ABDUL HAFEEZ CHEEMA, J.---Muhammad Rashid alias Sheeda Meo, son of Hurmat Khan, resident of village Pathanke, P.S. Hadyara, was convicted under section 5 of the Explosive Substances Act, 1908 and sentenced to ten years' R.I. And his entire property was also confiscated to the State by Mr. Muhammad Aslam Shami, Presiding Officer, Special Court for Suppression of Terrorist Activities, Lahore, vide his judgment dated 24-11-1991. The convict has appealed against his conviction and sentence.
2. The facts which led to the prosecution of the appellant, briefly, are that he was under arrest with Hadyara Police in case F.I.R. No. 47/90 and during his interrogation by Javed Asghar, S.I. (P.W.4), the appellant disclosed that he was in possession of four bomb timers which he had concealed in a big iron container lying in his house. A raiding party consisting of Mushtaq H.C. (P.W.2), Afzaal A.S.I.
(not produced) and other police officials, was formulated. The recovery was effected by Javed Asghar (P.W.4) and the timers Exh. P.1/1-4 were taken into possession by him vide memo. Exh. PC attested by Afzaal and Mushtaq (P.W.2).
3. After recovery the timers were sent to the Bomb Disposal Unit, Lodge Road, Lahore, for examination and expert opinion. The devices were examined by Agha Asghar A.I, Platoon Commander, Bomb Disposal, Civil Defence Emergency Service STA, Lahore who reported as hereunder: "The parcel containing four Quartz watches made by CASIO-JAPAN and one 1.5 volt dry battery cell were examined and it was found that Quartz watches have been converted into a gadget which can be used as a timing device for various appliances. It can also be used as a self---triggering device for exploding any kind of explosive at a pre-set time."
Sanction of the competent authority (Exh. PF) under section 7 of the Explosive Substances Act, 1908 was also procured by the police and after completion of the investigation, challan was submitted to the Court.
4. To prove the recovery, prosecution examined Javed Asghar S.I. (P.W.4), Mushtaq Ahmed HC (P.W.2) and Khalid Javed (P.W.3) whereas Muhammad Abbas (P.W.1) was put up as formal witness of the F.I.R.
5. When examined under section 342, Cr.P.C. The appellant belied the prosecution version and claimed that he was innocent and had been involved due to enmity with one Aslam, his erstwhile business partner who owned a sum of Rs.70,000 and on account of his friendship with the police, in order to avoid payment of this amount, had managed his involvement in the case. The appellant did not appear as his own witness under section 340, Cr.P.C. Whereas examined two D.Ws. Namely, Allah Din and Rehman of his village who knew him well. They testified that the appellant was innocent and had been involved falsely due to enmity with aforesaid Aslam. They further deposed that they appeared alongwith other respectables before the S.P. Concerned and brought to his notice the true facts and pleaded his innocence, nevertheless no notice was taken on their assertions.
6. It has been canvassed before us by the learned counsel for the appellant that the so-called timers cannot come under the definition of explosive substance as they are merely Casio watches and nothing else and the report submitted by the so-called Expert was exaggerated. Had he been put as P.W., his veracity could have been tested properly.
7. We have ourselves examined these items, they are indeed Casio Japan clocks with a dry battery cell having small pieces of electric wires fastened to it and, prima facie, it appears that they cannot be used as explosive devices. Section 5 of Explosive Substances Act, 1908 is the provision under which prosecution seeks to punish the appellant. It shortly reads as follows:--- "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."
The prosecution has thus utterly failed to establish the circumstances which could have given rise or reasonable suspicion that the instruments were meant for unlawful use. Prosecution only relies upon the expert's report which ex facie, appears doubtful. Even otherwise the Expert's report was not put to the accused during his examination under section 342, Cr.P.C. And as such no weight can be attached to this document. On account of this rather weighty criticism levelled by the learned counsel for the appellant, it appears doubtful indeed that these watches were meant to be used as bomb explosive devices. In these circumstances, we are obliged to give benefit of doubt to the appellant. The conviction and sentence awarded by the Special Court is set aside and the appellant is acquitted. He shall be released forthwith, if not required to be detained in any other case.