1. ' MUHAMMAD ASLAM ARAIN, J.--- This appeal under section 7 of the Suppression of Terrorist Activities Act, 1975 is directed against the judgment, dated 26-4-1992 passed by Special Court-I (S.TA.), Karachi, whereby appellant, who was tried for an offence under section 4/5 of Explosive Substances Act, 1908 was convicted and sentenced to undergo R.I. For 10 years and further his movable and immovable property was forfeited in favour of the Government.
2. The brief facts of the case are that on 9-10-1991, on the basis of statement of S.I. Ghulam Asghar Khan, F.I.R. No,205/1991 was registered at Police Station Orangi Town Extension, Karachi, under section 4/5 of Explosive Substances Act. The contents of the F.I.R. Reveal that S.I. Ghulam Asghar Khan of S.I.C. West was the duty Officer at Police Station Extension. While he was petrolling the area alongwith his subordinate staff, he received spy information that in Raees Amrohi Colony, Sector 11- 1/2, a person by name Imam Din was keeping in his Jhuggi a big quantity of explosive subtance. He took two private persons Hussain alias Rustam and Yaseen and at 9-30 p.m. Knocked at the House No,3, Block 4 of Raees Amrohi Colony, appellant, came out and gave his name as Imam Din. From one room of his house six bags containing 25 Kgs. Of Potassium Chloride each total quantity 150 Kgs was recovered. He was asked to produce licence, if any, for the said explosive substances, but appellant could not produce the same and was arrested in presence of said Mashirs and the explosive substance was seized and taken into custody. After usual investigation and obtaining sanction under section 7 of the Explosive Substances Act, 1908 from the Government of Sindh, he was sent up before the Special Court to stand trial for the said offence.
2. ' Charge under section 4/5 of the Explosive Substances Act was read over to appellant on 12-1-1992 to which he pleaded not guilty and claimed to be tried.
3. ' Prosecution examined P.W.1 Hussain, who acted as a Mashir and through him produced memo. Of recovery, seizure and arrest Exh.4. P.W.2 Ghulam Asghar Khan (Exh.5) S.I.P., then posted at S.I.C. West Karachi. Other witnesses in the case were given up. Through P.W. Ghulam Asghar Khan prosecution produced 154, Cr.P.C. Statement (Exh.6), F.I.R. (Exh.7), report of the Inspector of Explosive Karachi (Exh.8), Sanction Letter dated 4-12-1992 issued by the Secretary to Government of Sindh, Home Department (Exh.9) and a Mashirnama in respect of other articles in the house of appellant (Exh.10).
4. ' Statement of appellant under section 342 of Cr.P.C. Was recorded in which he denied the charge against him and stated that he was arrested on 7-10-1991 in early morning and not on 9-10-1991, as alleged. Further, that he had enmity with the police informer who had earlier threatened him with dire consequences. He produced two newspapers, "Evening Special" and daily, "Jang" (D.1) and (0.2) to show that the news about his arrest appeared in the said newspapers and he was shown to have been arrested on 7-10-1991. Appellant also examined D.W.1 Mehboob Khan (Exh.D.1) and D.W.2 Mashir Ahmed Khan (Exh.D.2). Both these witnesses stated that in their presence appellant was arrested at Fajar prayer time on 7-10-1991 and was taken by the police to the police station.
5. Both these witnesses alongwith other Mohallah people went to the police station to enquire about the reasons why appellant was arrested when they came to know that appellant was booked in bomb cases. On conclusion of trial, the learned trial Court convicted the appellant and sentenced him as stated above.
6. ' Mr. M. Ilyas Khan, learned Advocate for the appellant, has contended that mere possession of potassium chloride would not be an offence under subsection (1) or subsection (2) of section 4 of the Act; that the charge does not mention that appellant possessed substance which endangered human life, that seizure memo. Shows that the purpose of keeping potassium chloride was to prepare Patakhas, that the report of the Expert could not have been brought on record through S.I.
7. And the examination of the Expert was necessary; that the Mashirs associated for the search, arrest and recovery were not respectable inhabitants of the locality and there is violation of the provisions of section 103 of Cr.P.C.; and lastly that the defence evidence has been discarded by the trial Court without assigning any cogent reasons.
8. ' Mr. AA. Muhammadally, learned Additional A.-G. Has supported the conviction and has contended that the statement of defence witness is not in conformity with the version of the appellant given by him in his statement under section 342 of Cr.P.C. Further that no animus is shown against the police official who registered the F.I.R., investigated the case and sent up the challan.
9. ' We have gone through the impugned judgment, the evidence in the case and the case-law referred by the learned counsel. Section 4 of the Explosive Substances Act, 1908 reads as under:-- "4. Any person who unlawfully and maliciously--
(a) does any act with intent to cause by an explosive 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 an 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 imprisonment for life or any shorter term which shall not be less than seven years."
10. ' Section 5 of the Act provides the punishment for making and possessing explosive substance under suspicious circumstances and it reads as under:- "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 extend to fourteen years."
11. ' Subsection (b) of section 4 of the Act provides that only such person would be liable, who 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). It, therefore, follows that before proving charge under section 4/5 of the Explosive Substances Act, the prosecution had to show that the person who possessed such substance intended by means thereof to endanger life or cause serious injury to property and also that he conspires to cause by an explosive substance an explosion of a nature likely to endanger life or serious injury to property. Unless these ingredients of section 4 of the Act are brought home, the alleged offence cannot be said to have been established. In the case of Mishal Khan v. The State 1983 P Cr. L J 1628 the accused was found to be in possession of gun powder weighing 10 Kgs., contained in a tin and safety fuse and charcoal in a tin. He was convicted by the trial Court and in appeal before a D.B. Of this Court, it was held that simpliciter possession of gun powder would not attract section 5 of the Act VI of 1908 without further proof of fact that accused was found in possession in such circumstances that give rise to reasonable suspicions that he did not have it in his possession or control for a lawful object. Since those circumstances were not proved, this Court acquitted the appellant. In State v. Javed and another 1988 P Cr. L J 1697 a learned Single Judge of this Court observed as under:- "All the circumstances indicate that the object of accused in using Patakha on that evening was to enjoy the fun. Nothing can be farther from reality than to say that the motive of these boys meddling with the Patakhas was motivated to unlawfully and maliciously cause injury to any property or to endanger life of anyone. No case is made out against the accused and they are acquitted."
12. ' In Gulab v. The State 1985 P Cr. L J 1617 conviction of appellant under section 5 of the Explosive Substances Act was set aside and it was held as under:-- "It is evident that the report of the Expert in so many clear words with regard to the nature of the incriminating articles was not brought on the record. Secondly, the question whether the Captain was the expert as contemplated by section 510, Cr.P.C. Or had been notified by the Government merited consideration. The same and similar questions came up for consideration in Muhammad Ashraf v. The State PLD 1959 Pesh. 176 and it was observed that where the Government had by a notification declared the Inspector of explosives to be a Chemical Examiner to the Government for the purpose of section 510, Cr.P.C. It was held that the Inspector of explosives was a Chemical Examiner to the Government and his report would be admitted in any enquiry or trial under the Court. It follows that the impugned order suffers from illegal infirmities and is not maintainable in the eyes of law."
13. ' In The State v. Azeem Khan PLD 1987 Kar. 583 it was held by this Court as under:-- "It is obvious that in order to succeed, the prosecution must establish not merely the possession of the explosive substance, but must also show that the accused persons were carrying the 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'."
14. ' The report of the Inspector of Explosives (Exh.8) shows that the potassium chloride is used in the manufacture of explosive in combination of other substances and it falls within the definition of explosive substance under section 2 of the Act. The other component to be used with potassium chloride was not secured from the possession of the appellant. In view of this report, it is clear that mere possession of potassium chloride and without there being evidence that it was by itself an explosive substance or that it was intended to be used for an explosion of a nature likely to endanger life or to cause serious injury to property would not be enough to bring home the guilt of an accused so possessing potassium chloride.
15. ' The two witnesses associated by the police are admittedly resident of a place about 10 miles from the house of the appellant. Their presence at the scene of offence at the time the raid was proposed to be conducted is also not explained. The requirement of section 1U3 of Cr.P.C. Has not been strictly complied with inasmuch as house of the appellant was surrounded by other houses but no inhabitant/respectable person of the locality was associated during the search and arrest.
16. We therefore, doubt if the police actually associated the two witnesses as has been stated.
17. ' Two newspapers were filed by the appellant showing his arrest on 7-10-1991 and this was supported by the evidence of two defence witnesses, who corroborated appellant's version that he was arrested at Fajr prayer time by the police, put in a Van and taken to police station. The learned trial Court has not given any reasons why the newspaper reports and the defence evidence is rejected. In our view the prosecution had failed to prove the case against the accused and the conviction recorded on the basis of scanty evidence could not be sustained. In our view, the examination of the Expert in such cases was also necessary which has not been done.
18. For the aforesaid reasons, we accept this appeal, set aside the conviction and sentence and direct the acquittal of the accused. By a short order dated 21-10-1992 we had allowed the appeal and directed appellant's acquittal forthwith, if not required in any other case, and these are the reasons for the same.