' SH. KHIZAR HAYAT, J.---Munawar Ahmad son of Isa Khan caste Bhatti resident of Chak No,175/7-R, Tehsil Fortabbas, District Bahawalnagar, has filed this appeal against the judgment, dated 16-7- 1990, by Judge, Special Court, Bahawalpur, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, convicting him under section 5 of the Explosive Substances Act, 1908, and sentencing him to undergo 14 years' R.I., besides directing forfeiture of appellant's movable and immovable property to the Goverment.
2. Facts of the prosecution case briefly are that Sana-ul-Haq, Inspector/S.H.O., Police Station Fort Abbas (P.W.5) during the investigation of case F.I.R. No,198/87 registered under the Explosive Substances Act at Police Station Fort Abbas, learnt that one Umar Hayat delivered a hand-grenade to Master Muhammad Aslam Jat of Chak No,109/6-R who gave it to Fazal Karim and Nazir Ahmad (a brother of the appellant), therefore, he (Sana-ul-Haq P.W.5) conducted a raid at the Dera of Nazir Ahmad Bhatti of Chak No,175/7-R on 17-8-1985 in the company of Ghulam Rasool Lambardar P.W.(not produced) and Ahmad Khan (P.W.3) where Munawar Ahmad (appellant) was found present, who as a result of interrogation pointed out a place in "Kotha" used for tethering cattle and in the presence of Ahmad Khan (P.W.3), S.I. Sajjad Haider (P.W.4) and Sana-ul-Haq (P.W.5) dug out a hand-grenade (P.1) from there which was seized under memo. Ex-P.C. The appellant was arrested. Sana-ul-Haq Inspector (P.W.5) then drafted a complaint (Ex.PA.) and sent it to Police Station Fort Abbas whereupon A.S.I. Muhammad Anwar (P.W.6) recorded formal F.I.R. Ex.-PA/1. On 3- 11-1987 Maula Dad, ASI/Inspector of Explosives, Government of Pakistan, was called at the Police Station who examined the hand-grenade (P.1) and opined that it was serviceable and dangerous to human life and property vide report Ex-P.B. After completing investigation and obtaining necessary sanction challan was sent to Special Court.
3. At the trial, the prosecution examined 6 witnesses in support of the charge. Ahmad Khan (P.W.3), S.I. Sajjad Haider (P.W.4) and Sana-ul-Haq, Inspector (P.W.5) supported the recovery of hand- grenade (P.1) from the appellant. Maula Dad, ASI (P.W. 2) proved his report Ex-P.B. About hand- grenade (P.1). The appellant denied the allegation and explained that he was falsely involved by the Police at the instance of Ghulam Rasool Lambardar. Appearing himself in disproof of the allegations the appellant controverted the allegations on oath and also produced Muhammad Yunis (D.W.1), Ahmad Ali Zaki (P.W.2) residents of Chak No,42/3-R, Ghulam Sarwar (D.W. 3) and Alhaj Muhammad Sadiq (D.W.4) of Chak No,175/7-R, in defence. Muhammad Yunis (D.W.1) and Ahmad Ali Zaki (D.W.2) stated that they saw the appellant and Master Muhammad Aslam under arrest with Police. In their presence Master Muhammad Aslam and his father-in-law Ghulam Nabi had brought a hand-grenade from their house but nothing was recovered from the appellant. Ghulam Sarwar (D.W.3) and Alhaj Muhammad Sadiq (D.W.4) stated that nothing was recovered from the appellant and that the hand-grenade was recovered from Ghulam Nabi by the Police at the information of Muhammad Aslam.
4. Learned trial Court disbelieving the defence-witnesses found prosecution as "succeeded in bringing home the guilt of the accused to the extent of infinity". And convicted and sentenced the appellant as indicated above. Hence this appeal.
5. We have heard learned counsel for the appellant as well as for the State and perused the record.
6. Learned trial Court, of course, discussed the evidence of the defence-witnesses but it did not assess and evaluate the prosecution evidence at all, rather it used irrelevant and inadmissible material against the apppellant as is apparent from the portion of paragraph 4 of the impugned judgment which is reproduced hereunder:-- "As regards motive it is an admitted fact that the hand-grenade is not an article which is ordinarily available or sold in the open market. But only fact that the recovery of the hand-grenade from the person of the accused during investigation indicating design or intention of him. Apart from this, the accused person Munawar Ahmad has submitted Ex.DA. And Ex.D.B. In his defence statement which clearly sufficed that he has been involved in criminology. The instant case is neither new to him nor has any significatory aspect to absolve from the charge against him. Thus the motive of the occurrence prima facie has been established on record without any shadow of doubt."
It would be seen that the trial Court has in the above quotation referred to the motive saying that it was established. There is no question of establishing the motive as no motive was either mentioned or proved by prosecution-witnesses. Furthermore, the trial Court took into consideration the statements of the prosecution witnesses recorded under section 161, Cr.P.C., brought on record as Exhs. D.A. And D.B. While confronting certain portions thereof to the P.Ws. During cross- examination but the trial Court on account of sheer ignorance has used those statements in favour of prosecution in utter disregard to the provisions of section 162, Cr.P.C. They can be used only for purposes of contradicting the maker of statement (witness) under Article 140 of Qanun-e- Shahadat or for the purposes as given in Article 40 and 46 of the Qanun-e-Shahadat.
7. Discussing section 5 of the Explosive Substances Act in para. 8 of the impugned judgment the trial Court held that facts proved on record gave rise to "suspicion" (not "reasonable suspicion") that Munawar Ahmad (appellant) failed to give any explanation showing that he possessed the hand-grenade for any lawful purpose. He observed that,- "this section does not require any strict proof of the mala fide intention of the person in possession of the explosive. It is quite enough if the surrounding cricumstances are such as to give rise to a reasonable suspicion that the accused did not possess the explosive for a lawful object."
8. The prosecution can succeed by proving two things, namely, (1) that the accused person was found in possession of an explosive substance, and (2) in the circumstances which give rise to a "reasonable suspicion" that the accused did not possess it for a lawful object. Finding on both these questions is not one of law but is of fact and unless such finding is recorded an accused cannot be convicted. Their Lordships of the Supreme Court in Ahmad Sher's case PLD 1983 SC 235 made very instructive observations explaining the true import of the section and the shifting of burden to the accused to prove that his possession of the explosive was for lawful object:-- "Therefore, section 5, of the Act was so worded as to make it necessary to show that the circumstances in which any person was found to be in possession of an explosive substance, were such that it would be reasonable to suspect or infer therefrom that he was carrying it or had it in his possession for an unlawful purpose. Obviously a finding in this respect would not be one of law, but purely of fact. A number of factors would be relevant for a finding on this question, for example, the nature or the quantity of the substance, the time and place where the person in question was found in possession of explosive material. If the prosecution is able to bring on record facts from which the Court can reasonably infer or suspect that he was not carrying it for a lawful purpose, then the law shifts the burden of proof on to the accused and it is, then, for him to dislodge the suspicion and show that he was carrying the substance in question for a valid purpose."
We are constrained to remark that the trial Court did not take the trouble of discussing prosecution evidence and giving reasons as to why did it believe them on the point of recovery. He failed to notice a material discrepancy in the statements of the witnesses as to the place of recovery, namely, according to Ahmad Khan (P.W.3) recovery took place from Killa No,19 of appellant's square whereas the police-witnesses say that hand-grenade was recovered from within a cattle shed which had no shutters. As pointed out earlier, learned Court erred in law by having read inadmissible statements of witnesses Ex.DA./Ex.D.B. (recorded under section 161, Cr.P.C.) in support of the prosecution, therefore, the finding of guilty recorded by the learned Court cannot be accepted to be correct. Had he not acted upon this inadmissible evidence then the decision might have been different. Similarly the trial Court failed to give a finding of fact as laid down in Ahad Sher's case by the Supreme Court that there existed circumstances (he did not mention any) which gave rise to the "reasonable suspicion" that he possessed the grenade not for any lawful object. We have already stated that the very possession/recovery of grenade from the appellant appears to us as doubtful and consequently we are of the view that the charge has not been brought home to the appellant beyond reasonable doubt.
9. In the result, we allow this appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith if not required to be detained in any other case.