2012 P Cr. L J 796
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ
BILAL AHMED ---Appellant
versus
THE STATE ---Respondent
Criminal Jail Appeal No.12 of 2010, decided on 27th October, 2011.
Explosive Substances Act (VI of 1908) ---
----Ss. 4(b) & 7 ---Anti-Terrorism Act (XXVII of 1997), Ss.19(8 -b) & 27 -A---Crimina l
Procedure Code (V of 1898), S.510 ---Possessing explosive substance ---Appreciation of
evidence ---Counsel for the accused had contended that as proper sanction was not obtained
from the Provincial Government for prosecution of the case as required under S. 19(8-b) of
Anti-Terrorism Act, 1997, the proceedings conducted by the Trial Court were in violation of
relevant provision of law; that the F.I.R. had been registered by CIA, who had no authority to
make investigation in the matter and their only duty was t o assist the Police; that
Investigating Officer was bound to investigate the matter independent of the material
collected by CIA, which had adversely affected the case of the prosecution; that no report of
expert was present on record, nor even the materia l alleged to be recovered was examined by
the expert, only an unauthorized report had been produced during course of evidence, which
was not admissible in evidence under the law and that as false case had been made out
against accused, which the prosecutio n had failed to establish, accused was liable to be
acquitted ---Validity ---Prosecutor -General though had conceded that no such sanction was
obtained, but as accused was tried by a Special Court constituted under Anti -Terrorism Act,
1997, procedure as provi ded in the special statute should be adopted and S.19(8 -b) of Anti -
Terrorism Act, 1997, which had provided the procedure had been complied with ---
Proceedings were rightly held by the Trial Court against accused, in circumstances ---Trial
Court having discus sed the objections and had arrived at the conclusion that it was a mere
irregularity and not an illegality, which could not vitiate the case of the prosecution, which
otherwise, was based on convincing and direct evidence ---Personnel of CIA, in the case, h ad
not made the investigation, but their act was confined only to the extent of apprehending of
the suspected person effecting of recovery, preparation of seizure memo and parcels ---
Investigating Officer was separately appointed, who did the job and submit ted Police
report/challan before the court ---Act of CIA, in circumstances, did not vitiate the
proceedings, as it was nowhere established that prejudice had been caused to the accused ---In
view of S.510, Cr.P.C., production of Chemical Examiner, Assistant Chemical Examiner,
Serologist, Finger Print Expert or Firearm Expert, subject to appointed by the Government
were not required ---Recovered material, in the case was not sent to the Ballistic Expert for
obtaining his opinion ---Sending of recovered material for an Expert opinion was not
mandatory in all cases ---Opinion of the expert, though was an important piece of evidence,
but where the prosecution established its case with direct and confidence inspiring
evidence, the report of an expert was of less value ---Section 27 -A of Anti -Terrorism Act,
1997 had provided a presumption against a person being found in possession of any
explosive substance ---Prosecution had discharged the burden while establishing recovery of
explosive substance from possession of accused ---Burden thus shifted on the accused to
establish the contrary, which accused failed ---Accused, having failed to make out a case in
his favour, his appeal was dismissed being without merits.
PLD 1997 SC 408; Muhammad Hanif v. The State PLD 1993 SC 895; Sardar Khan v. The
State 1998 SCMR 1823; Sarfraz alias Sappi v. The State 2000 SCMR 1758; Noor
Muhammad v. The State 2005 SCMR 1958 rel.
Abdul Karim Yousafzai for Appellant.
Abdullah Baloch, Special Prosecutor ATA for the Sta te.
Date of hearing: 6th April, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---It is a jail appeal, preferred by convict Bilal Ahmed
son of Sarfraz Khan, being aggrieved of judgment dated 12 -4-2010 of Special Judge, Anti -
Terrorism Court -II, Quetta, wh ereby he has been convicted for the offence under section 4(b)
of the Explosive Substances Act, 1908, thereby awarded sentence to suffer rigorous
imprisonment for a period of seven years with benefit of section 382 -B, Cr.P.C. The only
contention of the app ellant is that the case as made out against him is absolutely false.
As it is a jail appeal, therefore, Mr. Abdul Karim Yousafzai, Advocate was appointed as
counsel for the convict on State expenses through order dated 25 -5-2010. Learned counsel for
the appellant contended that as proper sanction was not obtained from the Provincial
Government for prosecution of the case as required under section 19(8 -b) of Anti -Terrorism
Act, 1997, therefore, the proceedings conducted by the trial Court was in violation of relevant
provisions of law. It was further his contention that the F.I.R. has been registered by CIA,
who has no authority to make investigation in the matter; rather their only duty is to assist the
police. It was his contention that the Investigating Officer was bound to investigate the matter
independent of the material collected by CIA, but this has not been done in present case,
which adversely affected the case of the prosecution. The learned counsel further argued that
no report of Expert is prese nt on record, nor even the material alleged to be recovered was got
examined by the Expert. Rather only an unauthorized report has been produced during course
of evidence, which was not admissible in evidence under the law. But the trial court placed
reliance on it, therefore, the findings arrived by the trial court are in contravention with the
relevant provisions of law. The learned counsel lastly contended that as a false case has been
made out against the appellant, which the prosecution has failed to e stablish, in result thereof,
the appellant is liable to be acquitted of the charge. In reply the Special Prosecutor, ATA,
argued the matter, thereby fully supported the findings arrived by the trial Court, with
assertion that the recovery of the hand -grena des, and the appellant being in possession thereof
are the admitted facts, on the basis of the material present on record. It was further his
argument that the prosecution witnesses corroborated the statements of one another, and no
material contradiction appeared in their statements, therefore, the trial court rightly relied on
the same. He requested for dismissal of the appeal.
It is case of the prosecution that the appellant was apprehended by CIA personnel,
who were on patrolling duty on 24 -1-2010 at 5 -00 p.m. near Killi Kharoti on some
information. And on search from side pocket of the appellant two hand -grenades with
detonators were recovered, whereupon Commander of Bomb Disposal Squad namely
Shamsullah was called, who after reachin g at the site defused the hand -grenades, and issued a
certificate. The parcels of recovered articles were prepared. The matter was reported on the
same date at 6 -15 p.m., whereupon F.I.R. No.11 of 2010, Police Station Pishin, District
Pishin registered. Fu rther, the investigation was deputed to Muhammad Amin Jaffar SI, and
after completion of the investigation the police report/challan was submitted. On receipt
thereof the appellant was charged for the offences punishable under sections 3 and 4 of the
Explo sive Substances Act, 1908, read with section 7 of Anti -Terrorism Act, 1997 on 13 -3-
2010, to the effect: --
"It is alleged that on 24 -1-2010 you were apprehended by CIA personnel near Killi Kharoti at
5 p.m. and from your personal search two hand -grenades along with detonator were
recovered, which you were carrying for the purpose of terrorist activity."
On denial the trial commenced. Three witnesses appeared from prosecution side, while in
defence the appellant/accused neither recorded his own statement on oath, nor produced any
defence. The trial court through judgment dated 12 -4-2010, while arriving to the conclusion
that the charge has been proved against the appellant, convicted him for the offence, thereby
sentenced him to suffer rigorous imprisonmen t for a period of seven years. The convict being
unsatisfied with the judgment preferred instant appeal through jail.
Prosecution witness No.1 (P.W.1) Hizbullah SI appeared as eye -witness of the occasion, he is
also complainant of the case. He confirmed the contents of F.I.R. Exh.P/3 -A, and the written
report placed on record as Exh.P/1 -B. He has also produced seizure memo of recovered
articles as Exh.P/1 -A being its author. The parcel of the articles was also prepared by the
witness. While P.W.2 Shahabud din Head Constable is also an eye -witness of the occasion, he
being marginal witness of the seizure memo Exh.P/1 -A, corroborated the statement of P.W.1.
As far as P.W.3 Muhammad Amin SI is concerned, he is the Investigating Officer, during
course of his st atement he produced F.I.R. Exh.P/3 -A, police report/challan Exh.P/3 -D. He
also produced Article P/3 -A, the Certificate issued by Shamsullah Head Constable, after
defusing the recovered hand -grenades at the site. The Investigating Officer P.W.3 in order to
establish the plea taken by the prosecution that the recovered articles were sent for chemical
analysis, and Expert's opinion as required, placed on record a letter, and its reply as Exh.P/3 -
B, and Exh.P/3 -C. This is the whole evidence produced to establis h the case as made up by
the prosecution.
The first contention raised by the learned counsel for the appellant was to the effect that
the proceedings conducted by the trial Court were in utter violation of section 7 of the
Explosive Substances Act, 1908, because no sanction had been obtained from the
Provincial Government for prosecution of the case. The learned Prosecutor -General,
Rubina Butt conceded the fact that no such sanction was obtained. It may be so, bu t
it is to be observed that as per contents of section 7 of Explosive Substances Act, 1908
consent of the Provincial Government is required. Section 7 of the Act reads as under: --
"7. Restriction on trial of offences. No Court shall proceed to the tr ial of any person for an
offence against this Act except with the consent of the Provincial Government."
As the appellant was tried by a Special Court constituted under Anti -Terrorism Act,
1997, therefore, the procedure provided therein should be adopted. Section 19 of the Act
provided the procedure, while subsection (8 -b) of the section is relevant, which reads as
under: --
"19 (8 -b) Notwithstanding anything contained in section 7 of the Explosive Substances Act,
1908 (VI of 1908), or any other law for the time being in force, if the consent or sanction of
the appropriate authority, where required, is not received within thirty days of the submission
of challan in the Court, the same shall be deemed to have been given or accorded and t he
Court shall proceed with the trial of the case."
In view of the quoted provision the argument of the learned counsel looses its weight. The
proceedings were rightly held by the trial Court against the appellant.
The learned counsel for the appellant mostly stressed that no power vests in CIA to
investigate a case, rather their prime duty is to assist the police authorities. But in present case
the investigation has been made by CIA therefore, the case of prosecution stands on
unauthorize investigatio n, thus of no legal effect. The learned trial Judge discussed this
objection at length while disposing of the matter, and arrived to the conclusion that it is a
mere irregularity and not an illegality, thus cannot vitiate the case of the prosecution, which
otherwise based on convincing and direct evidence. Reference has been made to a judgment
of honourable Supreme Court reported in PLD 1997 SC 408, which has been rightly relied
upon by the learned trial Court. The honourable Supreme Court thereby held: --
"18. As regards the question, as to whether the above illegality/irregularity if already
committed by the C.I.A personnel would vitiate the trial, it may be observed that subsection
(2) of section 156, Cr.P.C. expressly provides that: 'No proceedings of a police officer in any
such case shall at any stage be called in question on the ground that the case was one which
such officer was not empowered under this section to investigate". It is an admitted
position that the C.I.A. is part of the pol ice Force. It is in fact a special branch
carved out from the police force for special purpose. The violation of section 156(1) of the
Cr.P.C. may not vitiate trial if no serious prejudice has been caused to the accused person
concerned resulting i n miscarriage of justice in view of above subsection (2) of section 156,
Cr.P.C., but it does not mean that the C.I.A. personnel should knowingly violate the above
provision of the Cr.P.C. On the contrary, they are legally duty bound to ensure the supremac y
of law."
In present case the personnel of CIA has not made the investigation, rather their act confined
only to the extent of apprehending of the suspected person, effecting of recovery, preparation
of seizure memo and parcels. The Investigating Office r was separately appointed, who do the
job, and submitted police report/challan before the court. In view of the facts, and the
judgment relied upon, the act of C.I.A. does not vitiate the proceedings, as it is nowhere
established that prejudiced has been caused to the appellant, being accused of the case.
As far as argument of the learned counsel for the appellant to the extent of non -production of
Expert's opinion, and wrongly placing reliance by the trial Court on report submitted by a
member of Bomb D isposal Squad is concerned, requires consideration. The prosecution
during course of trial tendered Art P/3 -A as an opinion of Expert, which in fact was prepared
by Head Constable Shamsullah being a member of Bomb Disposal Squad, Pishin, that too
only to t he effect that he defused two hand -grenades, Russian made, and handed them back to
the Incharge CIA, nothing more, but it is not enough. This article cannot be treated as a
document covered by the provisions of section 510, Criminal Procedure Code, which r eads as
under: --
"510. Report of Chemical Examiner, Serologist etc. Any document purporting to be a
report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to
Government or of the Chief Chemist of Pakistan Security Printing Corpora tion, Limited, or
any Serologist, Finger Print Expert or Fire -arm Expert appointed by Government upon any
matter or thing duly submitted to him for examination or analysis and report in the course of
any proceeding under this Code, may without calling him as a witness, be used as evidence in
any inquiry, trial or other proceeding under this Code:
Provided that the Court may if it considers necessary in the interest of justice summon and
examine the person by whom such report has been made."
In view of t he section the production of Chemical Examiner, Assistant Chemical Examiner,
Serologist, Finger Print Expert or Fire -arm Expert subject to appointed by the Government
are not required. Rather the reports submitted by them be deemed to be a document, and ca n
be used as evidence in any inquiry, trial or other proceedings under this Code i.e. Criminal
Procedure Code. While discretion lies with the court either to summon or examine person by
whom such report has been obtained or otherwise. In present case Artic le P/3 -A is not a
Report given by a Fire -arm Expert, rather it is only a certificate of confirmation of the fact
that the mentioned official has defused two hand -grenades, and handed them to the
concerned officer. Keeping in view the contents of Art P/3 -A, it cannot be treated as
a piece of evidence, nor can be tendered as such in view of section 510, Cr.P.C. This
article also cannot be deemed to be a public document, thus without calling the Author of the
document it cannot be considered as a piece of evidence under the provisions of Article 85 of
Qanun -e-Shahadat Order, 1984.
The learned counsel for the appellant while arguing the matter emphasized that the alleged
recovered articles were not got examined by the Fire -arm Exp ert, as no report disclosing
Expert's Opinion was brought on record. The learned counsel further pointed out that there is
only an effort on the part of the Investigating Officer, that too, only to the extent of providing
an explanation about non -examinati on of the material by an Expert during course of
investigation. The learned counsel referred to the statement of the Investigating Officer, who
deposed that he referred the recovered articles to Civil Defence for analysis, but due to lack
of facility it wa s returned to him. The learned counsel while referring the letter, and its reply
produced as Exh.P/3 -B and Exh.P/3 -C raised contention that both are in same handwriting,
thus cannot be relied upon, as there is also an admission on the part of Investigating Officer
to the effect. It was further his argument that the Investigating Officer failed to produce the
letter sent to Special Branch for the purpose of analysis of the recovered material. In reply the
learned State Counsel strongly refuted the arguments made by learned counsel for the
appellant. It was his contention that correspondence was made, but due to non -availability of
the facilities Expert Opinion cannot be obtained till date.
In present case, it is an admitted position that the recovered mater ial was not sent to Ballistic
Expert for obtaining his opinion. Rather, the Investigating Officer tried to obtain an opinion
from Director Civil Defence, Government of Balochistan to the effect that the recovered
hand -grenades are in workable condition or otherwise, but remain unsuccessful. Therefore, it
is an admitted position that there is no report of Ballistic Expert in respect of recovered
article. But this fact is to be kept in mind that sending of the recovered material for an Expert
opinion is not m andatory in all cases, rather it varies from case to case. Furthermore, though
opinion of an Expert is an important piece of evidence, but it is also an established principle
that where the prosecution establishes its case with direct, and confidence -inspi ring evidence,
then in the circumstances, the report of an Expert is of less value. Rather, the report will be a
help in confirming or explaining the factual aspect of the case. The honourable Supreme
Court of Pakistan in case led "Muhammad Hanif v. the St ate" reported in PLD -1993 Supreme
Court 895 provides guidelines for assessing the evidence produced in shape of expert's
opinion. It was held: --
"---The Expert's evidence may it be, medical or that of Ballistic Expert, is entirely in the
nature of confir matory or explanatory of direct or other circumstantial evidence, but if there
is direct evidence as in the instant case, which is definite, trustworthy, the confirmatory
evidence is not of much significance. In any case, it cannot outweigh the direct evid ence."
The view taken therein is also relied upon by their lordships while deciding cases: --
Sardar Khan v. The State
1998 SCMR 1823
Sarfraz alias Sappi v. The State
2000 SCMR 1758
Noor Muhammad v. The State
2005 SCMR 1958
Keeping in view the sam e, the direct evidence, which does not suffer from any other
inconformity can be relied upon, while the Report of an Expert will be only a corroborative
piece of evidence. In present case P.W. Hizbullah, and P.W.2 Shahabuddin are witnesses of
the occasion, while their statements are in confirmatory with the case as made up by the
prosecution. There are no material contradictions or variations found in the statements of both
these witnesses, nor any mala fides are asserted on their part. Therefore, in view o f the fact
that the appellant is only charged to the extent of having in his possession two hand -grenades,
and nothing more, therefore, the opinion of the Expert in the circumstances will be a
corroborative piece of evidence, and even in its absence the di rect evidence can be relied
upon. Furthermore, section 27 -A of Anti -Terrorism Act, 1997 provides a presumption against
a person being found in possession of any explosive substance. In view of material present on
record the prosecution has discharged the b urden while establishing recovery of explosive
substance from possession of the appellant; therefore, the burden shifted on the appellant to
establish the contrary. But no specific plea has been taken by the appellant, nor he produced
any witness, nor even recorded his statement on oath during course of trial, thus failed to
discharge the burden.
In view of above discussion, the appellant has failed to make out a case in his favour,
therefore, the appeal is dismissed being without merits.
H.B.T./144/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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