SOHAIL AHMED Versus THE STATE

1. ABDUL RAHIM KAZI, J.----- The present appeal has been filed on behalf of the appellant Sohail Ahmed challenging the judgment and conviction passed by the Special Court No.III for Suppression of Terrorist Activities, Karachi sentencing the appellant to undergo R.I. for seven years and further directing the forfeiture of the entire movable and immovable property of the appellant under section 5-A of the Explosive Substances Act, 1908.

2. Briefly the facts are that the present appellant was already arrested in the F.I.R. No.559 of 1992 registered with the New Town Police Station, Karachi (East) under section 399/402, P.P.C. It is alleged that at the tine of the arrest of the appellant alongwith four other co-accused in the above-mentioned case, a paper box was recovered from his lap which was suspected to have contained explosive substances and, therefore, a separate F.I.R. being Crime No.563 of 1992 was registered at the same police station. The substance recovered from the appellant was sent to expert for opinion whose opinion is positive. The charge was framed under section 4/5 of the Explosive Substances Act. The prosecution then examined P.Ws. M. Yousuf Malik, M. Aslam, Muhammad Farooq and S. Moinuddin. Thereafter, the prosecution closed the side. The statement of accused was recorded under 342, Cr.P.C. and he closed his side without producing any defence witness or examining himself on oath though chance was given. The learned trial Court after hearing the arguments was pleased to award the conviction as above. Being aggrieved the appellant has preferred this appeal.

3. We have heard Mr. Muhammad Hashim Khan, learned counsel for the appellant and Mr. Muhammad Sarwar Khan, AA.-G. for the State.

4. On the very outset the learned counsel for the appellant has raised a plea that the trial not being in accordance with the mandatory requirement of law, the entire proceedings stand vitiated. He has referred to section 7 of the Explosive Substances Act, 1908 (Act VI of 1908). The provision reads as under:--

5. "7. No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the (Provincial Government). (Or an officer authorised in this behalf by the Provincial Government)."

6. A plain reading of the above provision shows that its requirement is mandatory and in such case where the trial has proceeded without such sanction having A been accorded, the whole trial shall stand vitiated. Reliance is placed on a judgment given by a Division Bench of this Court to which one of us (Mr. Abdul Majeed Khanzada, J.) is a party in Criminal Appeal No.181 of 1993, decided on 13-7-1994. It may further- be observed that there is one sanction order placed on record as Exh.9 which is with regard to co-accused Rajab Ali from whom one hand-grenade has been recovered for which a separate F.I.R, being F.I.R. No.562 of 1992, was registered. Even this sanction order does not bear any signature of the Secretary to Government of Sindh, Home Department and is only a photostat copy. The original has not been produced. Reliance may also be placed on the case of Rasheed Ahmed v. The State PLD 1972 SC 271 and the case of Syed Mukhtar Hussain v. The State 1984 P Cr. L J 2181.

7. In view of the above discussion we have no hesitation to come to the conclusion that the trial is held in violation of the mandatory requirement of and the entire proceedings stand vitiated. There is nothing on the record to, suggest that any post facto sanction was accorded by the Government. In such circumstance the case cannot even be remanded for retrial.

8. Accordingly, we accept this appeal, set aside the judgment and conviction awarded by the trial Court and acquit the appellant. The appellant shall be released forthwith if not required in any other case.

9. N.H.Q./S-1092/K Appeal accepted.