KHIZAR HAYAT, J.--- Muhammad Mukhtar son of Muhammad Ashiq resident of village Chhant, District Kasur, was convicted on charges under section 13 of the West Pakistan Arms Ordinance, 1965 (hereinafter called, the Ordinance) and section 5 of the Explosive Substances Act, 1908 (hereinafter called, the Act) vide judgment, dated 29-5-1990, by Special Court, Lahore constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, and sentenced to 7 years' R.I.
And a fine of Rs.10,000 or in default to undergo 1 year's R.I., under the former charge and to 10 years'
R.I. And a fine of Rs.20,000 or in default to undergo 2 years' R.I., under the latter. He has appealed.
2. On 19-4-1988, Inspector, Muhammad Sadiq of C.IA. Staff Kasur (P.W.3) received a secret information that large quantity of illicit arms and ammunitions was stored in the house of the appellant. He organised a raiding party, the same day, which included two witnesses from the public, namely, Nabi Bakhsh (P.W.2) and Shah Muhammad alias Shahna (given up P.W.). The party reached the house of the appellant at 6 p.m., in the company of Khurshid Anwar Cheema, Inspector/S.H.O. Police Station Ganda Singh Wala, who met them in the way. The appellant, on seeing the police party had allegedly slipped away. His house was, however, searched in his absence and unlicensed arms and explosives, namely, 13 Klashnikoves (P.2/1-13), 85 magazines of Klashnikov (P.4/1-85), 12, 471 bullets of Klashnikov (P.6/1-12471), 3 automatic pistols of .32 bore (P.7/1- 3) with 125 cartridges (P.8/1-125), 9 hand-grenades (P.9/1-9), 15 cleaning kits (P.10/1-15) with 15 bottles of oil, 10 fuzes (P.11/1-10), 5 spare-parts of Klashnikov, 2 tins containing explosive material and 3 sealed packets, were recovered and seized under memo. Exh. P.C. Inspector Muhammad Sadiq (P.W.3) sent complaint (Exh. PA.) to Police Station Ganda Singh Wala, where F.I.R. (Exh. P.B.) was registered accordingly.
3. Inspector Muhammad Sadiq of C.I.A. Staff Kasur (P.W.3) investigated the case. He sent hand- grenades (P.9/1-9) and fuzes (P.11/1-10) to the office of the Bomb Disposal Unit, Lahore, through Constables Ghulam Nabi and Muhammad Boota (P.W s., not produced). The In charge,, of the Bomb Disposal Unit Mr. Allah Din vide copy of his letter Exh. P.E. Dated 31-7-1988, sent to Inspector- General of Police, Punjab, opined that,-
(i) Two boxes contained 10 white and 10 red fuzes are used to detonate `explosive';
(ii) Three packets contained 9 detonators, are used in hand-grenades M36; and (i.e) One plastic packet contained 10 non-electric detonators No.27 are used along with safety fuzes to detonate explosive.
After obtaining sanction under section 7 of the Act, challan, against the appellant, was put in the Special Court set up under the Suppression of Terrorist Activities (Special Courts) Act, 1975, for trial.
4. The appellant did not plead guilty to the charge and in order to prove the same, the prosecution produced 3 witnesses before the trial Court. H.C. Nazir Ahmad (P.W.1) stated to have drawn up formal F.I.R. (Exh. P.B.) on the basis of complaint (Exh. P.A); Nabi Bakhsh (P.W.2) and Muhammad Sadiq Inspector (P.W.3) are the recovery witnesses-who largely narrated the facts as mentioned in para. 2 above, Nabi Bakhsh (P.W.2) is resident of Kasur which is 15/18 miles away from the place of recovery. He stated that he had gone to C.I.A. Staff Kasur's office on the relevant day for enquiring about his neighbour whom police had taken away. He met Muhammad Sadiq Inspector (P.W.3) there who was his previous acquaintance. The Inspector took him along to village Chhant for conducting raid on appellant's house. They reached there at 8 a.m. The appellant was absent, but his were was present. Arms (Exh. P.1 to Exh.P.10) were recovered from there and seized under memo.
Ex. P.C. He thumb-marked the same. In his cross-examination, he stated that he did not remember to have stated in his police statement that appellant's were was present in the house at the time of raid. He admitted that, he as well as his were were involved m 3/4 cases of smuggling and of possessing illicit arms. He conceded that he never visited village Chhant earlier. Muhammad Sadiq Inspector (P.W.3) made similar statement. According to him, besides arms (P.1 to P.10) ten fuzes (P.11/1-10), two packets containing other explosive material were also recovered. He sent grenades (P.9) and fuzes (P.10) to Bomb Disposal Unit for opinion. He admitted that the appellant was neither arrested nor joined in any investigation of a criminal case other than the instant case. He asserted that at the time of raid the appellant's were was present in the courtyard of the house but she was not arrested. The father of the appellant had visited the spot while he was busy investigating the case there. Asghar and Jahangir,, neighbours of the appellant, were called by him but they did not join the investigation and that he did not proceed against them for their refusal to join the investigation. He did not know if Jamal Din was member of Union Council or Tufail was Lambardar of village Chhant. He, however, conceded that he visited village of the appellant for the first time on the day of raid.
6. The appellant when examined under section 342, Cr. P.C. Denied the allegations. He asserted that his house was never raided or searched and that the prosecution witnesses who deposed against him belong to the stock of the police. He produced Sardar Muhammad Tufail Dogar (D.W.1), a member of Union Council Chhant, in his defence, who stated that appellant's were was living in separation in a different village with her parents for the last 3 years. He asserted that the house of the appellant was never raided/searched by the police.
7. Learned trial Court on consideration of the material on record believed the prosecution evidence and convicted and sentenced the appellant, as indicated above, hence this appeal.
8. We have heard learned counsel for the appellant as well as for the State at some length and perused the record with their assistance.
9. In the first place, we find that there is no expert's oral or documentary admissible evidence to show that any of the articles recovered from the house in question was in fact an `explosive substance' as defined in section 2 of the Act. The prosecution banks on copy of letter (Exh. P.E.) which appears to have been written by Allah Din, Unit Commander, Bomb Disposal Unit, Lahore, to Inspector-General of Police, Punjab. According to section 509, Cr. P.C., no doubt, a report by Fire- arms Expert appointed by the Government in respect of a matter or any material submitted to him for examination or analysis can be used as an evidence without examining him in Court, but Allah Din's report (Exh. P.E) in our view, is not covered by section 509, Cr. P.C., because it is not proved that he is Fire-arms Expert appointed by the Government nor he had described himself to be so while signing the report. Again, whatever was the effect of the report (EARE) has been washed out because, Constables Ghulam Nabi and Muhammad Boota who according to Muhammad Sadiq, Inspector (P.W.3) took the arms/substances to the office of Bomb Disposal Unit for examination/analysis, have not been produced to prove that the articles reached the destination intact. Furthermore, Nabi Bakhsh (P.W.Z) has not stated that any explosive substance was ever recovered from the house raided in his presence, particularly the material which finds mention in report (Exh. P.E.). In these circumstances, the conviction of the appellant recorded under section 5 of the Act cannot be maintained.
10. The defence has seriously challenged that the place from where the illicit arms/explosives substances (P.2, P.4 and P.6 to P.11) were allegedly recovered belonged to the appellant or that it was under his possession and control. Learned counsel stressed that mere assertion by the P.W s., that the house from where arms were recovered belonged to the appellant cannot be accepted as they themselves are strangers to the village of the appellant and have no personal knowledge about it. Learned counsel appearing on behalf of the State has defended the impugned judgment.
11. The pivotal question for determination in the case is, whether the place of recovery is proved beyond reasonable doubt to be under possession and control of the appellant? Nabi Bakhsh (P.W.2) and Muhammad Sadiq Inspector (P.W.3) have appeared to support the charge. Both of them come from Kasur, which is 19 miles away from the spot. They admitted to have visited village Chhant (where place of recovery is situate) for the first time on the day of raid. They do not, therefore, have personal knowledge that the appellant lived in the house in question. Admittedly, the appellant was not present at the relevant time. The P.W s. No doubt stated that appellant's were was found present there and it was she who told them that the appellant had slipped away but this story is afterthought and appears to have been introduced to connect the appellant with the house in question. The appellant,, was not seen by the P.W s. Slipping away from that house.
Obviously, such a big quantity of arms found lying in the house in question must be in everybody's knowledge living there, Had anybody, much less the were of the appellant, been present there at the time of raid, then Muhammad Sadiq Inspector (P.W.3) who claimed to be having 29 years service as Investigating Officer would have arrested her or at least ascertained her name, joined her in the investigation and interrogated her effectively to unearth the real possessor and controller of the place. But astonishingly even the fact, that appellant's were was present in the house in question at the time of raid, does not find mention in the F.I.R. Which was recorded after recovery of the arms. So, the story of presence of appellant's were there is an innovation, hence not believable. Lambardar or the councillor of the village who could/should have been called under section 103(5) and 160, Cr. P.C., to attend the proceedings and any refusal on their part to do so would have exposed them to legal action under section 174/187, P.P.C. But it was not done either. We are, therefore, constrained to remark that the Investigating Officer had, either due to gross inefficiency or in order to screen the real culprit, deliberately failed to take all legal steps and avoided to collect necessary positive evidence about the real possessor or controller of the place of recovery. Furthermore, the credibility and respectability of Nabi Bakhsh (P.W.2), the only wetness from public, is highly questionable as he and his were are admittedly challaned in smuggling cases. Again he contradicted Muhammad Sadiq, Inspector (P.W.3) as he did not state about recovery of any explosive substance and gave the time of raid as 8-00 a.m. For all these reasons we are of the considered view that there is no cogent and convincing evidence on record to hold that the place of recovery at the relevant time was under possession and control of the appellant, hence the charge under section 13 of the Ordinance is not established and consequently the conviction recorded by the trial Court there under cannot sustain.
12. Resultantly, we allow the appeal, set aside the conviction and sentence of I the appellant and acquit him. He shall be released forthwith if not required to be' detained in any other case. .