AIMAL MIAN, J.-These are two criminal appeals bearing Nos. 179 of 1980 and 197 of 1980 against the judgment dated 18th May, 1980 passed by the learned Special Court of Sind at Karachi, con-- victing Misal Khan son of Sadday Khan, appellant in the former appeal and sentencing him to four years' R. I. Under section 5 of the Explosives Substances Act and convicting Aziz Khan son of Agha Gul, Rehmatullah son of Bahadur, Amir Amanullah son of Zardad, Muhammad Sharif son of Hamroze, appellants in the latter appeal sentencing each of them three years' R. I. For committing offence under section 6 of the above Act.
The relevant facts leading to the filing of the above appeals are that the present five appellants alongwith one Kausar Ali son of Sheikh Ali Hassan were sent up for trial in the Special Court of Sind at Karachi for offences under sections 5 and 6 of the Explosive Sub--stances Act, 1908 (hereinafter referred to as Act of 1908) read with the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as Act of 1975). The prosecution case was that on 25th March, 1979 at about 9.00 a. m. S. H. O. Police Station Baldia, Karachi, Maqbool Hussain on receiving spy information raided appellant Misal Khan's Dera comprising of temporary construction with a courtyard and .a but inside, situated in Rashidabad allegedly in presence of two mashirs, namely, P.
W. I Gul Hassan son of Rehmatullah and P. W. 4 Muhammad Irfan son of Ali Muhammad. On search, he found gunpowder weighing 10 Ks. Contained in a tin and safety fuse and charcoal in a tin. It was alleged that at the time of the above raid, appellant Misal Khan alongwith his co-accused i.e. The other appellants was present, but alleged co-accused Kausar Ali who, has been acquitted by the learned special Court was not present. It was further alleged that during further investigation o0 27 March, 1979 at about 1.00 a. m., the Investigating Officer raided the flat of co--accused Kausar Ali, situated in a building, in Usmania Colony on the pointing out of one Yaseen Khan and in the presence of two mashirs found 30 cloth bags containing chemical known as sodium nitrate, citric acid, and sulphur. Since the above accused Kausar Ali was acquitted by the learned special Court, it is, therefore, not necessary for the disposal of the present appeals to examine the above case in detail.
2. The prosecution case against the present appellants was solely based on the testimony of the two above mashirs P. W. 1 Gul Hasan, p. W. 4 Muhammad Irfan and testimony of P. W. 5 Muhammad Riaz. Assistant Inspector of Explosives, P. W. 6, S. H. O. Maqbool Hussain. The documentary evidence comprised of memo. Of recovery and seizure of dangerous gunpowder etc. Exh. 8/A, and the report of the above Assistant Inspector of Explosives Exh. 12/A.
3. (a) In support of the above appeals Messrs Shafiq Qureshi and Mir Nawaz Marwat have urged the following points :- (i)That the recovery was not proved and, therefore, the convic--tions were not warranted.
(ii)That even if it is to be said that the recovery was proved, no offence was made out under section 5 of Act of 1908 as the prosecution had failed to adduce any evidence to indicate that the recovery was under such circumstances as to give rise to a reasonable suspicion that appellant Misal Khan did not have it in his possession or under his control for a lawful object.
(iii)That against the other four appellants, no case was made out under section 6 of Act of 1908.
On the other hand Mr. Murtaza Hussain, learned counsel for the State has contended as. Follows :- (i)That the recovery was effected in accordance with law and it was proved.
(ii)That the prosecution was able to prove not only recovery of the explosive substance, but also circumstances as to give rise to a reasonable suspicion that the same was not for lawful object with appellant Misal Khan.
(iii)That under section 8 of Act, 1975, the burden was on the appel--lant Misal Khan to prove that he has not committed the alleged offence.
(iv)That since the other four appellants were present in the dera of Misal Khan and were working as labourers for Misale khan they were rightly convicted under section 6 of the Act.
4. As regards the recovery, it may be observed that mashir P. W. I Gul Hasan has not supported the prosecution as to the recovery of the alleged explosive substance in his presence. As a matter of fact in his examination-in-chief, he stated that "it is incorrect that these articles were recovered in my presence. I have already stated that the articles were in possession of appellant and were lying near the door inside dera of Misal Khan when we passed by Police has sealed these articles in my presence at the police Station." In spite of the above hostile statement to the prosecution case, he was not declared hostile by the prosecution. The other mashir P. W. 4 Muhammad Irfan also did not support the prosecution case and came out entirely with a new story by stating that :- "On25th March, 1979 I and Gul Hasan were going together to Rashidabad to meet somebody. On the way stopped to talk to a person who was known to me and in the meantime Gul Hasan went ahead, After sometime I saw Gul Hasan coming with police party and Misal Khan and three or four other accused persons. I was asked by police to be a witness in this case and on my inquiry accused Misal Khan present in the Court admitted that explosive material has been seized by police. Thereafter police took my thumb impression on the paper on which something was already written ................................................---------------------------.
I see recovery MemoExh.8-A, which is bearing my thumb mark. The contents of the recovery have been read out to me and they are not correct. I was not present at the time of recovery."
The above mashir was declared hostile by the prosecution but in spite of the fact that he was subjected to a lengthy cross-examina--tion by the learned prosecution he stuck to his version that he was not a witness to the recovery.
5. The only remaining person to the recovery is the P. W. 6 S. H. O. Maqbool Hussain, who has deposed that on 25th March, 1979 he was posted as S. H. O. At P. S. Baldia and that at about 9.00 a. m. On the above date, he went out to patrol his beat, when reached Rashidabad, he got spy information that there was explosive material in the dera of Misal Khan. Thereupon, he caught hold of two mashirs, namely, Gul Hasan son of Rehmatullah and Muhammad Irfan son of Faqir Muhammad and took them to the dera of Misal Khan, which was situated in the same area i.e. In Rashidabad and which consisted of temporary construction with a courtyard and a but inside He goes on to state that at the time of the search Misal Khan and four other accused persons were present, and on his inquiry Misal Khan identified himself and admitted to be the owner of the place.
He has Further stated that when they searched the premises in the presence of the mashirs they found ballistic powder containing in a tin and also a safety fuse which was specially made for the purpose of causing explosion from electric wire. He has also stated that he also found charcoal the basket and also in a tin. He has also deposed that the other four persons present at the premises at the time of the recovery admitted before him to be the servants of Misal Khan. He has also stated that after seizure, he prepared mashirnama Exh. 8(A and took out samples from ballistic powder and charcoal and put them into sealed parcels and so also safety fuse. In his cross- examination, he was suggested that Misal Khan and other accused were arrested on 24th March, 1979 and not on 25th March, 1979 as stated by the witness. It was also suggested that there was in fact no recovery and that the houses in Rashidabad bear numbers, whereas no number of the house was men--tioned in the memo. Of seizure. It was also suggested to him that mashir Gul Hasan was a stock witness, and was also cited as a witness to the recovery in another case investigated by him. His replies to the above suggestions were in negative. However, he was confronted with a copy of the charge-sheet in criminal case No. 264/79, entitled Stale v.
Muhammad Siddiq and another, in which above mashir Gul Hasan son of Rehmatullah was cited by him as a witness for the recovery of the girl involved in the abduction which was the subject- matter of the case.
6. It has been vehemently urged by the learned counsel for the appellants that since the two mashirs have not supported the --rose-a00P case and as no implicit reliance can be placed on the testimony of the P. W. 6, S. H. O. Maqbool Hussain, the recovery has not been proved in terms of section 103 of Cr. P. C. On the other hand, it was vehemently urged by Mr. Murtaza Hussain, learned counsel for the State, that even if the testimony of the two mashirs is to be discarded, there still remains the testimony of the S. H. O. Which is sufficient to prove the recovery.
We may observe that since no special procedure has been provided for regulating investigation and trial of an offence triable by the Special Court under Act of 1975, we are inclined to hold that the provisions of the Cr. P. C. Are applicable unless expressly or by implication they are excluded. In this view of the matter section 103, Cr. P. C. Relating to search/recovery will be attracted to. The above section provides that before making search the officer or other person who is about to make search, shall call upon two or more respectable inhabitants of the locality, in which the place is to be searched is situated to attend and witness the search and may issue an order in writing to them or any of them so to do. It further provides that the search shall be made in their presence and a list of all things seized in the course of search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses but no person wit--nessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned.
7. The learned counsel for the appellants in support of their above submission have referred to the case of Muhammad Ismail v. The State (PLD 1979 Kar. 31), in which Abdul Hayee Kureshi, J (as he then was) while construing the provision of section 103, Cr. P. C. Held as follows ---To say the least, this was a patently wrong approach in a criminal case. When the law makes a provision the Courts cannot relieve public functionaries of the obligations on ad hoc and sweeping considerations that no one in the locality would be prepared to serve as a mashir or that if he would be so prepared he would be branded as a witness under influence of police. Each case depends on its own merits. Section 103, Cr. P. C. Itself insists on res--pectable persons being called and there can be no doubt that res--pectable persons are available in every locality and they can easily be chosen by the police. Provisions of this nature are designed to create a safeguard against possible chicanery and concoction on the part of Investigating Officer and by allowing such provisions to be violated one is like only to put a premium on possible false im--plication. Such a position cannot be lightly countenanced.--- In the above-cited case reliance was placed on the case of Muhammad Khan v. Dost Muhammad Khan (PLD 1975 SC 607), the case of Mumtaz Ahmed v. The State (1974 P Cr. L J 137), the case of Sardar Ali v. The State (PLD 1964 Lab. 316) and the case of Abdul Rashid v. The State (1975 P Cr.
1. J 565), in which inter alia it was held that the Courts will ordinarily insist on a strict compliance with the requirements of section 103 Cr. P. C. And will view its non-compliance with suspicion unless an explanation was furnished for failure to secure presence of respectable witnesses omission to examine them in Court. It was also held that if a person is called from a place other than the locality, it may not make a search invalid but if the locality is populated it would cause grave doubt on the whole transaction.
Reliance has also placed on the case of Mangio v. The State (1976 PCr. L J 243) by the learned counsel for the appellants, in which a Division Bench of the erstwhile High Court of Sind & Baluchistan while dealing with a murder case held that the recovery was to be discarded as it was imperative for the investigating officer to strictly follow the provisions of section 103, Cr. P. C.
8. On the other hand Mr. Murtaza Hussain, learned counsel for the State in order to fortify his above contention, has referred to the case of Muhammad Khan v. Dost Muhammad and 17 others (PLD 1975 SC 607), in which the Honourable Supreme Court of Pakistan while dealing with the recovery in a murder case has made following observations :- ---The recovery memoranda Exhs. P. J. P. K., P. L, P. M., P, N., P. O., P. Q., and P. S. Had been duly proved by the evidence of the S. I. P. (P. W. 16). These also bear the signatures of two attesting witnesses namely Sarwar and Yaqub Lambardars, the former of the village of the parties and the latter of a neighbouring village. The S. I. P. However stated on oath that the two witnesses have not been produced because they have been "won over by the defence": This part of his statement has gone unchallenged and therefore, there is no reason to doubt its veracity. This evidence when read with the contents of the various recovery memoranda, leaves no manner of doubt that the requirements of section 103, Cr. P. C. Were duly complied with. However, it must be conceded, that the provisions of section 103, Cr. P. C. Are mandatory and are designed to guard against possible chicanery and concoction. But the argument is not that the requirement had not been com--plied with in this case, the argument on the other hand is, that no credible evidence has been produced in proof of due compliance with the above requirement. The fact that the recoveries of in-- criminating articles were made in the presence of two respectable witnesses of the locality is amply proved by the oral testimony of the S. I. P. Read with the; recovery memoranda and failure to pro--duce the best evidence has been amply explained.--- It may be noticed that irk the above Supreme Court case the statement of the S. I. P. To the effect that the two mashirs were not produced be--cause they had been won over by the defence had gone unchallenged in the cross-examination. In the background of the above facts, it was held that the statement of the S. I. P., as to the recovery read with the memo of recovery, was sufficient to prove the recovery.
9. In our view there is a distinction between a case, in which the pro--secution may be unable to produce the two mashirs to the recovery on the unchallenged ground that the same were won over and in a case in, which A the prosecution produces two mashirs, but they do not support the pro--secution case. In the former event, it may not adversely reflect on the prosecution case, but in the latter case, it may cast serious doubt as to the genuineness of the recovery.
Even if we were to hold that the recovery can be proved through the solitary testimony of an investigation police officer, in our view his testimony be such, which would inspire confidence. Any misstatement or suppression of a material fact by the I.O. On oath before the trial Court will react on his creditability and will put the Court on guard.
In the instant case P. W. 6 S. H. O. Maqbool Hussain, had apparently attempted to suppress the fact from the Court that one of the mashirs, Gul Hasan was a stock mashir readily available to the police by stating that he had not acted as a mashir to the recovery in any other case in-- vestigated by him. However, this averment was falsified when he was confronted with a copy of challan of Criminal Case No. 264/79, State v. Muhammad Siddiq and another, for offence Article 11 of the Hudood Ordinance, in which the very Gul Hasan was cited by the very S.H.O. As a witness to the recovery of a girl involved in the case. This fact casts serious doubts about the veracity of the S. H. O.'s statement in the instant case.
It will not be out of context to point out that in an ordinary criminal case, the recovery of an incriminating article like a crime weapon or blood stained cloths may be a piece of corroborative evidence in addition to the other evidence on record. In such a case even if recovery is not proved, an accused person may still be convicted on the basis of the other convincing evidence available on record, whereas in an offence under section 5 of Act of 1908 (i.e. The Explosive Substances Act, 1908), once the recovery of an explosive substance under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, is proved, the burden is shifted on an accused person to prove his innocence. Further more, an offence under Act of 1908 has also been mentioned in the Schedule to Act of 1975, of which section 8 provides that the burden to prove innocence will be on accused person if he has committed a schedule offence or is found to be in possession or to have under his control any article or thing which is capable of being used or in connection with the commission of such offence or is apprehended in such circumstances, which tend to raise a reasonable suspicion that he has committed such offence. In other words, under the above section mere recovery of an article/thing capable of being used in commission of any of the offences mentioned in the Schedule to Act of 1975, relieves the prosecution of burden of proof of an offence/guilt beyond reasonable doubt and shifts the burden on an accused person to prove his innocence, which is quite in contrast to the normal well-established principle of jurisprudence that an accused person is presumed to be innocent till the time the prosecution proves his guilt to the hilt. In our view in such a case recovery of an article/thing capable of being used in commission of any of the offence mentioned in the Schedule of Act 1975, should be such, which should not be shrouded with doubts.
We are, therefore, inclined to hold that in the instant case the prosecution has failed to prove the recovery of the Ex--plosive Substance in a manner free from doubt.
10. (a) Even if we were to hold that the recovery was proved, the question still remains, as to whether the other ingredient of section 5 of Act of 1908 has been proved by the prosecution, namely, that appellant Misal Khan was found in possession of the explosive substance in such circumstances, which tend to raise reasonable suspicion that the same was not in his possession/ control for lawful object. The learned counsel for the appellants have relied upon the case of Abdul Rahim v. The King (AIR 1951 Pat. 319), the case of Bihar v. Amir Hasan (AIR 1951 Pat. 638), the case of Rajani Kanta Manlal v. The State of Bihar (AIR 4959 Pat. 314), the case of Muhammad Ashraf v.
The State (PLD 1978 Lab. 1087). The case of State v. Ghasi and 2 others (PLD 1978 Quetta 191), the case of State through Advocate-General Sind v. Qazi Pervaiz Iqbal etc. (PLD 1978 SC 64) the case of Arshad Sher v. The State (PLD 1980 Pesh. 119). On the other hand Mr. Murtaza Hussain has referred to the case of Muhammad Yasin v. The State (1981 P. Cr. L J 823).
(b) In the first case reported in AIR 1951 Pat. 319, a learned Single Judge of the Pat. High Court while construing section 6 of Act of 1908 (i.e. Of the Explosive Substances Act) held that mere presence of the accused in a room alongwith his brother, who was found guilty under the Act does not make him guilty under section 6 even if the accused failed to disclose, what had happened in the room.
In then second case reported in AIR 1951 Pat. 638 a Division Bench of the Patna High Court while considering section 5 of Act of 1908 held that in order to make out a case under the above section, the prosecution has to prove conscious possession and actual control of the incriminating articles with guilty knowledge. In the third case reported in AIR 1959 Pat. 314, a learned Single Judge of the Patna High Court while construing section 5 of Act of 1908 held that in order to substantiate a charge under above section 5, it is not sufficient to prove that the accused was in conscious possession of an explosive substance, but the prosecution has further to prove that the incriminating objects were recovered from the accused in such circumstances giving rise to a reasonable suspicion that he had them in his possession not for a lawful object. In the fourth case reported in PLD 1978 Lab. 1087, a learned Single Judge of the Lahore High Court while construing section 126 of the Railways Act, 1890 held that mere removal of fish plates from the railway line would not be sufficient to prove guilt of an accused person under clause (n) of section 126 of the Railways Act but the prosecution is also bound to prove requisite interest or knowledge on the part of the accused to "endanger" safety of any person travelling by a train.
(c) As regards the fifth case, reported in PLD 1978 Quetta 191, it may be stated that the facts were that the appellant was sent up for trial with two other accused, namely, Abdul Rasool and Ghaus Bux, who were shown .As absconders. The appellant was convicted by the Special Court of Sind & Baluchistan at Quetta under sections 3 and 4-A of Act of 1908 and was sentenced to R. I. Of seven years and fine of Rs. 2,000 on each count, in default of payment of under further R. I. For one year.
The prosecution case was that the above accused had caused explosion near a wagon containing kerosene at the railway yard Quetta. Upon an appeal a Division Bench of High Court of Baluchistan set aside the above conviction and sentence. It was held while construing section 8 of the Suppression of Terrorist Activities Act, 1975, that in a criminal trial the initial burden is always on*the prosecution in spite of the provi--sion laying the burden of proof on the accused person and that only when the prosecution succeeds in discharging its burden of proving the case against the accused person, then the burden is shifted to the defence. It was further held that since the accused was not found in suspicious circumstances and was not in fact apprehended at the place of occurrence, he onus of proof could not have been shifted on the accused person. It was further held that if a penal statute is capable of being interpreted either in favour of or against the accused, the former should be preferred.
(d) In the sixth case, reported in PLD 1978 SC 64, the facts were that the appellant Samiuddin and respondent Kazi Pervaiz and Tayyab in two appeals were tried by the special .Court for the offences under sections 5 and 6 of the Explosive Substances Act, 1908 and were con--victed and sentenced.
Upon an appeal, the High Court of Sind and Baluchistan allowed the appeal of Kazi Pervaiz and Tayyab and set aside their convictions and sentences, but maintained the conviction and sen-- tence against the appellant. The appellant as well as State filed appeals in the Supreme Court. The appellant Samiuddin's appeal was allowed, whereas the two appeals filed by the State against the judgment of the High Court setting aside the convictions of Kazi Pervaiz and Tayyab were dismissed. The Supreme Court while construing section 5 of the Explo--sive Substances Act, 1908 and section 8 of the Suppression of Terrorist Activities (Special Courts) Ordinance, 1975, made following observa--tions :- "As the Act does not define the words "possession" and "control", they must be given their ordinary meaning, therefore, the in--gredients of an offence under the section are firstly that the accused must so proved to be in possession of an explosive substance and secondly that it must be proved that the accused is aware that the substance in his possession is an explosive substance. As observ--ed by Lord Goddard, C. I., in Regina v. Hallam "We think the ordinary Prima facie construction of the section is that (the accused) must knowingly have in his possession an explosive substance, and that must be that he knows he has a substance which is in fact explosive and, as I say, that can be inferred from the facts of case."
I am aware that the words "possession" and "control" are words of wide import, and the word "possession" especially is not free from ambiguity. Thus, for example, a landlord is in constructive posses--sion of a house leased by him to his tenant. But this does not mean that he has any possession or control over his tenant's furniture. Again a person may be in possession of goods by right of ownership or under a contract of bailment, and a bailee who, has a lien over the goods bailed to him may be entitled to resist the baillor's claim for possession, but this does not mean that he is in possession of the goods bailed to him for all purposes. This is because the meaning of possession must depend upon the context in which the word is used." ---The offence for which Samiuddin, Kazi Pervez and Tayyab were charged falls under clause (b) of the Schedule. But the section has to be construed strictly because it is a penal provision which reverses the most cherished principle of our jurisprudence namely that the burden of proving the guilt of the accused is on the prosecution. I have therefore no' doubt, and this was also the view of the High Court that this section is attracted only when the prosecution proves that the accused were in possession of the articles and things specified in the Schedule. The incriminating articles, in the instant case, were the explosives and as the prosecu--tion has failed to prove that any of the accused had then in their possession or control this section also does not help the prosecu--tion case.---
(e) In the seventh case reported in PLD 1980 Pesh. 119 the facts were that the appellant was convicted and sentenced to 5 years' R. I. By the Special Court for offence under section 5 of the Explosive Substances Act, 1908. The appellant filed an appeal, which was allowed by the High Court.
The prosecution case was that on' spy information, the S. H. O. Concerned carried out the search and found the appellant in the baihak inside the house of Gulab Sher with - 12 bore shot gun with four live cartridges and a copy of licence duly renewed up to 31st December, 1975 the appellant was carrying a plastic bag around his neck, from which he recovered a hand grenade and a detonator. A Division Bench of the Peshawar High Court while allowing the above appeal and while construing section 8 of Act of 1975 held that in order to attract above section 8, the prosecution should show (i) that the accused is found in possession of or having under his control any thing which is capable of being used for or in connection with the commission of such offence or (ti) he has been apprehended in such circumstances, which tend to raise a reasonable suspicion that he has committed such offence.
6. Whereas in the case relied upon by Mr. Murtaza Hussain, reported in 1981 P Cr. L J 823, the facts were that the appellant Yasin, who was a cleaner in P. I. A. Was tried for offence under sections 4 and 5 Act of 1908 read with section 8 of Act 1975 alongwith two other accused namely, Muhammad Yousuf, Mechanic, serving in P I A and Israr Ali a photographer and were convicted under sections 3 and 4 of Act of 1908 for having in possession explosive material and causing the explosion and were sentenced for seven years' R. I. And pay a fine of Rs. 1,000. The prosecution case was that on 24th February, 1975 at about 11.00 a. m. An explosion took place in the quarter situated on plot No. S. 3./144, Saudabad, Karachi, occupied by the appellant and his family members consisting of his wife, Shamim Bano, son aged about 3 years and another daughter. It was further alleged that one Abdul Baqi Baloch also stayed with them in the same house and that he (Yasin) made damaging statement to the neighbours, who had gathered outside the quarter on hearing the explosion. A Division Bench of this Court while dismissing the appeal made following observations "We have very carefully considered the pieces of evidence led by the prosecution in support of the case against the appellant. There is ocular evidence of the witnesses who had reached the quarter of the appellant immediately after the explosion. Their version is supported by the recoveries of live and exploded bombs and the splinters etc. The appellant had the injuries on his person. His fingers were blown off, with the blast. The son of the appellant was also injured. From the circumstances of the case, the inten--tion as is alleged, is clearly indicated. The evidence of the Explosive Experts leaves no doubt in our mind that the possession of such dangerous explosives could be, for no other purpose, than what the appellant was charged. We find that the guilt of the appellant has been established beyond any reasonable doubt. Accordingly we uphold the conviction and dismiss the appeal."
11. From the above cited and discussed cases the following principles are deducible: - (i)That mere presence of an accused person in a room/premises alongwith his brother/friend who has been found guilty under section 5 of the Explosive Substances Act, 1908, would not make him guilty for an offence under section 6 of the aforesaid Act.
(ii) That in order to make out a case under section 5 of the Explosives Substances Act, 1908, the prosecution has to prove two things, namely, (a) conscious possession/control of incriminating article with guilty knowledge, (b) recovery of the incrimi--nating article should be in such circumstances, which give rise to a reasonable suspicion that the accused had it in his possession not for lawful object.
(iii)That mere removal of a fish plate from the railway line by an accused person will not attract clause (b) of section 126 of the Railways Act, but the prosecution is also required to prove requisite interest or knowledge on the part of accused person to "endanger" safety of any person travelling by a train.
(iv) That in a criminal trial the initial burden is always on the prosecution notwithstanding any provision laying the burden of proof of innocence on accused person like section 8 of the Suppression of Terrorist Activities Act, 1975.
(v)That in order to attract section 8 of the Suppression of Terrorist Activities Act, 1975, the prosecution has to prove either of the following two ingredients in order to discharge initial burden and to shift burden of proof en an accused person ; (a)That the accused person is found in possession of or having under his control any thing capable of being used for or in connection with the commission of any of the offences mentioned in the Schedule to the Act with knowledge that the thing is capable of being used for the aforesaid purpose; or
(b) That the accused person has been apprehended in such circumstances, which tend to raise a reasonable suspicion that he had committed such offence.
(vi) That since the words "possession" and ---control" have not been defined in the Explosive Substances Act, 1908, they must be assigned ordinary meaning. The latter word is susceptible to a wider connotation as compared to the former word.
(vii) That as section 8 of the Suppression of Terrorist Activities Act, 1975 intended to place burden of proof on an accused person contrary to a well-established principle of jurisprudence, namely, that an accused person is presumed to be innocent till the prosecution proves his guilt to the hilt, it is to be construed strictly.
12. There cannot be two opinions that in order to attract section 5 of Act, 1908 the prosecution has to prove two things, namely (i) that the accused person makes or has in his possession or under his control any explosive substance, (ii) under such circumstances as to give rise to a. Reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object. Furthermore, that in order to 4ttract section 8 of Act of 1975 i.e. The Suppression of Terrorist Activities (Special Courts) Act, 1975, the prosecution is to prove either (i) that the accused person 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 any of the offences mentioned in the Schedule to the Act or (ii) that the accused person was apprehended in such circumstances, which tend to raise a reasonable suspicion that he had committed such offence.
In the instant case in our view the prosecution has not been able to prove that the appellant Misal Khan was found in possession or control of the explosive substance in such circumstances as to give rise to, reasonable suspicion that he did not have it for a lawful object. It has come on record that appellant Misal Khan was engaged in the work of extracting stones from quarry and that the other four appellants were his labourers. The quantity of the gunpowder mentioned in the seizure memo Exh. 8/A is only 10 Kilos i.e. About 22 pounds. Under rule 83F of the Explosives Rules, 1940 even a private person for his private use and not for sale can keep gun powder not exceeding 30 pounds without a licence. In the instant case even if it to be held that appellant Misal Khan was found in possession of about 22 pounds of gunpowder, simpliciter possession would not attract section 5 of Act of 1908 without further proof of the fact that he was found in possession in such circumstances as to give rise to a reasonable suspicion that he did not have it in his possession or under his control for a lawful object.
It may be pointed out that the use of the word "reasonable suspi--cion" in the above section 5, has provided an objective criterion and has excluded the possibility of pressing into service above provision for an imaginary or unfounded suspicion. We may also observe that in certain circumstances mere possession or control of an explosive article may raise a reasonable suspicion that the possession or control is not for a lawful object. If a person employed as an account clerk in a Government depart--ment is found in possession/control of 10 hand bombs/plastic bombs at his residence. In such a case, the possession/control of the above bombs itself may furnish reasonable suspicion as to attract above section 5. Nor in the instant case section 8 of Act of 1975 is attracted to for the reasons already discussed hereinabove in paras 6 to 9, namely, that the recover of the gunpowder from the appellant Misal Khan is shrouded with doubts and, therefore, the initial burden under above section 8 has not been discharged by the prosecution.
13. As regards the other four appellants, it may be pointed out that according to the prosecution case they were found sitting in the dera of appellant Misal Khan from where the alleged recovery was made and these labourers were working for him for extracting stones from quarry. In our view, simpliciter presence of the four appellants in the dera will not constitute an offence under section 6 of Act of 1908 as mere presence will not constitute supply of, or solicitation for money or the providing of premises, or the supply of material, or in any manner whatsoever, procures, counsels, aids, abets or accessory to the commission of an offence under the act in terms of section 6. The prosecution has failed to bring on record anything to prove that the other four appellants who were labourers had acted in any manner provided for in above section 6. Admittedly they were neither in exclusive nor in joint possession/control of the gunpowder etc, as per prosecution case the possessions of the dera was with appellant Misal Khan.
14. For the aforesaid reasons, we allow the above appeals and set aside the convictions and sentences and order the release of the appellants who are still in custody henceforth unless they are required in some other case. We also order the discharge of the bail bonds in respect of these appellants, who are on bail.
These are the reasons in pursuance of a short order of even dated.