1. JAMAL KHAN MANDOKHAIL, J.---This appeal has been presented against judgment dated 16-3- 2009, passed by Sessions Judge, Loralai, whereby the appellant has been convicted and sentenced under section 4 of the Explosive Substances Act, 1908 to suffer seven (07) years' R.I. With fine of Rs.10,000 in default whereof to further undergo SI for one month. He was further convicted and sentenced under section 324, P.P.C. To suffer two (02) years' R.I. With fine of Rs.10,000, in default whereof to further undergo one month's S.I. The aforesaid sentences were ordered to be run concurrently, with benefit of section 382-B, Cr.P.C.
2. Briefly stated facts of the case are that complainant Muhammad Hashim through written application Exh.P/ 1-A lodged a report to the effect that between the night of 22/23-10-2008, he, along with his family members, was sleeping in the house. At. About 1.30 a.m., he heard three explosions in the courtyard of the house, at which, he, along with his brother Kaleemullah and Faizullah, came out and saw two persons were running. It was alleged that by means of torch-light, they identified one of culprits as Shamsullah (appellant). In the meanwhile, appellant also made indiscriminate firing upon them by means of pistol, however, they luckily saved and thereafter they fled away from the venue. Consequently, a case vide crime No.10 of 2008, under sections 3 and 4 of the Explosive Substances Act, 1908 read with section 324/34, P.P.C. Was registered at Police Station Nana Sahib Ziarat District Loralai.
3. After arrest of appellant and completion of investigation, incomplete challan was filed before the trial Court and appellant was sent up to face the trial. The trial Court, after framing charge, recording statements of prosecution witnesses and examining the appellant under section 342, Cr.P.C. Convicted and sentenced him, as mentioned hereinabove, hence, this appeal.
4. Mrs. Noor Jehan Kahoor, learned counsel for pauper appellant, argued that there is no evidence available on record, connecting the appellant with the commission of crime. The judgment of trial Court amounts to misappreciation and wrong conclusion of evidence, which is an illegality, thus, he deserves acquittal.
5. Mr. Amanullah Langove, Advocate, representing the State, opposed the arguments of pauper appellant's counsel and supported the impugned judgment. He has contended that the prosecution has successfully proved its case against appellant, therefore, the trial Court has rightly convicted and sentenced him for the offences.
6. We have considered the arguments of learned parties counsel and have gone through the record including the impugned judgment.
7. It is the case of prosecution that the complainant heard three explosions in his house, therefore, the F.I.R. Was registered under sections 3 and 4 of the Explosive Substances Act, 1908. To constitute the act of explosion, it is necessary to understand the word 'explosives', which has been defined in sub- clause (a) of subsection (1) of section 4 of the Explosives Act, 1884 as under:-- "4. Definitions. In this Act, unless there is something repugnant in the subject or context:- [(1) "Explosives":-
(a) Means gunpowder, nitroglycerine, nitroglycol, gun cotton, dinitrotoluence, trinitro toluene, picric acid, dinitro-phenol, trinitro resorcinol (styphnic acid), cyclo trimethylence trinitramine, penta erythritol-tetranitrate, tetryl, nitroguanidine, lead azide, lead styphynate, fulminiate of mercury or any other metal, diazo dinitro phenol, coloured fires or any other substances whether a single chemical compound or a mixture of substances, whether solid or liquid or liquid or gaseous used or manufactured with a view to produce a practical effect by explosion or pyrotechnic effect; and
(b) Includes:--
(i) Chemical compounds, compositions or mixtures of which will produce, upon release of its potential energy, a sudden outburst of gases, thereby exerting high pressures on its surroundings.
8. Explosives may be solid, liquid or gas, nitro compounds or in the form of water gel or slurry;
(ii) Fog signals, fireworks, fuses, rockets, percussion-caps, detonators, cartridges, ammunition of all descriptions and every adaptation or preparation of an explosives as defined in this clause; and
(iii) Such other substance as the Federal Government may, by notification in the official Gazette, specify for the purposes of this subsection.]"
9. In view above definition, the prosecution has to prove that the explosives were used in the alleged explosions. In proof of its case, the prosecution has taken into possession a piece of burnt wire and earth from the house of complainant, alleging that the wire was one of the explosive materials.
10. Considering the contention of prosecution in the light of above definition, certainly, burnt wire does not come within the meaning of explosive material, particularly when the recovered earth and burnt wire were not sent to Ballistic Expert to obtain his opinion, therefore, it could not be said with certainty that the 'wire was used in explosions. Apart from said wire, nothing else has been recovered from the place of occurrence to establish a use of explosive, hence, the prosecution has failed to prove the explosions.
11. Without prejudice to the above, even otherwise, statements of P.W.1 Muhammad Hashim (complainant) and P.W.2 Kaleemullah show that they have not witnessed the appellant making the explosions. According to them, after hearing the explosions, they came out of their house and saw the appellant along with another running away from the venue. For the sake of arguments, if their statements are believed, even then mere running by the appellant, from the place of occurrence, does not constitute the offence.
12. It is also important to mention here that the prosecution has alleged that the appellant, while running, has also made ineffective firing and the Investigating Officer has recovered five empties from the place of occurrence and, after arrest of appellant, a pistol was also recovered from his possession. It is strange to note here that neither any recovery memo of the same was prepared, nor the empties along with pistol were sent to the Ballistic Expert to prove the use of said pistol in the commission of crime. If the statement of Investigating Officer is believed to the extent of recovery of pistol, then by not sending it to the expert leads us to the conclusion that the empties do not match the pistol, which was, allegedly, recovered from the possession of appellant.
13. The house of complainant is, admittedly, situated in a thickly populated area, but none of the inhabitants have been arrayed as witness. P.Ws. 1 and 2, who are brother inter se, have neither witnessed the occurrence, nor have independent corroboration, therefore, their statements do not inspire confidence to constitute an offence under the provisions of Explosive Substances Act, 1908.
14. It has been held by the apex Court time and again that in offences, in which capital punishment is provided, statements of witnesses have to be looked with utmost care and caution. Hence, scrutiny of statements of witnesses in present case reflects that their testimonies are not up to the mark to establish the allegation against the appellant.
15. The prosecution has heavily relied upon a disclosure, allegedly, made by. Appellant after about six days of his arrest, disclosing and pointing out the place of occurrence. In order to bring the disclosure within the ambit of Article 40 of the Qanun-e-Shahadat Order, 1984, the prosecution must establish that (i) the information conveyed by the accused actually led to the discovery of some fact, (ii) the fact was unknown to the police and it was for the first time derived from the accused and, (iii) the discovery of the fact must relate to commission of the offence or connect the accused with the crime. The disclosure, stated to be made by the appellant, cannot be made basis for his conviction in the case, particularly when such disclosure was made in presence of a police- officer, that too with considerable delay without explanation and corroboration from any corner and that no new fact has been discovered in consequence thereof. Thus, the same is inadmissible in evidence in view of Article 40 of the Qanun-e-Shahadat Order, 1984 and is ruled out from consideration.
16. Even otherwise, the identity of appellant in odd hours of the night is also highly doubtful. It seems that the complainant is trying to establish a concocted story only to involve the appellant to pressurize him on the dispute of land. The complainant has stated in the complaint that there is a dispute over a piece of land, therefore, in view of such fact, the prosecution case is full of doubt and false implication of appellant cannot be ruled out.
17. Thus, in view of what has been stated and discussed hereinabove, we are of the view that the prosecution has failed to prove the case against appellant beyond any shadow of doubt.
18. Resultantly, the impugned judgment dated 16-03-2009 passed by the Sessions Judge, Loralai is set aside and appellant is acquitted of the charge. He be set at liberty, if not required in any other case.