1. ' SHOUKAT HUSSAIN ZUBEDI, J.--- The appellants Zahoorul Islam son of Muslim, Iman Ali son of Shooro, and Habib son of Sohag alongwith others were tried by the learned Judge, Special Court-III, Suppression of Terrorist Activities, Karachi, who by his judgment, dated 7-3-1992 convicted the appellants for the offences under section 4/5 of the Explosive Substances Act, 1908 and sentenced them to suffer R.I. For 7 years. The property or the appellants was also ordered to be forfeited in favour of the Government under section 5-A of the Explosive Substances Act, 1908. By the same judgment, co-accused Anwar and Abdul Salam were acquitted. The appellants have challenged their said conviction and sentence under this appeal.
2. ' The prosecution case is that on 8-8-19 , the appellants as well as two acquitted co-accused were in custody of the police in Crime No,584/91 of Police Station Gulshan-e-Iqbal, Karachi. S.I. Zafer Ali Shah who was posted at the Special Investigating Cell, District East, Karachi interrogated the accused in the course of which it was disclosed that local made bombs and pipe guns are available in the house of accused Habib. On receipt of such information, S.I. Zafer Ali Shah procured witnesses namely, Manzoor Ali and Muhammad Sheeraz so as to search the house of accused Habib. On the same day the house of the accused was searched at 00-15 hour in presence of the witnesses which resulted in the recovery of five local made bombs, one bomb of large size, four medium size bombs and two pipe guns, one of which was of .30 bone and another of .12 bore. The accused also disclosed that the articles in question were manufactured with the help of absconding accused Shahjehan and Wahid alias Bara. The articles thus recovered were secured under memo. Exh.8, which was duly attested by the Mushirs. S.I. Zafer Ali Shah prepared a statement under section 154, Cr.P.C. And forwarded the same to Police Station Gulshan-e-Iqbal for registration of the case. Accordingly, F.I.R. Crime No,590/91 was registered against the accused at Police Station Gulshan-e-Iqbal for offences under section 3/4 of Explosive Substances Act, 1908 and under section 13-E of Arms Ordinance, 1965.
3. ' The investigation of the case was taken up by S.I. Zafer Ali Shah himself. He recorded the statements of the witnesses and also obtained the necessary sanction for the prosecution of the case as Exh.13 which was issued by Government of Sindh dated 10-9-1991. He had also sent the explosive material for expert opinion, such report was received by him as Exh.14. After completing investigation he challaned the accused.
4. ' At the trial, the charge Exh.6 was framed against the accused for having committed offences under section 3/4 of the Explosive Substances Act, 1908, to which the appellants did not plead guilty and claimed to be tried. At the trial, the prosecution examined P.W.1 Mushir Muhammad Sheeraz and P.W.2 S.I. Zafer Ali Shah the Investigating Officer. Thereafter vide Exh.15, the prosecution closed its side. The statements of the appellants were recorded under section 342, Cr.P.C. As Exhs.18, 19 and
20. They have denied the prosecution allegations and claimed to be innocent. All the three appellants stated in their respective statements that they never led police party to Zia-ulHaq Colony and nor got recovered the incriminating articles. The appellants claimed to have been falsely implicated in this case and further stated that the said but from where these articles were recovered, does not belong to them. However, they did not wish to be examined on oath but they wanted to examine defence witnesses. The appellants examined D.W. Muhammad Zainul Abidin as Exh.23. D.W. Abdullah as Exh.24 and thereafter the defence side was also closed. At the conclusion of the trial, the appellants were convicted and sentenced by the trial Court, while the two co- accused namely; Anwar and Abdul Salam were acquitted.
5. ' We have heard Mr. Syed Saeed Hassan Zaidi, learned counsel for the appellants and Mr. Ashiq Raza Advocate for the State.
6. ' The learned counsel for the appellants raised the following points (1) that the alleged recovery of incriminating articles was made at the joint pointation of five accused persons and, therefore, it is a case of joint recovery from a joint house as such the evidence of recovery cannot be used against the appellants. (2) That the report of the Expert Exh.14 is a photocopy not admissible in evidence in the absence of the original and the Expert has not been examined. (3) That on the same evidence, two of the accused namely; Anwar and Abdul Salam have been acquitted and on the evidence of the same set of witnesses, the present appellants cannot be convicted in the absence of independent corroboration.
7. ' On the other hand, the learned counsel for the State Mr. Ashiq Raza supported the impugned judgment and stated that explosive material was recovered on the pointation of the appellants and there was no reason for the police to falsely implicate the appellants in this case or to foist the incriminating articles. He has, therefore, pressed for the dismissal of this appeal.
8. ' We have gone through the evidence available on record and we have also considered the points raised by the learned counsel. It is an admitted position that the recovery in this case was made on 8-8-1991 under memo. Exh.8. The Mashirnama of recovery clearly indicates that all the five accused persons who were in custody of the police, were duly handcuffed and taken by the Investigating Officer, the five accused led the police to a one-room Katcha house situated in Zia-ul-Haq Colony near Naddi at Gulshan-e-Iqbal, which is supposed to be joint house of the accused. In the cross- examination of the Investigating Officer, S.I. Zafer Ali Shah, he has admitted that the said room had no permanent door and that it had a temporary door without any lock. It will thus appear that it is the prosecution case that the room from where the incriminating articles were recovered was jointly owned by the five accused, the said room was jointly pointed out by them and therefore, for all practical purposes this is a case of joint recovery. It may be mentioned that in cases of joint recovery, the individual liability of an accused cannot be established and therefore, no reliance can be placed on such joint recovery evidence. The appellants have been convicted under section 4/5 of the Explosive Substances Act, 1908. Section 4 is divided in two parts. Clause (a) of section 4 is not applicable to this case while clause (b) of section 4 speaks of "Possession". Again, section 5 of the Act also refers to "Possession" or "under his control". It will thus appear that the prosecution has to prima facie established the individual liability of an accused.
9. ' The word "Possession" appearing in the Explosive Substances Act, 1908 was interpreted by the Supreme Court in the case of State v. Qazi Pervez PLD 1978 SC 64.
10. The Supreme Court considered and interpreted the meaning of the word "Possession" in Explosive Substances Act, 1908 and their Lordships observed that the word "Possession" as given in the Explosives Act refers to only possession with guilty knowledge that the articles possessed is an incriminating one. In this case, the explosive substance was recovered from a room which was shared by three persons and there was no evidence to prove as to who brought the incriminating material in the room and who was aware of it. As such the Supreme Court held that the prosecution failed to prove its case under section 5 of the Act.
11. In the present case also the position is the same, it is the prosecution case that the room from where the incriminating articles were recovered is jointly owned by the appellants and the two acquitted co-accused. There is no evidence to whom this room belongs, there is no evidence who brought the incriminating articles in the said room and who out of the five accused was aware of it.
12. This ground alone is sufficient to hold that the prosecution has failed to prove its case against the appellants.
13. ' The other material point in this case is that the so-called report of the Expert Exh.14 is a photocopy and not the original. There is no explanation on the record why the original was not produced.
14. Moreover, this report has been issued by one Moinuddin in respect of whom, Investigating Officer stated that he is a person associated with the bomb disposal squad, Civil Defence Directorate, Karachi. Suffice to say, the report issued by the said department is not admissible in evidence without examining the Expert, as such a report is not covered by section 510, Cr.P.C. There is no explanation as to why the Expert as aforesaid was not examined as a witness in this case.
15. ' It may be mentioned that the co-accused Anwar and Abdul Salam have been acquitted by the trial Court keeping in view the evidence of their defence witnesses. The trial Court lost sight of the fact that the evidence against the present appellants as well as two acquitted co-accused was the same. No reasons have been given as to why the witnesses have been partly believed against the appellants and disbelieved against the two acquitted accused.
16. ' In the light of our above discussion we are of the view that the impugned judgment is not sustainable. Accordingly we allow this appeal and set aside the conviction and sentence awarded to the appellants. By a short order, dated 13-12-1993 this appeal was allowed and the appellants were ordered to be released if not required in any other case, these are the reasons for the same.