MUKHTAR AHMED JUNEJO, J.--- Appellant Abdul Waheed was tried with co-accused Haji Athar Hussain and Haji Abdul Hameed by the Special Court-I (Suppression of Terrorist Activities), Karachi, for the offence punishable under section 5 of the Explosive Substances Act, 1908. Under the judgment, dated 13-5-1990, learned trial Court acquitted the co-accused but convicted appellant Abdul Waheed for the said offence and sentenced him to suffer R.I. For 3 years. Appellant has challenged his conviction and sentence.
2. According to the prosecution on the night between 5th and 6th September, 1989 Malik Muhammad Nawaz, S.H.O. Orangi Extension Police Station was on patrol duty when at 11-30 night he received spy information that certain bombs were kept in House No.41 of Bangla Bazar, Orangi Town, Karachi. He communicated this information to Illaqa Magistrate, Muhammad Usman, D.S.P.
Pervez Ahmed and Major Ghulam Murtaza, who were requested to join him for going to the spot for raid. They joined the S.H.O. In forming a raiding party and proceeded to House No.41, Bangla Bazar, Orangi Town, Karachi, which was owned by Haji Zaheeruddin, father of the appellant. On entering said house, the raiding party found certain containers lying along a wall of the entrance place and containing fat. The raiding party found a brown paper packet lying behind the containers of fat.
The packet on opening, was found to contain 8 pipe bombs. In view of this, the raiding party sent for Moinuddin, Deputy Director Civil Defence, who was handed over the recovered bombs for examination. Such Mashirnama was prepared and it was signed by the Magistrate, the Mashirs,, and the S.H.O. At the time of recovery the S.H.O. Arrested the appellant, who was present at the spot.
He was taken to the police station, where the S.H.O. Lodged the F.I.R. On behalf of the State. The S.H.O. Called for three other sons of Haji Zahiruddin for interrogation and out of them co-accused Abdul Hameed and Athar Hussain were arrested on 8-9-1989. The S.H.O. Obtained sanction from the Provincial Government for prosecution of the appellant and the co-accused, and secured report of expert Moinuddin. On completion of investigation, the appellant and the co-accused were challaned. During their trial the appellant and the co-accused pleaded not guilty to the charge Exh.1 containing the prosecution allegations. Prosecution examined P.Ws. Muhammad Usman Exh.2, Moinuddin Exh.3, Haji Saleem Akhtar Exh.4, Muhammad Nawaz Exh.5, Parvez Ahmed Exh.6 and Ghulam Murtaza Exh.7.
3. In his statement Exh.8, the appellant stated that he was living in House No.41, Sector 15-C, Orangi Town, but was not aware if the bombs were recovered from his house. He admitted that the bombs were shown to him after the same were recovered. Appellant admitted being a butcher. The appellant alleged enmity with one Siraj. He corrected himself by saying that he had enmity with S.H.O. Malik Muhammad Nawaz, who demanded bribe, that was not given to him and he was angry.
4. Appellant did not wish to be examined on oath but examined in defence D.W s. Haji Zaheeruddin Exh.Ll, Muhammad Arabi Exh.12, Shaikh Muhammad Farooq Exh.13 and Muhammad Hussain Exh.14.
After recording all this evidence and hearing learned counsel for the parties, learned trial Court convicted the appellant and passed sentence of imprisonment against him, while acquitting the co-accused. Hence this appeal.
5. Mr. Azizullah K. Shaikh, learned counsel for the appellant criticised the prosecution evidence to be full of contradictions and argued that the prosecution had failed to prove if the appellant was in conscious possession of the pipe bombs and that there was not an iota of evidence to show if recovery of the pipe bombs was made from custody much less exclusive custody of the appellant.
It was next argued that while searching house of appellant's father, the police had failed to follow the provisions contained by section 103 of Cr.P.C. And that mere fact of the appellant being a butcher, did not connect him with alleged recovery of the bombs. In support learned counsel for the appellant cited the cases of (i) Qazi Pervaiz Iqbal and others v. State PLD 1976 Kar 583 and (ii) State v. Qazi Pervaiz Iqbal etc PLD 1978 SC 64.
6. Mr. Hayat Qureshi, Advocate appearing for A: G. Sindh supported the conviction, although he conceded that there was no evidence if the recovery was from exclusive possession of the appellant. He argued that the appellant was a butcher and he alone was dealing with fat and hence he was liable for possessing the bombs, which were recovered from canisters of fat.
7. On the point of recovery, prosecution examined Magistrate Muhammad Usman Exh.2, Mashir Salim Akhtar Exh.4, S.H.O. Malik Muhammad Nawaz Exh.5, D.S.P. Pervaiz Ahmed Exh.6 and Major Ghulam Murtaza Exh.7. Magistrate Muhammad Usman Exh.2 deposed that the eight bombs were recovered from a Khaki packet, which was lying behind the canisters, some of which contained fat and were lying under a stair case near main entrance of house of Zaheeruddin, father of the appellant and the co-accused. He supported the Mashirnama of recovery Exh.2-A. Mashir Salim Akhtar Exh.4 deposed that he was taken by police to house of Zaheeruddin, where he saw a paper packet lying in front of the appellant, who took out from the packet a pipe bomb. He added that the appellant did not take out any other thing from the packet and that this happened at 2-00 a.m. On 6-9-1989, while the Mashirnama was prepared in the early morning. S.H.O. Malik Muhammad Nawaz deposed that a brown paper packet was lying behind containers, which were lying along a wall of entrance place of Zaheeruddin's house. That on opening the brown paper packet it was found to contain 8 pipe bombs. D.S.P. Pervaiz Ahmed deposed that a Khaki parcel was recovered from behind some containers containing fat. That the Khaki parcel contained 8 pipe bombs and it was recovered from the covered area just inside the main gate. D.S.P. Admitted that he was standing 15/20 feet away from the place of recovery and he was shown the Khaki parcel by the S.H.O. Major Ghulam Murtaza deposed that when police raided house of Zaheeruddin (father of the appellant), he did not enter the house. He added that at 2-00 a.m. The S.H.O. Recovered from the house a paper packet containing bombs and that the same was shown to him by the S.H.O.
8. None of these witnesses stated if alleged recovery of bombs was from the appellant. Mere fact that the packet of bombs was recovered from a place near the canisterss of fat, would not make the appellant liable for the recovery if he happens to be butcher by profession. Haji Zaheeruddin has five married sons as admitted in cross-examination by Mashir Salim Akhtar, who added that police had taken all the five sons of Zaheeruddin to the police station. Magistrate Muhammad Usman admitted that all the three accused viz. The appellant and the acquitted accused, were present in the house alongwith their wives and children. S.H.O. Muhammad Nawaz deposed that he arrested the appellant at his house and then lodged the F.I.R. At the police station, where he sent for all the three accused and fourth son of Haji Zaheeruddin. The S.H.O. Added that during the investigation he arrested the co-accused. Although the house from where the recovery was effected, is in joint possession of the appellant and his brothers and their father but there is no explanation, as to, why the appellant and the co---accused alone were challaned and the rest were not challaned. S.H.O. Muhammad Nawaz did not furnish any explanation for this, although after arresting the appellant he sent for three other sons of Zaheeruddin at the police station for interrogation. The only explanation on this point comes from the D.S.P., who deposed that during investigation he came to know that the place from where pipe bombs were secured, is in possession of the appellant. The pipe bombs were recovered from an open place inside the house of Zaheeruddin and there is nothing in evidence to show if a particular place of that house was put to the exclusive use of the appellant. If the canisters containing fat were lying at the place of recovery that would not by itself proof that such place was in exclusive, use or custody of the appellant.
9. There are material contradictions in the prosecution evidence Magistrate Muhammad Usman said that at the time of the raid, door of the house of Zaheeruddin was knocked and it was opened by Zaheeruddin, father of the appellant and that all the three accused including the appellant were present there alongwith their respective wives and children. S.H.O. Malik Muhammad Nawaz deposed that he got opened the main gate of Zaheeruddin's house by residents of the house and then entered inside. D.S.P. Pervaiz Ahmed did not state if the gate of the house was opened by Zaheeruddin. Major Ghulam Murtaza deposed that the main door was got opened on instructions of the Magistrate and that it was opened by an old man. Mashir Salim Akhtar did not state if main gate of the house was knocked or got opened by the Magistrate or by the S.H.O. Evidence of Salim Akhtar shows that he was brought to the house of Zaheeruddin, after the raid. Mashir Salim Akhtar did not see recovery of the paper packet, which he saw lying in front of the appellant. The only role attributed by the Mashir to the appellant was, that he took out from the brown packet a pipe bomb.
He did not state if 8 bombs were recovered. Evidence of Salim Akhtar shows that there was no proper compliance with the provisions contained by section 103 of Cr.P.C. Mashir Salim Akhtar admitted that his signature on the Mashirnama Exh.2-A was taken at his house at the morning time. Magistrate stated that all the three accused were present in the house alongwith their wives and children. The other witnesses did not state so, except Salim Akhtar who said that all the five sons of Zaheeruddin were married and they were taken to the police station. This is in conflict with evidence of the S.H.O., who said that he arrested the appellant at the spot and sent for three other sons of Zaheeruddin at the police station. All these contradictions make the prosecution story doubtful. In the case of Qazi Pervaiz Iqbal and others v. State I L D 1976 Kar. 583 a box containing explosives was recovered from underneath cot of the accused lying in a room occupied by the accused and two other persons and the view taken was that in circumstances of the case the conscious possess of the explosives by the accused cannot be inferred because the possibility the during absence of the accused someone else smuggled explosives in the room and hurriedly kept the same under cot of the accused, cannot be ruled out. Cited case went to the Supreme Court of Pakistan which decided the same under the judgment reported as PLD 1978 SC -64. The Supreme Court of Pakistan rejected the view of the trial Court that the accused was in possession of the explosives because he knew about them and shared room in question with other two accused.
10. An observation by learned trial Court that his inspection of the site effectively refuted the contention that an outsider could have placed the pipe bombs in house of the accused without their knowledge and knowledge of the other inmates of the house, does not carry any further case of the prosecution, if recovery of the bombs from exclusive possession of the appellant is not proved. Learned trial Judge appears to have realized this by acquitting two of the accused.
11. There can be no cavil with the observations made in the case of Misal Khan v. State 1983 P Cr. L J 1628 and reproduced in the impugned judgment. As observed in the cited case the burden shifts to the accused to prove his innocence only after recovery of an explosive substance is `proved' from such an accused.
12. In view of the above discussion, we are of the view that evidence adduced by prosecution in the trial Court was not sufficient for conviction of the appellant, more particularly when the co- accused were acquitted by the trial Court on the same evidence. The sole ground for conviction of the appellant in our view appears to be that he is butcher by profession. This alone would not make him liable for the offence as already discussed. We, therefore, accept this appeal and set aside the conviction and the sentence awarded to the appellant, who stands acquitted. Appellant be set on liberty if not-required in any other case.
These are reasons for our short order, dated 9-8-1990, by which we allowed this appeal and set aside the conviction and sentence of the appellant by judgment of the Special Court and ordered the appellant to be set at liberty.