1. ' SYED HAIDER ALI PIRZADA, J.---These two appeals arise out of a common judgment dated 10-6- 1991 passed by the Presiding Officer, Special Court, III (Suppression of Terrorist Activities) Act, 1975.
2. Criminal Appeal No,171 of 1991 has been preferred by Raees Baig (hereinafter Baig) and Criminal Appeal No,176 of 1991 has been preferred by Muhammad Ali (hereinafter Ali). Both of them were convicted as follows:--- ' Baig was convicted under section 6 of Explosive Substances Act (VI of 1908) and sentenced to suffer rigorous imprisonment for ten years and forfeiture of his property in favour of Government. Ali was convicted under sections 4 and 5 of the Explosive Substances Act and sentenced to rigorous imprisonment for ten years and forfeiture of his property in favour of Government.
3. ' The short facts are these. On 14-4-1990, at 00-15 hours there was a sound of an explosion in one of the rooms of House No,496, Sector 'L', near Post Office, Orangi Town. The house belongs to Ahmed Baig, father of appellant Baig. On enquiry from P.W. Ahmed Baig, he informed that friends of Raees, namely, appellant All and acquitted accused Salahuddin were making a bomb of local make themselves and the gun powder and sulpher exploded due to high explosive in the hands of appellant All and piece of finger of Ali was cut down and appellant All and acquitted accused Salahuddin ran away. He produced F.I.R. Exh.18. He arrested appellant Baig, prepared Mashirnama of arrest Exh.4. He prepared site inspection Memo. Exh.4. He arrested appellant All and prepared Mashirnama of arrest Exh.7 and prepared memo. Of injury Exh.8. He arrested acquitted accused Salahuddin and prepared Mashirnama of arrest Exh.9. He also secured blood stained earth and sealed in tin box and secured piece of finger and blood-stained clothes of appellant Baig. P.W.4 Javed Ibrahim, Sub-Inspector Police, Bomb Disposal Squad reached the place of occurrence. He got the articles for making local bomb, in a tin which were sulpher, gun powder, nails, stones, ropes and also wood powder etc. During inspection, it appeared to him that some local bomb was being prepared at the place of occurrence which had exploded in the hands of maker, due to excess quantity of its material, as a result of which the wooden strips of sofa set lying in the room.
4. However, the bomb was not so powerful. A thumb of unknown person was lying, which was cut at the place of occurrence. He secured the articles and prepared Mashirnama Exh.12. He prepared his report Exh.13. He also produced final report Exh.14. P.W.7 Ghulam Fareed, S.H.O. Orangi Town reached at the spot ai about 12-30 a.m. He saw in room No,2 at upper portion of house No,446 that there were gun powder and sulpher powder, rope and iron nails lying in tin box and some of it were scattered. There was settee which was torn and damaged and was burnt and broken furniture was there in the room and spots of blood were on the floor, it was fresh blood. One piece of finger of a human being was lying on the floor. He informed the bomb disposal squad.
5. ' After necessary investigation the appellants alongwith Salahuddin were sent up before the Presiding Officer, Special Court (Suppression of Terrorist Activities), Karachi. A formal charge was framed against them to which they pleaded not guilty.
6. ' At the trial, prosecution examined P.W.1 Maqsood Afsar Khan (Exh.2). He acted as Mashir of Wardat alongwith Badar Hussain Qazi. Police prepared Mashirnama of Wardat in his presence. According to him there were marks of blood on the walls of first floor, stones and ropes were lying. Blood was secured from the place. He produced Mashirnama of Wardat (Exh.3). He also produced clothes of appellant Baig which were secured in his presence under memo. Of seizure (Exh.4).
7. ' P.W.2 Yaqoob (Exh.5) was S.I. Orangi. He stated that S.H.O. Arrested appellant Baig in his presence.
8. He produced Mashirnama of arrest (Exh.6). He further stated that appellant Ali was also arrested in his presence vide Mashirnama of arrest which was produced as Exh.7. He further stated that S.H.O.
9. Prepared Mashirnama of injuries of appellant All in his presence and he produced the same as Exh.8. He further stated that S.H.O. Arrested the acquitted accused Salahuddin in his presence as per Mashirnama of arrest (Exh.9).
10. ' P.W.3 Dr. Hasan Akhtar (Exh.10) stated that at 1-30 a.m. Two persons awoke him and then after collecting his bag went with them, they took him to a house, which was Katcha having tin roof. One person was lying injured and his hand was wrapped. He examined the injured and gave him injection and advised them to take him to hospital as his condition was serious. He identified appellant Ali in Court.
11. ' P.W.4 aved Ebrahim Exh.11 was .I. Olice Bomb isposal Squad n 14-4-1990 He went to the house of Ahmed Baig on 14-4-1990 at 1-30 a.m. He stated that it was first floor, in one room one broken sofa was lying, one finger of human being was there, there was sulpher powder, ropes, nails and gun powder. He secured all the articles to Bomb Disposal Centre for examination and report. He produced reports (Exhs.13 & 14). He stated that all the articles secured through Exh.14 are used for preparation of hand bomb.
12. ' P.W.5 Ahmed Baig (Exh.15) is father of appellant Baig and is owner of house No,446, Block L, Orangi Town. He stated that on 14-4-1990, at 11-30 in the night he heard noise of blast from his house. He further stated that military people came and took him up. He stated that Mashirnama (Exh.3) bears his signature but its contents are not correct as police took his signature on plain paper.
13. ' P.W.6 Dr. Hamid Ali (Exh.16) was MLO Sindh Government Qatter Hospital on 15-4-1990. He stated that on that day police referred injured and found the following injuries on his person:-- {{TABLE}} L/wound on Ring finger 4 cm x 1-1/2 cm x MD L/wound on little finger 1 cm x 1/2 cm x MD L/wound on middle finger 2 cm x 1/4 cm x MD L/wound on left hand b/w thumb and index finger 5 cm x MD 1/4 cm x {{TABLE}}
(5) L/wound on middle finger of Rt. Hand. Anterior aspect of finger missing, bone sticking out 5 cm x 2 cm x ?
14. Multiple small abrasion on abdomen and face. The above injuries appeared to ave been aused by omb blast The njuries were of fresh He stated that the above injuries appeared to have been caused by and the injuries ere old or 4 to hours. e produced he provisional edical certificate ssucd by him as Exh.16/A.Bomb blast. He produced Provisional Medical Certificate (Exh.16/A), X-Ray.
15. Report (Exh.16/B), final certificate (Exh.16/C), letter issued to DM as Exh.16/D and the report of Prof. Anatomy DMC as Exh.16/E. To a suggestion in cross-examination he replied that "it is not possible that the injuries on the person of injured Muhammad Ali were caused due to blast of gas stone".
16. ' P.W.7 Ghulam Farid (Exh.17) was working as S.H.O. Orangi Town on 14-4-1990. He stated that he received information on telephone from Captain from Aiwan-e-Ijtihad that a bomb exploded near Post Office Orangi Town in residential building. He stated that he reached the spot at about 12-30 a.m. He saw in house No,446, Block 2, in room No,2 of the house at upper portion that gun powder, sulpher powder, rope and iron nails were lying in a tin box and some of it was scattered. There was a settee which was torn and damaged and was burnt. He also found broken furniture and spots of blood on the floor and it was fresh. He also found one finger of a human being which was lying on the floor. He further stated that he informed at once to the bomb disposal squad and P.W. S.I. Javed came there and prepared inspection memo. (Exh.12). He lodged F.I.R. (Exh.18). He arrested appellants Baig and All and also acquitted accused Salahuddin. He obtained sanction of Provincial Government under section 7 of Explosive Substances Act.
17. ' P.W.8 Muhammad Akram (Exh.19) was posted as A.S.I. Organi Town Police Station on 16-4-1990. He stated that acquitted accused Salahuddin was arrested in his presence and Mashirnama of arrest (Exh.9) was prepared in his presence. He produced the same as Exh.9 which bears his signature.
18. ' P.W.9 Bashir Ahmad (Exh.20) was a neighbour. He stated that he heard noice of something more than a cracker.
19. P.W.10 Liaquat Ali (Exh.21) was posted on 14-4-1990 as S.I. In Police Station Orangi Town. He stated that he was Duty Officer from 8-00 p.m. To 8-00 a.m. He stated that at about 11-55 p.m. S.H.O.
20. Ghulam Fareed arrested appellant Muhammad Ali. He stated that Exh.7 bears his signature. He further states that he collected certificate issued by Dr. Ahmed Ali. He produced certificate as (Exh.22). He further stated that the certificate is in respect of appellant Muhammad Ali.
21. ' After close of the prosecution case the statements of the appellant and acquitted accused were recorded under section 342, Cr.P.C. In which they denied the allegations.
22. ' Appellant Raees stated that he was present at his house on the aforementioned date and time but not with Muhammad Ali and Muhammad Salahuddin. He further stated that he was sleeping at his house and was not making bombs etc. He denied that he was in possession of explosive substances, which exploded and caused damage to the room of his house, also. caused injuries to Muhammad Ali. He denied that the articles were secured from the house. He stated that he was falsley implicated in the case.
23. ' Appellant Muhammad Ali stated that his both thumbs are in their original and natural position. He denied the allegation that he was in possession of explosive substance, which exploded and caused damage to the room of appellant Raees Baig and also caused injuries to him at his thumb.
24. ' The appellant and acquitted accused also examined themselved on oath wherein they denied that they were in possession of explosive substance and it exploded when they were preparing the bomb.
25. ' After taking into consideration, the evidence produced by the prosecution and the accused persons, the learned Presiding Officer was pleased to convict the appellants and acquitted Muhammad Salahuddin as described above, and the present appeals are directed against the above judgment of conviction.
26. ' Mr. Umer Farooq, the learned counsel appearing on behalf of appellant Raees has urged that on the facts found no case has been made out against the appellant Raees.
27. ' On the other hand Mr. Zaheer Qureshi, the learned counsel appearing for the State has submitted that the case has been made out against the appellant Raees.
28. ' In order to appreciate the contention of the learned counsel appearing in this case, it is advantageous to reproduce section 6 of the Act which reads: "6. Punishment of abettors.---Any person who by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner whatsoever, procures, counsels, aids, abets, or is accessory to, the commission of any offence under this Act shall be punished with the punishment provided for the offence."
29. ' The above section provides that any person who, inter alia, by the supply of materials procures, counsels, aids, abets or is accessory to the commission of any offence, shall be punished with the punishment provided for the offence. We take it that the intention to procure, counsel, aid, abet or to be accessory to the commission of the offence are necessary ingredients of the offence under.
30. Section 6 of the Act and ordinarily it is the primary intention of the accused that must be taken into consideration in determining his guilt.
31. ' It is to be noted that not one of these prosecution witnesses is in a position to depose that the room on first floor of the house exclusively belongs to appellant Raees. On the contrary perusal of evidence on the record would show that Ahmed Baig father of the appellant is owner of the house.
32. Taking into consideration all these circumstances we are of opinion that appellant Raees cannot be convicted of an offence under section 6, Explosive Substances Act, even assuming that he provided the room on first floor to appellant Ali and at that time he suspected that the appellant All and acquitted accused' might use the room for illeged purposes. We consequently must acquit appellant Raees.
33. ' The appellant Ali was convicted under sections 4 and 5 of the Act. The prosecution have examined ten witnesses in support of its case. It is to be noted that none of these prosecution witnesses is in a position to depose as to how the appellant Ali, met with the accident which resulted in his finger being blown off. There is thus no eye-witness of the actual occurrence. It has been sought to supply this deficiency by putting in the mouth of certain prosecution witnesses which go to incriminate appellant Ali. Thus, P.W.5 Ahmed Baig has deposed that Muhammad Ali was injured in the blast. It is significant to note that P.W.7 Ghulam Fareed, S.H.O. Orangi Town searched the room even before the appellant Ali had been charged with any offence under the Explosive Substances Act or Pakistan Penal Code.
34. ' There is no evidence on the record to show that appellant Raees and All belong to any revolutionary gang whose cult is the preparation of bombs. There is not a shred of evidence on record worth the name to prove that the appellant All was making any explosive substance or intentionally had in his possession or under his control any explsoive substance under circumstances which would give rise to a reasonable suspicion that he did not have them in his possession for any lawful purpose.
35. ' Let us first consider the conviction under sections 4 and 5 of the Act. The sections read as follows:- -- "4 Any person who unlawfully and maliciously (a) does any act with intent to cause by an explsoive substance, or conspires to cause by an explosive substance, an explosion in (Pakistan) of a nature likely to endanger life or to cause serious injury to property; or
(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 therof 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 imprisonment for life or any shorter term which shall not be less than seven years."
36. "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 imprisonment for a term which may extended to fourteen years."
37. The prosecution has utterly failed to adduce positive evidence that the appellant Ali was actually making a bomb or had explosive substance in his possession under the circumstances such as to give rise to a reasonable belief that he had them in his possession and under his control for no lawful purpose.
38. ' In order to bring home the offence under section 5 of the Act, the prosecution has to prove: (i) that the substance in question is explosive substance: (ii) that the accused makes or knowingly has in his possession or under his control any explosive substance, and (iii) that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object.
39. ' On a consideration of the evidence of the Inspector Police Bomb Disposal Centre and other evidence the Presiding Officer, Special Court has found that the substances in question were explosive substances within the definition of expression. This finding is not based on the correct appreciation of the evidence on record for the following reasons:---
(1) The articles were not secured in the presence of any Mashir. The recovery is not in accordance with provisions of section 103, Cr.P.C.
(2) The possession within the meaning of section 5 of the Act means conscious possession. The substances were not in large quantities.
40. ' The appellants have cited English decision R. v. Hallam (1957) AER 665 in which it has been observed:-- "We think that the clear meaning of the section is that the person must not only knowingly have in his possession the substance but must know that it is an explosive substance. The section says he must knowingly have in his possession an explosive substance, therefore, it does seem that it is an ingredient in the offence that he knew it was an explosive substance."
41. ' The learned counsel cited before us the following cases:---
(1) State v. Kazi Perveez Iqbal and another PLD 1978 SC 64 Samiuddin, Kazi Pervez and Tayab were tried with Tayab's brother Nadir Ali and two others under sections 5 and 6 of the Explosive Substances Act, 1908. As there was no evidence whatsoever against Nadir Ali and the last two other accused, they were acquitted, but Samiuddin, Kazi Pervez and Tayab were convicted under section 5 of the Act and sentenced to 5 years' R.I. Each and a fine of Rs,2,000 each or in default one year R.I.
42. Samiuddin, Kazi Pervez and Tayab challenged the conviction and sentence against them in appeals in the Sindh and Balochistan High Court and by its judgment, a Division Bench allowed the appeals of Kazi Pervez and Tayyab and dismissed Samiuddin's appeal. Samiuddin filed petition for leave to appeal which was admitted. It was held: "As the Act does not define the words 'possession' and 'control', they must be given their ordinary meanings, therefore, the ingredients of an offence under the section are firstly that the accused must be proved to be in possession of an explosive substance, and secondly that it must be proved that the accused is aware that the substance in his possession is an explosive substance."
43. ' It was further held: "I am aware that the words 'possession' and 'control' are words of wide import, and the word "possession" especially is not free from ambiguity. Thus, for example, a landlord is in constructive possession of a house leased by him to his tenant. But this does not mean that he has any possession or control over his tenant's furniture. Again a person may be in possession of goods by right of ownership or under a contract of bailment, . And a bailee, who has a lien over the goods bailed to him may be entitled to resist the bailor's claim for possession, but this does not mean that he is in possession of the goods bailed to him for all purposes. This is because the meaning of possession must depend upon the context in which the word is used."
44. ' Again it was held: "With respect this is not the law. According to Halsbury's Laws of England, Third Edition Volume 28: 'a licensee is a person who had permission to enter premises where without such permission his presence would be unlawful '. Similarly Jowitt in his Dictionary of English Law defines a licence as 'a permission given by one man to another to do some act which without such permission it would be unlawful for him to do'. Jowitt further observes: 'A licence passes no interest'. I agree with this dictum. As a licence passes no interest, Kazi Pervez's permission to Samiuddin did not confer on Samiuddin any. Right whatsoever to goods which did not belong to him, therefore, he was neither in possession nor in control of the cardboard box, and in my humble opinion, his conviction is based on an erroneous view of the liability of bare licensee under the law."
2. In Misal Khan v. The State (1983 PCr.LJ 1628). a Division Bench of this Court held: "It may be pointed out that the use of the words 'reasonable suspicion' in the above section 5, has provided an objective criterion and has exlcuded the possibility of pressing into service above provision for an imaginary or unfounded suspicion. We may also observe that in certain circumstances mere possession or control of an explosive article may raise a reasonable suspicion that the possession or control is not for a lawful object. If a person employed as an accounts clerk in a Government department is found in possession/control of 10 hand bombs/plastic bombs at his residence. In such a case, the possession/control of the above bombs itself may furnish reasonable suspicion as to attract above section 5. Nor in the instant case section 8 of Act of 1975 is attracted for the reasons already discussed hereinabove in paras. 6 to 9, namely, that the recovery of the gunpowder from the appellant Misal Khan is shrouded with doubts and, therefore, the initial burden under above section 8 has not been discharged by the prosecution."
45. ' It was also held: "There cannot be two opinions that in order to attract section 5 of Act, 1908 the prosecution has to prove two things, namely (i) that the accused person makes or has in his possession or under his control any explosive substance, (ii) 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. Furthermore, that in order to attract section 8 of Act of 1975 i.e, the Suppression of Terrorist Activities (Special Courts) Act, 1975, the prosecution is to prove either (i) that the accused person is found to be in possession of or to have under his control any article or thing which is capable of being used for or in connection with, the commission of any of the offences mentioned in the Schedule to the Act or (ii) that the accused person was apprehended in such circumstances, which tend to raise a reasonable suspicion that he had committed such offence."
3. In Abdul Waheed v. The State 1991 PCr.LJ 224 it was held that prosecution evidence was not sufficient for conviction of accused particularly when co-accused had already been acquitted by trial Court on the same evidence.
46. ' With respect, the above decisions lay the correct legal position. But the question is whether in this case appellant All knew that the substances in question were explosive substances. The knowledge whether a particular substance is an explosive substance depends on different circumstances and varies from person to person. In the instant case there is no evidence on record that appellant Ali had been dealing with substance in question for a long time. The Court below, therefore, was not right in holding that an offence under section 5 of the Act was committed.
47. ' There is, in our opinion, no evidence on the record to support the conclusion of the learned Presiding Officer that the appellant Ali was preparing a bomb of a high sensitive natrue which suddenly exploded and led to the detection of the crime of which he has been convicted. This question really begs the whole question and places upon the appellant that he was not making a bomb, and that he did not have explosive substance in his possession, for an unlawful purpose.
48. For the reasons given above we hold that the appellants are not guilty of the offences charged against them. We accordingly allow these appeals, set aside conviction and sentences passed upon the appellants Races Baig and Muhammad Ali and acquit them of the offences charged.
49. They were by a short order directed to be released forthwith if not required in any other case.
50. ' The above are the reasons for the short order dated 3-10-1991 allowing the appeals on conclusion of the arguments.