' MIAN SHAKIRULLAH JAN, J.--- This appeal is directed against the judgment and order of Judge, Special Court, Bannu, dated 6-6-2001 whereby the appellant, being found guilty for having in possession of huge quantity of arms, ammunition and a explosives, was convicted under section 5 of the Explosive Substances Act (hereafter may be called as Act of 1908) and sentenced him to fourteen years' R.I.
2.
2. Briefly, the prosecution case is that one Baigham Shah, Inspector C.I.D., Peshawar, on prior information about the transportation of arms, ammunition and explosives to Karachi (Sindh Province) for sabotage laid a pickot on Bannu, D.I. Khan road near Darul Uloom Almarkaz-i-Islami, Bannu. At about 1-30 a.m. An Oil Tanker bearing No,3765-LHP coming from Bannu side was stopped and on its search (1) three rocket launchers with tent, rockets, 20 fuses, (2) one hand-grenade launcher with stand and 780 grenades, (3) one PRG-7 with ten shells and 10 fuses, (4) 4 L.M.G. Rifles with 8 magazines and 480 rounds, (5) 2 automatic 8-MM rifles with 4500 rounds and 15 klips, (6) 60 magazines of kalashnikov, (7) 120 rounds of 7.62 bore were recovered from its trunk. The oil tanker was being driven by the appellant and a case under section 5 of the Act, 14 of the Arms Ordinance and 120-B, P.P.C. Was registered vide F.I.R. No,7, dated 11-7-1995 at Police Station C.I.D., Peshawar. The appellant was arrested.
3. After completion of investigation and obtaining sanction/consent of the concerned authority under section 7 of the Explosive Substances Act, Challan was submitted before the Judge, Special Court, Peshawar. After initiation of proceedings in the case, it was brought to the notice of the Judge, Special Court, Peshawar that the case fell within the territorial jurisdiction of Sessions Division Bannu and it is the Special Court at Bannu which is having jurisdiction, consequent upon which the case was returned to the prosecution. On receipt of challan back from the Court, it was resubmitted before the Judge, Special Court, Bannu. The appellant was charged under section 5 of Act, 1908 read with section 121-A, P.P.C. To which he pleaded not guilty.
4. The prosecution has examined eight witnesses, out of whom Baigham Shah (P.W.7)being the Investigating Officer and Tariq Suhail (P.W.5) being a recovery memo. Witness are important witnesses while the rest are formal, as either they have registered the case or submitted challan or initiating proceedings under sections 204/87/88, Cr. P . C .
5. P.W.7 has almost narrated the same facts as incorporated in the F.I.R. While P.W.3 has testified the recovery from the oil tanker driven by the appellant.
6. After close of the prosecution case, the appellant was examined under section 342, Cr.P.C.
Denied the allegations of the prosecution and has alleged that he has been malafidely involved in the case at the behest of a high Police Officer as he suspected him (the appellant) for giving spy information to the Custom Authorities against him with regard to the transportation of illicit arms/ammunition. Neither he produced any defence nor he opted to appear as his own witness in disproof of the allegations of prosecution under section 342(3), Cr.P.C:
7. The learned counsel for the appellant at the very outset raised two legal objections, (i) that the case falls within the territorial jurisdiction of Sessions Division Bannu but the consent/sanction, as required under section 7 of the Act, has not been obtained from District Magistrate, Bannu which vitiates the whole trial and, (ii) that once the cognizance has been taken by the Judge, Special Court Peshawar, then he was not competent to transfer the case to the Judge, Special Court at Bannu as under section 4(A) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, as amended by Ordinance XXIII of 1997 (hereinafter may be referred as Act of 1975), it is only the High Court which is competent to transfer the case from one Special Court to another and not the Special Court itself to transfer it. Reliance was placed on the case reported as Nazim Hussain v. The State and others 1999 PCr.LJ 42.
8. The learned Deputy Advocate-General while opposing the aforesaid two objections has contended that the consent of the Provincial Government/District Magistrate as required under the law has been obtained in the instant case from the District Magistrate, Peshawar and once the same has been obtained, then there was no need to obtain the sanction for the second time after holding the case triable by the Judge, Special Court at Bannu. In this respect, he has produced a Notification bearing No,261-HSO(Judl.)86, dated 21st June, 1986, whereby the Provincial Government has authorized under the Act of 1908, all the District Magistrates to grant sanction/consent on its behalf. He submitted that it will make no difference whether the sanction has been obtained from the District Magistrate, Peshawar or to be obtained from District Magistrate, Bannu, but they being the delegatees are equally competent to exercise powers of the Provincial Government as the real authority is the Provincial Government.
9. There is no denying the fact that the consent had been obtained in the case for/ trial of the appellant but the only objection of the learned counsel for the appellant that the District Magistrate, Peshawar was not competent to give consent for the prosecution of the appellant as the offence does not fall within his territorial jurisdiction and this he equated with no consent at all in the case. In this respect, he relied on Sohail Ahmad v. The State 1995 PCr.LJ 177, Syed Mukhtar Hussain v. The State 1984 PCr.LJ 2181, Rashid Ahmad v. The State PLD 1972 SC 271 and Abdul Karim v.
The State and others PLD 1963 (W.P.) Kar.
669.
10. According to section 7 of the Act (ibid), it is the Provincial Government competent to grant sanction for prosecution of an accused. The judgments referred to above are distinguishable, as either the sanction has not been obtained at all and if obtained that is after the conclusion of the trial or the consent has been given by an authority incompetent and not authorized in that behalf.
But in the instant case the consent has been given for prosecution of the accused. According to section 7 of the Act (ibid), it is the Provincial Government to grant consent for prosecution oil the accused. Later on certain additions have been made to section 7 whereby Provincial Government has been empowered to delegate its powers to grant consent for prosecution of the accused to the District Magistrate. The District Magistrate is a delegatee of the Provincial Government to exercise its (Provincial Government) powers to grant sanction for prosecution of the accused. The learned Deputy Advocate-General has contended in this respect that mere irregularity in the grant of sanction would not invalidate the prosecution of the accused and has placed reliance on Muhammad Sultan v. The State 1984 PCr.LJ 45 whereby sanction obtained under the. Suppression of Terrorist Ordinance, 1974 and when the trial was held by a Court under the Suppression of Terrorist Activities Act, 1975; after the repeal of Ordinance, 1974, it was held that it would not invalidate the prosecution of the accused and the consent does not pertain to the Court but it relates to the accused and for the prosecution of whom the sanction had been granted. He has also referred to a judgment reported in Prosecutor Karachi v. Major Malik Muhammad Hanif and 4 others 1975 PCr.LJ 834 whereby the sanction valid at the time of commencement of the prosecution will not be invalid on account of subsequent changed status of the accused necessitating sanction of a different authority. In the instant case, the sanction given by the District Magistrate, Peshawar whereby the prosecution had first put challan in the Court of Special Judge, Peshawar and its subsequent resubmission before the Special Court at Bannu would not be affected and that sanction will be sufficient and proper for the prosecution of the accused as the same had been granted by a delegatee of an authority (Provincial Government) competent to grant such a sanction/ consent, hence this objection of the learned counsel for the appellant is overruled.
11. His other objection with regard to the transfer of the case by the Judge, Special Court, Peshawar to the Judge, Special Court, Bannu is also untenable as the case had not been transferred by the Special Court, Peshawar but rather had been returned to the prosecution for the lack of territorial jurisdiction and it was the prosecution who again submitted challan before the Judge, Special Court, Bannu. Though it has been mentioned in para. 15 of the impugned judgment that by the order of the learned Sessions Judge, the case was transferred to this Court but in para.3, it has also been specifically mentioned that since the case had been returned by the learned Special Judge, Peshawar, therefore, the trial should be conducted in this Court. In fact the case has not been transferred but has been returned and the aforesaid observation in para. 15 would not be taken as transfer of the case as contended by the learned counsel for the appellant would mean return of the case to the prosecution and again its submission in the Special Court at Bannu. Like the earlier objection, this objection of the learned counsel for the appellant is also not maintainable.
12. Learned counsel for the appellant has also dilated upon merits of the case by contending (i) that the report which has been given is not of an Armourer but of Head Constable and who had also not been produced by the prosecution, (ii) that the recovery memo. Exh.P.C. Vide which the incriminating articles have been taken into possession has not been signed by Tariq Suhail (P.W.3) who is the recovery memo. Witness, (iii) that the Investigating Officer in his statement has stated that he was unable to point out the places where recovery had been affected and that the site plan is also in conflict with the F.I.R., as according to the F.I.R. The vehicle was coming from Bannu side while the site plan indicates that it was coming from opposite direction and from this he was deriving a conclusion that the recovery as alleged had not been affected at all, and (iv) despite the fact that the recovery was effected near Police Station Ghoriwala but no entry to that affect has been made in the daily diary of the said police station.
13. Learned counsel for the appellant further submitted that the case property i,e, arms, ammunition and explosives had not been produced in the Court but his this submission is also negated by the case file and the statement of P.W.7. According to order-sheet of the trial Court, dated 11-5-2000 whereby a reference with regard to the production of the case property has been made and it has been recorded that "after about ten minutes of the passing of the above order, P.W. Baigham Shah appeared. The case property had also been brought from Peshawar.
Statement of Baigham Shah as P.W. Recorded". In the statement of Baigham Shah, references have been made to the various incriminating articles of the case property by marking with P.1, P.2 indicating thereby that the articles were produced before the Court during examination of P.W.7 Baigham Shah.
14. With regard to the first objection of the learned counsel for the appellant noted in para.12 regarding the examination of the Armourer, the learned Deputy Advocate-General, has referred to a note of the Judge, Special Court, dated 14-9-2000 whereby to a request made by the A.P.P. For the summoning of the Armourer, the defence counsel has stated "the application on which the report of the Armourer is written has been exhibited and he admits the same to be correct. Thus, the prosecution closed its evidence". This contention of the learned counsel for the _appellant in view of the aforesaid note whereby the learned counsel for the accused at that time has admitted the report of the Armourer as correct, falls to the ground.
15. It has been stated by Tariq Suhail P.W. In the cross-examination that he has not signed the recovery memo. But in his examination-in-chief he has categorically stated of signing the recovery memo. And even otherwise he has stated that the recovery was effected in his presence. When the recovery memo. Was perused, we find the signature of Tariq Suhail P.W. Which was stated by the learned counsel of the appellant to have been signed later on. In view of his categorical statement in the Court with regard to the recoveries in his presence, mere signing of the recovery memo.
Would be of no consequence in the circumstances of the case.
16. The inability and non-pointation of the place by the Investigating Officer where the vehicle was stopped and the recovery was effected at the time of occurrence would be due to the lapse of time of about five-years after the occurrence when his statement was recorded and this he explained in his statement. The making or non-making of an entry about the occurrence in Police Station Ghoriwala is also not necessary in view of the notification issued by the Governor for declaring the C.I.D. Headquarter at Peshawar as a Police Station C.I.D. For the whole Province which notification was produced by the learned Deputy Advocate-General.
17. The prosecution has been able to prove the recovery of the aforesaid articles consisting of various arms, ammunitions and explosives from the possession of the appellant and the burden then shifts to the appellant under section 5 of the Explosive Substances Act that he was not the same for unlawful purpose and which he totally failed to discharge this burden.
18. What has been discussed, the prosecution has been able to bring home guilt to the accused beyond any shadow of doubt and he was rightly held guilty by the trial Court and was rightly convicted and sentenced.
' Resultantly this appeal fails and is dismissed.