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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---Criminal 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 to 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
material 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 prosecution 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 provided 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 discussed 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, had 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 submitted 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---

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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 State.
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,
whereby 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 appellant 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 present 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 establish, 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-grenades, 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 reaching 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

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date at 6-15 p.m., whereupon F.I.R. No.11 of 2010, Police Station Pishin, District Pishin registered. Further,
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 Explosive 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 imprisonment 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 Shahabuddin 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 statement 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
establish 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, but 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 trial 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 the Court shall proceed with the trial of the case."

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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 investigation, 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 police 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 in 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 supremacy 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 Officer 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 Disposal
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 the 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 reads 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 Corporation, 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."

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In view of the 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 can 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 Article
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 Expert, 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-examination 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 was 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 material 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 mandatory 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-inspiring 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 State" 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
confirmatory 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 evidence."
The view taken therein is also relied upon by their lordships while deciding cases:-Sardar Khan v. The State
1998 SCMR 1823

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Sarfraz alias Sappi v. The State

2000 SCMR 1758
Noor Muhammad v. The State
2005 SCMR 1958
Keeping in view the same, 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 of 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 direct 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 burden 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.

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