' KH. MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,960 of 1996 filed by Shamsher Ali son of Mushtaq Shah who was convicted and sentenced by the learned Judge Special Court No,IV, Suppression of Terrorist Activities, Lahore on 14-11-1996. The appellant was sentenced as under:-- "(i) He was convicted under section 4 of the Explosive Substances Act to undergo life imprisonment and also for the confiscation of his movable and immovable property.
(ii) He was further convicted under section 13-A of the Arms Ordinance, for keeping the detonators and timers in his possession and was sentenced to death. He was further ordered to pay fine of Rs,50,000, in case of default to undergo R.I. For two years."
2. The facts in brief unfolded by D.S.P., Kot Lakhpat Circle, Lahore, Mr. Shafqaat Ahmad P.W.4 are that on 4-8-1996, the said D.S.P. Was investigating case F.I.R. No,56 of 1996, under section 302/324/427, P.P.C. Read with section 3/4/5, Explosive Substances Act of Police Station Sarwar Road, Lahore relating to bomb explosion, which took place at Airport, Lahore, taking many lives of human being and interrogating Muhammad Ishaq accused involved in the said case. The accused disclosed that he was keeping the explosive substance in the possession of Shamsher Ali, the other accused in this case which could be recovered when pointed out by said Shamsher Ali. On this information, the D.S.P. Constituted a raiding party including the S.H.Os. Of Police Station Kot Lakhpat, Factory Area, Nishtar Colony, Kahna and other police contigent and then Muhammad Ishaq accused led them to village Jamhan where Shamsher Ali used to reside. Muhammad Ishaque accused pointed the house where Shamsher Ali was also present. The D.S.P. Interrogated Shamsher Ali accused about the explosive substance being maintained by him after its receipt from Ishaq accused. The accused Shamsher Ali disclosed before the raiding party that he had concealed the explosive substance in the room i,e, husks store and then led the party to the said room and got recovered two Kgs. Of explosive substance from a hole (Khuda) (cavity in the wall), located in another larger (Khuda) in the front wall of the room. The Investigating Officer, i,e, D.S.P. Mr. Shafqaat P.W.4, secured the substance vide memo. Exh.P.C. In the presence of Khalid Javaid, Inspector, P.W.3 and Atif Hayat, Inspector (not produced). The D.S.P., Mr. Shafqaat drew complaint Exh.P.B. And sent the same for the registration of the case. As a result, F.I.R. Exh.P.B./1 was drafted by Muhammad Sulman, A.S.-I. P.W.2.
3. After the aforementioned recovery, the Investigating Officer further interrogated Muhammad Ishaq accused who informed him that two detonators and two timers were also handed over by him to Shamsher Ali accused for custody. Thereafter, Shamsher Ali accused was once again subjected to interrogation by the Investigating Officer and as a consequence, Shamsher Ali after disclosure led to the recovery of detonators and timers from the rafters of the roof of the same room where he had concealed them. The accused got recovered two timers Exh.P.2/1-2 and two detonators Exh.P.3/1-2 from the roof to the Investigating Officer Mr. Shafqaat Ahmad, D.S.P. Named above vide memo. Exh.P.D. In the presence of the same witnesses. The Investigating Officer deposited the recovered articles with the Moharrer P.W.6. The Expert opinion was sought with regards to the detonators, timers and explosive substance who gave the same as Exh.P.A. And proved it in the Court as P.W.1.
4. After the completion of investigation the Investigating Officer challaned the accused and submitted in the Court for trial. Thereafter, the appellant/accused was tried and convicted as mentioned above.
5. The prosecution in order to prove its case produced 6 witnesses in all namely Muhammad P.W.1 who was bomb disposal technician, Directorate Civil Defence, Punjab. He examined the parcels sent to him by the police. In one of the parcels he found high gelatine and in the other he found lead shear times devices and detonators and he proved his report Exh.P.A. In this regard. P.W.2 is Muhammad Sulman, A.S.-I., who recorded the formal F.I.R. Exh.P.B. P.W.3 is Khalid Javaid, Inspector, who was posted as S.H.O., Police Station Kot Lakhpat during the days of occurrence. He was one of the members of the raiding party and accompanied by D.S.P., Shafqaat Ahmed on 4-8-1996, in whose presence the gelatine and lead shear times devices were recovered. P.W.4 Shafqaat Ahmad, D.S.P. Is the complainant in this case and also the Investigating Officer. P.W.5 is Muhammad Aslam, A.S.-I., according to him he was handed over the two sealed parcels by Muhammad Jameel, Moharrer, P.W.6 and handed over the same to the Bomb Disposal Officer at Bomb Disposal Office intact. P.W.6 is Muhammad Jameel, Moharrer, who deposed that he received two parcels on 8-8-1996 and handed over the same to Muhammad Aslam, A.S.-I. For their transmission to the Office of Bomb Disposal intact. Thereafter, the statement of the appellant under section 342, Cr.P.C. Was recorded. He rebutted the prosecution evidence and claimed innocence.
He himself appeared in his defence as required under section 340(2), Cr.P.C. He also produced Shabbir Ahmad, Advocate, who stated that the appellant was a gentleman and was taken into police custody on 28-7-1996. He further, stated that the appellant belongs to a very pious family.
6. Learned counsel for the appellant has read before us the prosecution evidence, statement of the appellant and also the statement of D.Ws. He submits that in the F.I.R. There is no mention of lead Shear Devices and detonators. He also submits that Shafqaat Ahmad, D.S.P., who himself is a complainant and also the Investigating Officer. He submits that other recovery witnesses Khalid Javaid is also Police Officer, that no public witness has been produced in this case. Adds that explosive and other articles were recovered on 4-8-1996 and the same were handed over to the Moharrer on 8-8-1996 and there is no evidence that for four days where these articles remained.
He submits that these articles were handed over to Muhammad Aslam, A.S.-I. By Muhammad Jameel, Moharrer on 8-8-1996 but received by the Bomb Disposal Office on 11-8-1996 and there is no explanation that where these articles were for 3/4 days. He also submits that report of Bomb Disposal Office cannot be relied upon. He also submits that learned trial Court had written down the admission of the appellant at the time of framing of charge in the absence of his counsel and just after the admission the defence counsel reached in the Court and submitted an application to the effect that this admission about framing the charge was obtained under duress in the presence of police officials including D.S.P.. Shafqaat Ahmad. He submits that no case whatsoever is made out against the appellant.
7. On the other hand learned State Counsel supports the judgment of the learned trial Court and submits that no leniency can be shown to the present appellant.
8. We have heard the learned counsel for the parties and also have gone through the evidence recorded by the learned trial Court. In the instant case two Kgs. High explosive substance gelatine type was recovered. The same cannot be planted. There was no enmity between the police officials and the appellant. It has come on record through defence evidence that the appellant belonged to a family of "Peer" how any person from the said locality could dare to make a statement against the appellant. As far as handing over all the explosive substance material on 4-8-1996 to Moharrer, is concerned, it may be mentioned here that in the statement of Muhammad Aslam, A.S.-I. P.W.5 and Muhammad Jameel, H.C. P.W.6 recorded under section 161, Cr.P.C., they had stated that the parcels were handed over to Muhammad Jameel on 8-8-1996. Muhammad Aslam took the same to the Bomb Disposal Office but the same was sent back by the Commander of the said Office with the direction that a letter should be brought addressing him from the S.S.P., Lahore, thereafter, there were holidays on 9th and 10th August and on 11th he took the parcel after taking the same' from Muhammad Jameel, P.W. But unfortunately the Special Public Prosecutor who was appointed in this case by the Provincial Government due to his negligence and inefficiency could not examine these two P.Ws. Properly and adequately. According to their statements under section 161, Cr.P.C. In such- like cases these technicalities cannot be considered and we brush aside the same. It has been held by the Honourable Supreme Court in a recent judgment that the approach of the Court should be dynamic one, while going through the investigating papers we have also come across that Shafqaat Ahmad, D.S.P. Had stated therein that he had handed over the said parcels on 4-8-1996 to Moharrer, Police Station Nishtar Colony but neither he deposed anything about nor the Public Prosecutor examined Shafqaat Ahmad on this point. No benefit of these omissions can be granted to the defence but we must say that in the instant case the timers and detonators allegedly recovered at the pointation of the appellant were not mentioned in the F.I.R., although a recovery memo. In this regard was prepared by the Investigating Officer which is Exh. P. D. On the record.
There were two detonators and two timers. In this view of the matter, we extend the benefit of doubt to the appellant on this score i,e, about the recovery of detonators and timers because the same were not mentioned in the F.I.R. So the conviction and sentence of the appellant under section 13-A, Arms Ordinance, 1965 is set aside. But we are of the considered opinion that the prosecution has proved its case against the appellant for keeping 2 Kgs. Of explosive substance for which he could not produce any licence or any legal document for keeping the same so conviction and sentence awarded to him by the trial Court under section 4 of the Explosive Substances Act is maintained in toto. We have already set aside the conviction and sentence of the appellant under section 13-A of the Arms Ordinance, 1965, so the death sentence awarded to him is not confirmed.
' With the abovesaid modification this appeal is disposed of. Death sentence awarded to the appellant is not confirmed.