1. ' MUHAMMAD SARDAR KHAN, J.-The learned Special Court N.-W. F. P., Peshawar has convicted the appellant under section 5 of the Explosive Substances Act, 1908 (hereinafter called the 'Act') and sentenced him to undergo rigorous imprisonment for a period of five (5) years.
2. ' The prosecution case was that on receipt of an information, S. H. O. Police Station Badhber, in order to arrest Badam Sher, a Proclaimed Offender, carried out the search of the house of his uncle Gulab Sher in village Badhber at about 12.30 p. m. On 27-9-1975. He found appellant in the Baithak inside the house of Gulab Sher armed with a 12 bore shot-gun with 4 live cartridges and a copy of licence duly renewed up to 31-12-1975. The appellant was carrying a plastic bag around his neck from which he recovered a hand grenade and a detonator. Thereupon a Murasila was sent by the S. H.
3. O. To the Police Station, Badhber and a case under section 5 of the 'Act' was, registered against him.
4. ' The hand grenade and the detonator with the plastic bag were taken into possession by the S. H.
5. O. In presence of P. W. Ehsahullah A. S. L and P. W. Habibul Haq A. S. I. Vide recovery memo Exh. P. W.
6. 1/1. The same were sent to the Ammunition Technical Officer, Peshawar for. Examination who reported that the grenade in question without detonator was in serviceable condition on filling hole plug and the detonator was in unserviceable condition being old manufactured and with damp effected safety fuse.
7. ' The appellant was prosecuted after necessary sanction by the Secretary to Government of N.-W.
8. F. P. ; Home and Tribal Affairs Department, Peshawar as he felt that the material placed before him provided reasonable ground to believe that appellant had committed an offence under section 5 of the 'Act'.
9. ' The appellant did not plead guilty to the charge. The prosecution produced Ehsanullah Khan A. S. I.
10. (P. W. 1), Mr. Gul Nawaz Khan S. H.
0. (P. W. 3) and Major Anwarul Haq (P. W. 4), the Ammunition Technical Officer as witnesses. The appellant produced in his defence two witnesses Awal Sher D. W. 1 and Akram Khan D. W. 2, both residents of village Badhber who deposed that they were present at the time of raid on the house of Gulab Sher but no grenade was recovered from the possession of the appellant.
11. ' There is no doubt that the articles in question are covered by the definition of "Explosive Substance" which expression, according to section 2 of the 'Act' shall be deemed to include "any materials for making any explosive substance ; also any apparatus, machine, implement, or material used, or intended to be used, or adapted for causing, or aiding in causing an explosion in or with any explosive substance ; also any part of any such apparatus, machine or implement".
12. Learned counsel for the appellant contends that the Ammunition Technical Officer has admitted that grenade cannot cause damage without detonator unless it is placed near the fire or any igniting substance and that the detonator was not in serviceable condition ; he has further admitted that as the detonator was not in serviceable condition, the grenade could not be used at the time it was allegedly recovered, therefore, even if it is conceded that the said articles were recovered from the appellant they would not fall within the definition of "explosive substance".
13. ' We are unable to accept this argument. It is true that grenade without detonator cannot cause damage but he has also stated that it can do so if placed near the fire or any igniting substance.
14. The definition of `explosive substance' is wide enough to include any material adapted for causing o aiding in causing any explosion in or with any explosive substance ; also an part of any such apparatus, machine or implement ; thus grenade is undoubtedly an "explosive substance". This would be true with regard to the detonator also, considering that it was not within the knowledge of the appellant that the detonator was in unserviceable condition. Possession and recovery of the said articles from appellant, however, have been seriously disputed. It has been strenuously urged that appellant was not found in possession of anything except a licensed gun and a few cartridges.
15. It is contended that the S. H.
16. 0., Badhber was on inimical terms with the outlaw Badam Sher and that Taus Khan, grandfather of the appellant, had brought two private complaints (certified copies Exh. D. 1 and D. 3) against him and the articles in question were planted on the appellant to involve him in a false case.
17. ' It is, true that Taus Khan had filed complaints against Gui Nawaz Khan S. H.
0. But it appears that the said complaints were brought on 20-3-1976 and 6-4-1976 respectively, admittedly after the registration of the instant case against the appellant. It may be mentioned that the appellant was arrested on 27-9-1975 and a case under section 5 of the 'Act' was registered against him on the same day. As a matter of fact Gul Nawaz Khan S. H.
0. Was questioned in this respect and he admitted that the said complaints had been made against him by Taus Khan, as he had attached immovable property of the outlaw Badam Sher under section 88, Cr. P. C. And taken into possession a mare belonging to him. Even the complaint under section 88, Cr. P. C, was brought by the S. H.
0. On 27-10-1975 and this, too, was after the present incident. There does not exist anything else on record to indicate that relations between Taus Khan and Gul Nawaz Khan were strained prior to the case against the appellant. Consequently it would be difficult to accept that the appellant was involved in the case due to malice or that the hand grenade was planted on him.
18. ' The recovery of hand grenade and a detonator has otherwitse also been assailed on the ground that the search of the house of Gulab Sher was neither attended to nor recovery witnessed by the respectable inhabitants of the locality. This, it is said, is not only in violation of the mandatory requirements of section 103 of the Code of Criminal Procedure, but also false implication of the appellant on this score cannot be ruled out. Learned counsel submits that the provisions of the nature of section 103, Cr. P. C, are designed to create a safeguard against possible chicanery and concoction on the part of the Investigation Officer and allowing such provision to be violated would tantamount to putting a premium on possibls false implication. Learned counsel has placed reliance in this respect on the case of Muhammad Ismail v. The State (1).
19. ' The facts of that case were that on receipt of information that the applicant was in possession of unlicensed arms, the S. H.
20. 0., Khanpur Police Station, at the head of a police posse, proceeded to and raided the house of the applicant ; the house was searched and a '303 rifle containing two rounds was found lying behind a box and the same was secured on the basis of a recovery memo witnessed by two Police Head.
21. Constables. The applicant was arrested and sent up for trial for an offence under section 13 (E) of the Arms Ordinance. On behalf of the applicant it was urged that the case exhibited gross violation of the provisions contained in section 103 of the Code of Criminal Procedure. It was submitted that the prosecution case rested only on recovery and section 103 of the Code of Criminal Procedure laid down a mandatory and inviolable rule that two or more respectable inhabitants of the locality must be present at the time of search, therefore, non-compliance of the provision of this section would render the prosecution story open to serious doubts. On review of a number of cases Abdul Hayee Qureshi, J. Expressed his views thus :- "In my view, which is based on the existing state of law, two such persons of a locality should be called before a search is undertaken. However there may be cases where a Police Officer on account of the locality or time, or the risks of destruction of evidence may not find it feasible to engage himself in search of witnesses before actual carrying out of the search. To illustrate, if a Police Officer comes to know that A has a gun in his house with which he is going to shoot who is wrongfully confined there, it would be idle, to insist that the Police Officer should not go to recover the gun or search for the confined person before obtaining search witnesses. Such cases, indeed are rare but in these or similar circumstances the Police Officer can rightly be relieved of the obligation which section 103, Cr. P. C. Imposes on him. The circumstances should, in such cases, be clearly stated in the evidence so that the Court may Judge for itself whether (1) PLD 1979 Kar. 31 departure from section 103, Cr. P. C. Was justified in the circumstances."
22. ' Now it is clear that failure to comply with the provisions of section 103, Cr. P. C. Does not, in all cases, make a search illegal. The object of law in enacting this provision seems to be to minimise the possibility of fraud in cases of search by having two respectable witnesses of the locality. So courts do ordinarily insist on compliance with this requirement but where an explanation is available for inability to secure the presence of respectable witnesses or omission to examine them in Court then its non-compliance alone would not make the search suspicious. The learned Judge was himself pleased to refer to the judgment of the Supreme Court in the case of Muhammad Khan v. Dost Muhammad and others (1) and the following passage at page 621 of the report was quoted :- "However, that may be, the requirement of section 103 is not absolute in the sense that failure to comply with it, will make the search illegal. As observed already the object is to guard against possible chicanery and concoction. Therefore Courts will ordinarily insist on a strict compliance with this requirement and view its non-compliance with suspicion, unless an explanation is forthcoming for failure to secure the presence of respectable witnesses or omission to examine them in Court."
23. Therefore, it is clear that in circumstances where it is not possible for a Police Officer to secure the presence of respectable witnesses it would not be desirable to insist upon strict compliance of the provisions of section 103, Cr. P. C. However, it appears, that there must be shown to exist circumstances justifying departure from the said provision of law. Now looking from that point of view we notice that the circumstances in the instant case were such that non compliance with the requirements of section 103 of the Code of Criminal Procedure alone is not enough to make us hold that the appellant has been involved in the case falsely or that the detonator and the hand grenade were planted on him or that these were not found in his possession. It is in evidence that the S. H.
0. On receipt of information that the outlaw will pass through the Maira, had left the Police Station with the Police party at about morning prayers time to put up a picket there. They did not encounter the outlaw till about 11. 30 a. m, but seem to have then received further information that the outlaw was in the house of Gulab Sher in village Badhber. Therefore, they rushed to the village and surrounded the house, and on entry found the appellant in the Baithak. There is some conflict in evidence on this score. According to the S. H.
0. The appellant was found sitting in the Baithak whereas P. W. 1 Ehsanullah Khan A. S. I. Has deposed that on the day of occurrence they searched the house of Gulab Sher first but when they found nothing there they entered the Baithak situated at a distance of about 12 paces from the house where they saw the appellant standing armed with a licensed shot-gun and 4 live cartridges in his pocket. There is also conflict in evidence of these two witnesses as regards the time at which they left the Police Station on the day of occurrence. According to Ehsanullah P. W. I they left at about 12-00 hours and went straight to the Maira to arrest the Proclaimed Offender and from there to the village of Badhber. This would have been of some benefit to the appellant but the defence witnesses have themselves admitted that Police had conducted search in the house of the accused otter Peshin prayers and that the appellant alone was present in the house at the time of raid. One can, (1) PLD 1975 SC 607 however, visualise the circumstances in which the police party must have surrounded the house of Gulab Sher and entered it in search of the outlaw (Badam Sher). There may have collected some people outside which is but natural though no such suggestion sedems to have been put to any of the prosecution witnesses, but it would be well nigh impossible to have two or more respectable inhabitants coming forward in a village such as Badhber to be witnesses to the search to earn the wrath of the outlaw and his family and thus make them their enemies. These in short seem to be the circumstances due to which two respectables of the locality could not be associated with the search. We are, therefore, not inclined to accept the argument of the learned counsel that since the requirements of section 103, Cr. P. C.
24. Were not complied with, therefore, the search is illegal. This does not, however, seem to be the end of it. Learned Additional Advocate-General contends that section 103, Cr. P. C. Does not apply to search of persons. He has drawn our attention to the words "in which the place to be searched C is situated", occurring in subsection (1) of section 103, Cr. P. C. His argument is that the said section, as these words would indicate, applies to the search of 'place' and not (the search of) 'person'. He has cited in support the case of Sundar Singh v. The State of Uttar Pradesh (1).
25. ' We regret that we cannot accept it to be a universal preposition, There may be cases albeit rare in which seizer of certain incriminating articles, on search, would not attract the provisions of the said section. But it does not seem to be correct to say that section 103 applies to the search of place only. Subsection (4) of the said section says that when any person is searched under section 102, subsection (3) a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request. And the words in the beginning of section 103 "Before making a' search under this Chapter" would seem to include search of parson as well, found in a place searched under the said provision of law. Section 102 occurs under the same Chapter as section 103 and, therefore, the requirement of having two or more respectable inhabitants of the locality would apply to the place searched as also to the person found in such place.
26. ' As stated earlier there may be cases is which it could be said without fear of controversy that section 103 would not apply to the search of a person. As for instance was the case in Sundar Singh v. The State of Uttar Pardesh cited by the learned Additional Advocate-General. There it was held that section 103 would not apply to the seizer of the shoes which were being worn by the accused at the time he was with the investigating Police officer. In that case the Sub-Inspector had seen the accused putting on the pair of shoes having blood stains while with him during the investigation.
27. He formally arrested him and took possession of his shoes in the presence of two rickshaw drivers whom he picked up on the road and prepared the seizer list. It was argued by the counsel for the accused in that case that the seizer of the blood-stained shoes by the Sub-Inspector was not free from doubt as the witnesses who had witnessed the seizer were not "respectable inhabitants of the locality in which the place to be searched is situate", as required by section 103, Cr.. P. C. In the circumstances it was held that the section applies when a search is made of a place and not to the search of a person.
28. ' This can be illustrated in another way also. Supposing authorities receive information that a certain person 'A' intended to go to another place (1) PLD 1957 SC (Ind.) 30 to sell Charas'.
29. Arrangements are made to intercept him and a party is posted on either side of the road. When 'A' arrives he is apprehended and searched and a certain quantity of `Charas' is found in his possession. In a case like this it is obvious that no order could have been issued to inhabitants of a particular locality directing them to remain at a place on the road until `A' arrived.
30. ' Similarly section 103, Cr. P. C. Would have no application to a case where a police party on patrol duty apprehends a person, on suspicion or on information that he is in possession of an unlicensed loaded revolver, and on his personal search the- unlicensed weapon is recovered from him concealed in the folds of his trousers. And a recovery memo. Is prepared witnessed by two members of the police party only. In such a case there is no question of any place to be searched and consequently section 103, Cr. P. C. Would not be attracted.
31. ' Learned counsel has raised yet another objection and this pertains to the absence of the site plan.
32. He submits that no site plan was forthcoming on record nor any seems to have been prepared by the Investigating Officer. Therefore it would not be possible now to determine as to where the Baithak in which the appellant was present and from where the 'explosive substance' was allegedly recovered from- him was precisely located and this, too, according to him, throws considerable doubt on the prosecution story and the investigation itself. He adds that the site plan was not prepared because no recovery was made from the house. It is indeed desirable that in order to understand the prosecution case more fully, a site plan containing all relevant and necessary details should normally be prepared and placed on record but it is also evident that site plan itself is not a substantive piece of evidence and its non-preparation would not, unless there exist other circumstances to show that the case was false, be fatal to the prosecution. Reference with advantage can be made in this respect to the judgment of the Supreme Court in the case of Taj Muhammad v. Muhammad Yusaf and 2 others (1).
33. ' Learned counsel has, however, raised a more substantial question and this pertains to the offence with which the appellant was charged and for which he has been tried and convicted. He submits that the offence, if any does not fall within the provisions of section 5 of the `Act' and consequently the trial of the appellant by the Special Court is without jurisdiction. His argument is that mere possession of an 'explosive substance' would not per se make a person punishable under the said 'Act' unless prosecution also shows that the accused knowingly had in his possession or under his control any explosive substance under such circumstances as to give rise to a reasonable suspicion that he did not have it for a lawful object. He has in this respect placed reliance upon the judgment in the case of Rajanikant Mandal v. The State of Bihar (2) wherein it was held that to substantiate a charge under section 5 it is not sufficient to prove merely that the accused was in conscious possession of an explosive substance. The prosecution has further to prove that the incriminating objects were recovered from the possession of the accused in circumstances giving rise to a reasonable suspicion that he had them in his possession not for a. Lawful object. If there is no evidence to prove this the charge under section 5 is not sustainable against him.
34. ' The argument is not without substance. Section 5 prescribes punishment for making or possession explosives under suspicious circumstances. It says (omitting details not relevant to this case) that any person who knowingly (1) PLD 1976 SC 234 (2) AIR 1959 Pat. 314 has in his possession any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he does not have it in his possession or under his control for a lawful object shall be punishable.
35. Thus mere possession of an incriminating object is no offence under this section. To bring home the charge against the appellant under this section, therefore, it is not enough for the prosecution merely to prove that the appellant was in conscious possession of the explosive substance. It must further prove that the said object was recovered from his possession in circumstances giving rise to a reasonable suspicion that he had it in his possession not for a lawful object.
36. ' Looking into the case from this point of view we find that although the prosecution in this case has been successful in proving possession of the detonator and the handgrenade by the appellant, it has not brought on record such circumstances as would give rise to a reasonable suspicion that the appellant had them in his possession for an unlawful purpose. It is in the statement of S. H.
0. Himself that he, Ehsanullah A. S. I. And some Police Constables raided the house of Gulab Sher at shout 12.30 p. m. They first surrounded the house and thereafter made entry through the Baithak.
37. The door was wide open. They encountered the appellant sitting in the Baithak with a shot-gun and a plastic bag around his shoulder. Ahad Sher does not seem to have made any resistance nor did he try to conceal his presence. As stated elsewhere above there is some inconsistency between the statements of Gul Nawaz Khan and Ehsanullah Khan. According to the latter, they first search the house of the accused but found nothing there. Thereafter they entered the Baithak at a distance of about 12 paces and they saw the appellant standing there. But they have not said anything which would give some indication of any movement on the part of the appellant to give rise to a reasonable suspicion that he was not having the grenade and detonator for a lawful object. It is on record that the outlaw (Badam Sher) was a cousin of the appellant. And not only the family was having traditional enemies but they also seem to be on the wrong side of law. The possibility that the appellant was having the grenade, a thing not very uncommon in this part of the Country for the protection of his own person from his enemies, cannot be excluded. Now no one can deny that protecting one's own person and property is lawful. In fact this is a right which law everywhere gives to an individual. Therefore it cannot be said, in the absence of circumstances tending to raise reasonable suspicion that he had it not for a lawful object, that the appellant is guilty of an offence under section 5 of Explosive Substances Act.
38. The words "not for a lawful object" occurring in the section imply an object which is forbidden by law or the execution of which would involve the infringement of some provision of law. It, however, depends upon the particular circumstances of each case as to what is a just ground of suspicion, but it must be at least founded on some definite fact tending to throw suspicion on the person involved, and not a mere surmise or information. In the case in hand prosecution has failed to show any circumstance tending to throw suspicion that the appellant was having incriminating articles not for a lawful object. The learned Special Court does not seem to have given due consideration to this aspect of the case. It has rather assumed that it is sufficient for the prosecution to show that an accused was found in possession of an explosive substance. And once this is proved it would be for the accused to show that he had it in his possession for a lawful object. This is how the learned Special Court has dealt with it : "The accused was found in possession of a hand grenade with a detonator and he failed to show that he had them in his possession for a lawful object. The burden to prove was on the accused as contemplated by section 8, Suppression of Terrorist Activities (Special Courts) Act and he signally failed to discharge it."
39. ' It is obvious that the learned Court has proceeded on the assumption and convicted appellant on the ground that since the grenade and detonator were found with the appellant it was for him to prove that the same were in his possession for a lawful object. Thus the burden to prove was, according to the learned Judge, on the appellant. We feel that this is not a correct view of law as contemplated by section 5 of the Act or for that matter section 8, Suppression of Terrorist Activities (Special Courts) Act. Section 5 of the Act has been dealt with in some detail above and there is no need to reiterate the same. Section 8 of the latter Act however, requires to be examined. This section reads :- "Burden of proof-Where any person accused of having committed a scheduled offence is found to be in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which tend to raise a reasonable suspicion that he had committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence."
40. Now plain reading of the above section would show that necessary presumption that he had, and the burden to prove that he had not, committed the offence, would lie on a person only where already accused of having committed a scheduled offence, (i) he is found in possession of, or having under his control, anything which is capable of being used for, or in connection with, the commission of such offence, or (ii) he is apprehended, in circumstances which tend to raise a reasonable suspicion that he has committed such offence. But in no case other than this the presumption can be lawfully raised against him or he can be legitimately saddled with the burden to prove that he had not committed the offence under section 5 of the Explosive Substances Act, 1908.
41. ' Now there exists no evidence on record to show that appellant was over accused of having committed a scheduled offence before the present occurrence. Therefore, no presumption (of commission of the offence) could have been raised so as to shift the burden to him to prove that he had not in fact committed the offence. Thus burden of the prosecution to bring on record the circumstances as to give rise to a "reasonable suspicion to " was in no way lessened.
42. ' In the circumstances, therefore, it cannot be said that prosecution has succeeded in bringing home the charge to the appellant beyond reasonable doubt. This appeal is consequently accepted. The conviction and sentence of the appellant are set aside and he is acquitted of the charge against him. He shall be set at liberty forthwith if not wanted in any other case. The grenade and detonator shall, however, stand confiscated to the State.