' Gulab was convict under section 5 of the Explosive Substances Act and was sentenced to undergo 3 years' R.I. And to pay a fine of Rs, 500 or in default to undergo further 6 months' R.I. By the Special Court, Mansehra constituted under the Suppression of Terrorist Activities (Special Court) Act, 1975 per its order, dated 16-12-1984. Aggrieved from the said order the convict has come in appeal to this Court.
2. The prosecution story is a simple one. A .S.1. Muhammad Nasim (P.W.2) alongwith two constables was on patrol when he received an information about the postal bag of the appellant who was working as a postman in the Postal Department. His postal bag was searched and from it 65 detonators, 5 dynamites, 2 bundles of wire measuring 47 feet and 5 grams of Charas were recovered from it in the presence of constables Guldad (P.W.1) and Muhammad Khan. The investigation was taken up by S.H.O. Muhammad Nazir (P.W.3).
3. The appellant pleaded not guilty to the charge and during the course of his statement at the trial he admitted that he was found in possession of a bag but did not know its contents. He claimed to have been falsely implicated in the case but produced no defence.
4. The learned counsel for the appellant strenuously contended that the burden lay on the prosecution to prove its case beyond doubt and that the prosecution had signally failed to bring home the charge to the appellant beyond reasonable doubt. He added that the appellant was working as a postman but was not expected to know of the contents of the bag and that it was for the prosecution to have established that the contents comprised of explosive substance. The expression "explosive substance" has been defined in section 2 of the Explosive Substance Act (hereinafter called the Act) as under:-
2. Definition of "explosive substance".-- In this Act the expression "explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, implement or material used, or intended to be used, or adopted for causing or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement.
' It is pertinent to note that the alleged contents of the bag, namely, 65 detonators, 5 dynamites and 2 bundles of wire measuring 47 feet were not produced nor exhibited at the trial. It was urged before the learned Special Court on behalf of the prosecution that these were dangerous articles and could not be produced in Court. The plea of the prosecution was obviously misconceived and unwarranted by law inasmuch as it was imperative for the prosecution to have established satisfactorily that the aforesaid articles fell within the mischief of the expression "explosive substance" as reproduced above. The omission to produce these articles at the trial could not be treated lightly and unless and until proof was furnished to show that these constituted explosive substance the A conviction of the appellant could not be recorded under the provisions of the Act which is a special statute. The question of non-production of the crime weapons allegedly recovered from an accused but neither produced nor exhibited during the trial came up for consideration in Budho v. The State 1973 P Cr. L J 537 and it was held that the trial stood vitiated and trial de novo was directed. This dictum was followed by this Court in a case reported as Wazir Bat v.
The State 1980 P Cr. L J 294.
5 Since the aforementioned articles were not produced and exhibited at the trial these were not shown to the appellant nor he was questioned about them during his statement recorded under section 342, Cr.P.C. The police officer who allegedly recovered these articles and the other officer who witnessed the recovery were not put to identity them at the trial as these were not produced at all. Thus the factum of recovery of these incriminating articles alleged to be explosive substance from the possession of the appellant is surrounded with mystery and it would be in the interest of justice that the suspicion attached thereto may be dispelled.
6 The learned counsel for the appellant next contended that neither the expert who had examined these articles was produced at the trial nor his report was brought on the record and proved in accordance with law. His contention is not without force and substance. The learned counsel for the State maintained that Exh.P.W.3/2 signed by Captain Rana Muhammad Nazir was "Ammunition Inspection Report". It is interesting to note that none of the counsel for the parties could say as to what opinion the Captain had given about these articles. He, however, recorded two certificates on it which are as follows:-
(a) Certified that ammo is safe for stg, handling and tn.
(b) Certified that change in condition is due FW&T.
' It is evident that the report of the expert in so many clear words with regard to the nature of the incriminating articles was not brought on the record. Secondly, the question whether the Captain was an expert as contemplated by section 510, Cr.P.C. Or had been notified so by the Government merited consideration. A somewhat similar question came up for consideration. In Muhammad Ashraf v. The State PLD 1959 Pesh. 176 and it was observed that where the Government had by a notification declared the Inspector of Explosives to be a Chemical Examiner to the Government for the purpose of section 510, Cr.P.C. It was held that the Inspector of Explosive was a Chemical Examiner to the Government and his report would be admitted in evidence in any enquiry or trial under the Code. It follows that the impugned order suffers from legal infirmities and is not maintainable in the eye of law.
' In the result, I would accept the appeal, set aside the conviction and sentence of the appellant and send back the case to the learned Special Court for trial de novo in the light of the observations made above and for decision in accordance with law.