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Criminal Appeal No.558 of 1983, decided on 16th October, 1984.

Explosive Substances Act (VI of 1908)--

---S. 5--Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S. 3--Recovery of hand-grenade--Recovery witness having no enmity with accused--Hand-grenade not ordinarily available or sold in market--Recovery of hand-grenade from person of accused during night time indicating design or intention of accused--Noticing presence of police party accused trying to slip away but apprehended by Police- Discrepancy pointed out in statements of two recovery witnesses not found to be a material one--Conviction maintained in circumstances.

Ghulam Nabi Bhatti for Appellant.

Mian Mushtaq Ahmad for A.-G. for the State.

Date of hearing: 9th and 16th October, 1984.

Nazar Muhammad appellant' stands convicted under section 5 of the Explosive Substance Act,- 1908, by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, vide judgment, dated 30-8-1983 and sentenced to five years, R.I. He has come up in appeal against his conviction and sentence.

2. The brief facts of the case are that Zahid Ali Sherazi S.I. (P.W.4) incharge of Police Post Baseerpur received information at about 9-30 p.m. on 21-7-1980 that Nazar Muhammad appellant was in possession of illicit arms and ammunition. At that time, besides the police officials, Abdul Qayyum (P.W.3) and Sher Muhammad (given up P.W.) were also with him. On receipt of this information he organised a raid and saw the accused passing near that place. The accused Nazar Muhammad noticing the presence of the police party tried to slip away. He was apprehended and on his personal seaech hand-grenade P.1 was recovered which was taken in possession by Zahid Ali Sherazi S.I. vide memo. Exh.P.B. attested by Abdul Qayyum (P.W.3) and Sher Muhammad (given up P.W). The accused was arrested and a complaint Exh.P.C. was drafted by the said Sub-Inspector, on the, basis of which formal F.I.R. Exh. P.A. was recorded.

The police undertook investigation and hand-grenade P.1 was sent to the Inspector of Explosives for examination, who vide report Exh.P.F. opined that the said hand-grenade is of 36-M.MK-1 type and serviceable; that the hand-grenade was dangerous to human life and property; that if fitted with detonator, it becomes more dangerous; and that the hand-grenade was in working condition but due to the absence of detonator it was not so much dangerous as it should be with detonator.

The sanction for prosecution was accorded by the Commissioner, Multan Division. vide order Exh.P.E.The accused was, thereafter, challaned to face trial.

3. During trial, the prosecution examined 4 witnesses in all. P.W.1 Maqbool Alam F.C. is a formal witness. He received the hand-grenade from Moharrir Thana on 3-8-1980 and delivered the same to the Inspector Explosives, Islamabad, intact on 5-8-1980. P.W.2 Muhammad Anwar F.C. recorded formal first information Exh.P.A, and also had kept the sealed parcel of hand-grenade in the Police Malkhana till 3-8-1980, when it was handed-over to Maqbool Alam F.C. for onward despatch to the Expert. Abdul Qayyum (P.W.3) is the witness of recovery of hand-grenade P.1 and he attested memo. Exh.P.B. Zahid Ali Sherazi (P.W.4) S.I. recovered the hand-grenade from the accused, and challaned him after investigation.

4. The accused when examined under section 342, Cr.P.C. denied the charge and recovery, and pleaded innocence. He produced Muhammad Amin (D.W.1) and Muhammad Hassan (D.W.2) in his defence. Both these witnesses stated that the accused was working as servant of Zafar to the disliking of one Ghulam Rasool, an opponent of said Zafar. Ghulam Rasool asked the accused not to work with Zafar and the present case was, therefore, fabricated because the accused had refused to agree with Ghulam Rasool.

The learned trial. Judge believed the evidence of recovery and convicted the accused as stated above.

5. We have heard the learned counsel for the appellant and the

State.

In this ;;,asw we find that Abdul Qayyum (P.W.3;' is independent witness. He has got no enmity with the accusea nor any connection with Zafar or Ghulam Rasool, the two persons mentioned by the defence witnesses. The hand-grenade is not a weapon which is available or even sold in 'market. Its recovery from the accused at night time indicates the design or intention of the accused. It is in evidence that noticing the presence of police party near the place of occurrence, he even tried to slip away but was apprehended by the police party. Learned counsel has pointed out one discrepancy in the statements of the two recovery witnesses. According to Abdul Qayyum (P.W.3), he joined the police in the police station, whereas according to S.1. Zahid' Ali Sherazi, he was present with him during patrol of the llaqa. This discrepancy is not material in the facts and circumstances of this case.

6. In view of the above, we find no merit in this appeal which is

accordingly dismissed.

S.A. Appeal dismissed.

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