case no specific objection was raised on the jurisdiction of the trial Court by the appellant because even if it is presumed that the pistol recovered from the appellant was neither automatic nor semi-automatic still he was liable for the trial before the Court which would have either acquitted him or convicted, therefore, for such reason we are of the opinion that no prejudice has been caused to the appellant.
23. ' Learned counsel for appellant with great vehemence argued that recovery of the pistol from appellant has been foisted upon him because he complained to the Additional Superintendent of Police Khair Muhammad Jamali on the day of incident that C.I.A. Staff had falsely involved him in the commission of offence falling under the mischief of offence under section 13-E of the Arms Ordinance.
24. ' We see no force in the contention of the learned counsel; for the reason that he has not disputed it bar the presence of the appellant at the time when he was apprehended while driving the pick-up.
25. As far as false involvement in this case is concerned that can also not be considered because he could have produced to the said Additional Superintendent in his defence. Inasmuch as these facts have not been asserted by him before trial Court as he did not opt to make statement on oath as contemplated under section 340(2), Cr.P.C.
26. ' Learned counsel also contended that prosecution failed to produce independent civilian witnesses, therefore, the evidence furnished by the Police Officials is not worthy of credence.
27. ' We enquired from the counsel whether during cross-examination of the prosecution witnesses, he alleged any enmity, animosity or mala fide intentions against the police? His answer. Was in negative. But he contended that since the C.I.A. Staff had spy information about commission of the crime, therefore, they should have taken alongwith them civilian persons for the purposes of recovery. We are convinced that this contention is of no avail to him because had the police managed to bring two civilian witnesses alongwith them there would have been an objection that they are the persons who were interested in the police case as they had come alongwith them.
28. Even otherwise the vehicle was apprehended on the road, therefore, it was not possible for the police to engage independent civilian persons.
29. ' It may also be noted that in the absence of any enmity or mala fide intentions by the Police Officers, to involve accused in a criminal case, their evidence cannot be brushed aside. The official witnesses irrespective of the fact whether they belong to the police force or any other agency are as respectable as civilian witnesses, therefore, whatever evidence is given by them subject to scrutiny under the recognized principles of law is bound to receive same credence which is ordinarily given to the civilian witnesses. Thus, the contention is repelled.
30. ' Mr. Naeem Akhtar, Advocate further argued that the evidence furnished by prosecution suffers from material contradictions because they are not sure whether the accused was holding pistol in his hand or it was taken out from his body during search.
31. ' We have scrutinized the statement of both the witnesses, i,e, Muhammad Akbar and Farid Muhammad carefully. As far as their substantial part of evidence is concerned that leads to suggest us that the vehicle which was being driven by the appellant was stopped. He pointed out the pistol towards the police. However, he was over powered and pistol was recovered. Nominal contradictions as pointed out by the learned counsel would not be of any avail unless they have shaken the intrinsic value of the evidence, therefore, it is held that for the contradictions which are not of much importance and had not shaken the intrinsic value of the evidence no benefit can be given to the accused. On the points with regard to contradictions etc. In the prosecution evidence and its evidentiary value we would like to rely upon the judgment of Honourable Supreme Court reported in PLD 1995 SC 46.
32. ' Before parting with the judgment we would like to observe that while admitting the petition we issued notice to appellant to explain as to why the sentence of 2 years may not be enhanced.
33. Notice has been contested but we are not inclined to dilate upon this aspect of the case in view of the given circumstances and the observations made hereinabove.
34. In view of what has been stated hereinabove, we see no force in thej appeal which is accordingly dismissed. Thus, conviction and sentence passed by K Special Judge, Suppression of Terrorist Activities is up held.
35. ' Copy of this judgment be sent to the Secretary Home Government of Baluchistan and I.-G. Police for necessary action with regard to observations made hereinabove.