MUHAMMAD MUNIR KHAN, J.--- This Criminal Appeal No.851 of 1990 arises from the judgment of Presiding Officer, Special Court (Suppression of Terrorist Activities) Sargodha, whereby he, on 16-10- 1990 convicted Muhammad, Hashim, appellant, under section 4-B of the Explosive Substances Act, 1908 and sentenced him to seven years' R.I. The benefit of the provision of section 382-B, Cr.P.C.
Was also given to him.
2. The charge against the appellant was of keeping one hand-grenade on 19-5-1990 which was recovered from the bag carried by him while travelling in a Wagon. He denied the charge and claimed to be tried.
3. To prove its case, the prosecution produced four witnesses. Ghulam Jaffar, P.W.1, had prepared the formal F.I.R. Exh.PA./1. Muhammad Safdar, P.W.2, was/is Bomb Disposal Technician. He had examined the hand-grenade and found it to be serviceable and explosive substance and was dangerous to life and property. Ijaz Ahmad, Constable, P.W.3 and Rafi Ullah Khan S.I. P.W.4, are the recovery witnesses Rafi Ullah Khan, P.W.4, stated that on 19-5-1990 when a Coach arrived there from Mianwali side, they stopped it for checking. Muhammad Hashim appellant came out of the Coach. On search, he was carrying a bag with him, wherefrom hand-grenade P.1 was recovered and was taken into possession vide memo. Exh.P.C. He was not having any permit or licence to keep hand-grenade with him. Ijaz Ahmad, P.W.3, has supported the statement made by Rafi Ullah Khan S.I.
4. When examined under section 342, Cr.P.C. The appellant denied the recovery of the hand- grenade. He raised the plea of false implication stating that:-- "On the day of the recovery, I was travelling in a bus when the same was stopped at Police Station Wan Bhachran. Many a person were also travelling in the said bus. 6 or 7 persons and myself were detained by the police at Police Station Wan Bhachran and subsequently hand---grenade P.1 was planted on me. I have been falsely involved in this case:"
He did not give evidence on oath in disproof of the charge against him.
5. Believing the prosecution case and disbelieving the plea of false implication raised by the appellant, the trial Court has convicted and sentenced the appellant as stated above. Frankly conceding the recovery of hand-grenade from the appellant, the learned counsel has questioned the nature of offence. He was of the view that no case punishable under section 4-B of the Explosive Substances Act, 1908, was made out. Instead the offence committed by the appellant would fall under section 5 of the Explosive Substances Act, 1908. No. One has appeared for the State.
6. We have considered the submission made by the learned counsel for the appellant with care.
We feel persuaded to agree with him. The relevant provisions of the Explosive Substances Act, 1908 may be reproduced advantageously:--- Section 4-B. "makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in Pakistan or to enable any other person by means thereof to endanger life or cause serious injury to property in Pakistan: shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished with transportation for a term which may extend to twenty years, to which fine may be added, or with imprisonment for a term which may extend to seven years, to which fine may be added."
Section 5. Punishment for making or possessing explosives under suspicious circumstances. Any person who makes or knowingly has in his possession or under his control any 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, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable with transportation for a term which may extend to fourteen years to which fine may be added, or with imprisonment for a term which may extend to five years, to which fine may be added.
Since there is nothing on record with regard to the intention of the appellant to use the hand- grenade for the purpose stated in section 4-B, so his conviction under this section cannot sustain.
Instead the act of keeping hand-grenade in a bag at the time of recovery falls within the purview of section 5 of the Explosive Substances Act, 1908.
8. Pursuant to the above discussion, the conviction of the appellant under section 4-B of the Explosive Substances Act, 1908 is set aside, instead he is convicted under section 5 of the Explosive Substances Act, 1908 and sentenced to two years' R.I. With this modification, the appeal is dismissed.
SA./M-3218/L