1. DORAH PATEL, J.-Samiuddin the appellant in Criminal Appeal No. 1 I I-R/77, Kazi Pervea, the respondent in Criminal Appeal No. 49/77 and Tsysb. The respondent in Criminal Appeal No. 50/77, were tried with Tayab's brother Nalir All' and two others under sections 5 and 6 of the Explosives Substances Act, 1908 by the Special Court sat up under the Suppression of Terrorists Activities (Special Court) Ordinance XVIII of 1974. As there was no evidence whatsoever against Nadir A.I and the two other accused they were acquitted, but Samiuddia, Kazi Pervez and Tayab were convicted under section 5 of the Explosive Substances .Pct and sentenced to five year] R, I. Each rind a fine of Rs. 2,000 each or in default one year's R.
1. Samiuddin, Kazi Pervez rod Tayab challenged the conviction and sentence passed against them in appeals in the Sind & Baluchistan High Court and by its judgment dated 6-2-1976, a Division Bench of the High Court allowed the appeal of Kazi Pervez and Tayab but it dismissed Samiuddin's appeal. Samiuddin, therefore, riled a petition for leave in this Court which was admitted in order to examine the question whether Samiuddin's care was distinguishable from that of Kazi Pervez and Tayab. And, as the Sind Government had filed petitions for leave against the acquittal of Kazi Pervez and Tayab, leave was granted in both these cases also.
2. We have heard these three appeals together and as we are concerned only with the prosecution case against Samiuddin, 1Cazi Perves and Tayab, it is sufficient to state here that the charge against them was that they wore in possession of and/or bad under their control high explosives which were stored in a cardboard box In Room No. 41-A in the P. I. A. Colony, Karachi Airport. This colony appear.t to be a hostel for the male employees of the P.1. A and presumably because Kazi Pervez was a Steward in the Airline, be was in possession of Room No. 47-A. The furniture in the room consisted of two beds, a cupboard and a table, and the box of explosives was found under one of these two beds. The room was a very small room, being only 10'x 12', but Kazi Pervez shared it with his friends Samiuddin and Tayab. The prosecution did not attempt to give evidence about the precise terms under which Samiuddin and Tayab ware sharing the room, but, as submitted by Mr. Usman Ghani, the prosecution has proved that Samiuddin and Tayab were occupying this room and had free access to it. However, Tayab also lived in other places also and for example he was not in the room on the night before the occurrence. However, the prosecution has proved that his belongings were in the room even on 39-11-1974.
3. Kazi Pervez was on duty on 29-11-1974, therefore, he and Samiuddin bad got up early, as Kazi Peeves had to be err the flight to Muscat, and the prosecution case is that because Samiuddin was staying with him as his guest, Kazi Pervez had expected him to prepare tea or breakfast for him (the prosecution case in this respect is not clear). But as Samluddin got up late and did not prepare either the tea or the breakfast which he was expected to prepare. Kazi Pervez was angry with him and there was "a verbal altercation" between them. Hidayat All, a neighbour, came out of his room on hearing the verbal altercation. He saw that Kazi Pervez had a aticx with him and was threatening to beat Samiuddin with it, so he (the witness) beat a hasty retreat Another person who heard the altercation was Muhammad Sadle Shah and he supported Hidayat A.I's evidence. Now Muhammad Sadiq Shah not only claimed to have "put in long years of service in the army. But this witness was also a security guard fn the P. I. A. And claimed to live in the some hostel, yet he did not lift a finger to atop what might have turned into an ugly incident. The witness, however, tried to explain his conduct on the plea that he was going to collect his salary either from the P.
1. A. Or from Habib Bank. But as this altercation between Kazi Pervez and Samiuddin took place at about 6-30 a.m. It is obvious that the witness had a fertile imagination. Be this as it may, Muhammad Sadiq Shah then said that after collecting his salary, he returned to the hostel and his way to his room was pas! Room No 37-A. It was about 8-00 a.m., and as the door of Room No. 47-A was open; he entered it and asked Samiuddin about the cause of his quarrel with Kazi Parvez. The witness then said "Samiuddin told me that Parvez had quarrelled with him because he had not been able to give him breakfast early in the morning. I sat on a Charpai and wanted to light my cigarette. Samiuddin prevented me from lighting the cigarette, and I asked him whether there was any special reason for which he was preventing me from lighting the cigarette. Samiuddin stated that there was some special reason. While leaving I jokingly asked Samiuddin if he had kept a bomb in the room, to which he did not make any reply."
4. Despite his suspicion about the possibility of there being a bomb in Room No. 47-A. Muhammad Sadiq Shah returned to his room. Then, after pondering over the matter, he claims to have gone at 9-00 a.m., to Nazir Ahmad Khan, a Senior Security Supervisor of the P.
1. A., and informed him of his suspicion. Nazir Ahmad Khan told him to return to the hostel with Ghazanfar A.I, a Junior Security Supervisor of the P. I. A., and keep guard on Room No. 4 -A, until he arrived. Accordingly, he wont with Ghasanfar A.I to the hostel and as soon as Nasir Abmad Khan arrived. They went to Room No. 47-A and a cardboard box containing high explosives including detonators was secured from the room in the presence of Samiuddin.
5. As the learned Judges of the High Court have been impressed by the prosecution case about what Samiuddin said at the time of this recovery, I have to observe here that Muhammad Sadiq Shah, Nazir Ahmad Khan and Ghazanfar A.I have given different versions of what Samiuddin Said.
6. According to Muhammad Sadiq Shah : "Naseer Ahmad asked Samiuddin as to what had been stored in the room to which Samiuddin replied that there was nothing I thereafter told Samiuddin to state why he had prevented me from lighting the cigarette. Samiuddin thereafter pointed out to a cardboard box lying underneath the Charpai. "
7. Next according to Nadir Ahmad Khan, as soon as he arrived at Room No. 47-A, he knocked at the door and Samiuddin opened it. This witness then said, "I asked Samiuddin as to what things, were with him, to which he replied that he know nothing. Immediately on Samiuddin's reply Muhammad Sadiq Shah asked Samiuddia as to where were those things which Samiuddin had talked about to him (Sadiq Shah) in the morning. Samiuddin pointed out to a cardboard box lying under the Charpai in the room". This was the box which contained high explosives.
8. Thirdly, according to Ghazanfar A.I, as soon as Nazir Ahmed Khan arrived he astced- "Samiuddin as (to) where were the explosives. He told Samiuddin that information in regard to explosives has been given to him by Sadiq Shah. Samiuddln pointed out to a cardboard box similar to such boxes as are used for keeping shoes, which were lying underneath a Charpai lying in the room."
9. Finally, as I will show, the prosecution had a fourth version of the discovery of the High Explosives from Room No. 47-A, but before I refer to it, I would observe here that the prosecution should have produced evidence to .Show how the High Explosives had been brought into Room No. 47-A.
10. Its case was that Tayab had brought the High Explosives Into the room on a date which was not known, and in order to implicate Tayab. It examine! One Azasur Rahman who claimed to be a friend of Tayab. This witness stated that he and Tayab had been from their days in the Allama Iqbal College in Karachi and that he was the General Secretary of one of the Trade Unions in Hussain Textile Mill in 1974 arid as this Trade Union was contesting the elections for the election of the Collective Bargaining Agent of the Mill's Workmen, Tayab had offered to support him in the elections and according to the witness he "offered me explosives which he stated were like, Patai;ha". The witness also stated that Tayab was a student leader. At the highest this evidence might show that Tayab had access to explosives but this cannot possibly be proved that he had brought the cardboard bore into the room.
11. The only other evidence relevant to the arguments advanced is the confession attributed to Samiuddin. According to the prosecution, Samiuddin was produced in De,.-ember 1974 before Mr. Ziaul Islam, the Sub. Divisional Magistrate for the Malir Area of Karachi because he wanted to record his confession and Mr. Ziaul Islam recorded Samiuddin's confession. Samiuddin said in this confession that about three months before the discovery of the explosives from the room, as he was preparing tea on the heater in the room, Tayab had pointed to the cupboard and warned him (Samiuddin) that no cigarette or "lighted articles should be thrown towards that side. I did not ask him as to why". Samiuddin also said that Tayab sometimes took his belongings from the room and went and lived with others, and, in this connection 1 may observe here that according to Abdul YVabab, a cousin of Tayab, Tayab was living with him at the time of the occurrence. But reverting to Samiuddin's confession, ha further said that one day when he and Kazi Pervea were cleaning the room, Kazi Pervez found a cardboard box "usually used for packing shoes" wrapped in a newspaper. He picked up the cardboard box and told Samiuddin that if Tayab came in his absence, ho should tell Tayab to take away the cardboard box as well as his belongings. So when Tayab came, Samiuddin told him to take away all his belongings. But Tayab only took away his Charpai and left the cardboard box. Next, according to this confession. Tayab had been trying to obtain employment in the P.
1. A. But when he was told by a Stenographer of the P. 1 A. That leis application had been rejected, he had threatened to "put a bomb in the office and blow it up, he said he was a Pakhtoon chat he would make Pakhtoonistan and he raised slogan of Wali Khan Zinda Bad". Finally, according to this confession Samiuddin had an altercation with Kazi Pervez on the mornirg of 29-11-1974, therefore, he shouted back at Kazi Pervez and on hearing him neighbours had come into the room. One of these neighbours saw the box lying under the bed and stayed on after Kasi Pervea had left. Then according to the con--fession that neighbour--- "picked up the box which was torn from a corner and smelt it, after that he opened the box completely. There were pencil like thick sticks of some black material in the box he smell them and said that this was dangerous stuff. After that he went away and I entered the bath for a bath, when I came out that same man was present in the room with other two people. On their enquiry I told them that this room belong to Parwaiz Iqbal and I was his friend, they searched the room and recovered the box. I learnt later that they were from P.
1. A. Security, almost immediately thereafter the Police also reached there."
12. As Samiuddin knew Muhammad Sadiq Shah, it is clear from this passage of the confession that Muhammad Sadiq Shah was not present at the time of the recovery of the explosives. I, therefore, observed that this was the fourth version put up by the prosecution about the precise manner of the recovery.
13. The Special Court hold, on an examination of Mr. Ziaul Islam's evidence that he had not recorded the confession in accordance with the statutory requirements of the law. This finding is correct. But the Special Court questioned Samiuddin under section 342 of the Criminal Procedure Code about this confession, and as he said that the portions to which I have referred were correct. The Special Court treated the '"confession" as a part of his statement to the Court. I agree with this finding also.
14. However for convenience, I will refer to the statement recorded by Mr. Zia ul Islam as a confession.
15. The Special Court then observed that Samiuddin's statement in his confession that Tayab had warned him not to throw lighted articles towards the cardboard box was evidence to show that Samiuddin was aware of the contents of the box. The Special Court also treated Samiuddin's alleged admonition to Muhammad Sadiq Shah about not smoking as further proof of Samiuddin's knowledge of the contents of the cardboard box. With respect, I find it difficult to understand the inferences --thus drawn by the Special Court, but, even on the footing that these two pieces of evidence were sufficient to lead to the inference that Samiuddin was aware that the box contained High Explosives, as he was only a licensee in Kazi Pervez's Room, the real question for determination before the Court was whether in these circumstances, Samiuddin could be said to have been in possession or control of the cardboard box. On this question the' Special Court observed "In cases under Explosives Act. a person in whose house the offending articles lie has the "control" over them, despite the fact that the articles may belong to some one else, for the person in the house, having knowledge of explosives has control over the explosives. In such cases even doctrine of exclusive possession is out of place."
16. Accordingly, the Special Court convicted Samiuddin.
17. As to the other accused. Tayab had denied that he lived in Kazi Pervez's Room. 'the Special Court held that this denial was false, and I agree with this finding. But the prosecution case was that Tayab had brought the High Explosives into the room. It only examined Azizur Rehman in order to prove this allegation, and I have referred to his evidence because, as I said the Special Court was impressed by it. Next, as the Special Court was of the view that Samiuddin's confession was inculpatory. It relied on the statement in it that Tayab had warned Samiuddin not to throw lighted articles in the direction of the cardboard box. Then as to Kazi--Perves, there was no evidence even to allow that he had any knowledge of the contents of the cardboard box, but the Special Court relied on the statement in Samiuddin's confession that Kazi Pervez had told him to tell Tayab to remove the box, and, according to Special Court, Kazi Pervez had ordered the removal of the box only because be was aware of its contents. But, once again in the absence of evidence to show that Tayab had brought the box into Room No. 47-A and in the absence of evidence to show that Kazi--Pervez bad control or possession of the box, haw could either of these accused be found guilty under section 5 of the Explosives Substances Act? Tile Special Court merely observed "Whoever had kept the explosives in the room must in the circumstances of this case have informed the other inmates of the room in regard to presence of the explosives. That is necessary because of the very nature of the explosives, which could explode by application of heat or even the spark from a match-box. It is inconceivable that the person keeping tae explosives in the room would conceal the fact or deposit of explosives from 'he other inmates of the room . . . . ."
18. Accordinaly, the Court convicted Tayab and Kazi Pervez also.
19. The learned Judges of the High Court held that the learned Judge of the Special Court had erred in using Samiuddin's confession against Kazi Pervez and Tayab because the confession was exculpatory, not inculpatory. The learned Judges of the High Court were further of the view that if Kaz! Pervez had been aware of the contents of the cardboard box "he would then keep the box concealed rather than leave it open (in his room) in that fashion. In the circumstances, it is not possible to infer conscious possession of the explosives within the meaning of section 5 of the Explosives Substances Act". Accordingly, they acquitted Kazi Pervez. As to Tayab'a appeal apart from Samiuddin's confession the only evidence against him was that of Azizur Rehman and as the learned Judges do not appear to have been impressed by this evidence they held that the prosecution had failed to prove Tayab's guilt and alloyed his appeal also.
20. However, the learned Judges were impressed by the evidence of Muhammad Sadiq Shah, Ghaaanfar A.I and Nasir Ahmad Khan about the recovery of the explosives in Samiuddin's presence and it would appear that because they were impressed by this evidence they had no hesitation in accepting Muhammad Sadiq Shah's statement that when he had returned at 8-00 a.m., after collecting his salary either from P. I. A. Or from the Habib Bank, Samiuddin had warned him not to smoke. Now although the witness admitted in his examination-in-chief that Samiuddin had not given .Any reasons for his admonition to the witness about smoking the learned Judges observed that what Samiuddin "stated to Sadiq Shah which aroused his suspicion and thereafter what he gave to Nazir Ahmad and Sadiq Shah after the box, can lead to no other conclusion but that he had knowledge of the contents of the box". Accordingly, as Samiuddin had admitted that he was in occupation of the room the learned Judges rejected as false his statement that he did not know the contents of the cardboard box and dismissed his appeal. But Samiuddin had been convicted for being in possession or control of explosives, which were found in that cardboard box. Now he could not possibly have been convicted on this charge merely because he was aware of the contents of that box, and on the other hand from the evidence to which I have referred the prosecution had made no attempt to prove that he had been in possession or control of that box.
21. However, the -learned Judges of the High Court observed :-- "The box was not concealed but lying under the cot which cannot, by itself, raise suspicion as to its contents. There is also no evidence as to when the box was brought and by whom, on this point even the accusation is silent . . . . . . . . . . . . . . . . . . . It could have been smuggled in by Samiuddin himself and hurriedly kept under the cot, for otherwise it is not believable that any person having knowledge of the explosives would lie on a cot, under which is kept a box containing explosives, for that is against the instinct of self- preservation. The probability is that if Kazi Pervez Iqbal had knowledge of the contents, he would then keep the box concealed rather than leave it open in that fashion."
22. With the utmost respect there is not an iota of evidence to show that Samiuddin had smuggled the box into the room, nor was any question in this respect put to him by the Special Court. Secondly, in my humble opinion, if the instinct of self-preservation would have led Kazi Pervez to "keep the box concealed rather than leave it open", the instinct of self-preservation would have led Samiuddin also to keep the box concealed. 'tee had, therefore, granted leave to examine Mr. Sangash's contention that Sumiuddin's case was not distinguishable from that of Kazi Pervez and Tayab.
23. Additionally, in view of the evidence of the nature of the explosives, I am constrained to observe that if they had exploded the room would have been blown to smithereens, But according to the prosecution, these High Explosives had been in the room for several months, and tea at least, if not breakfast, had been prepared regularly in this room which was hardly B more than a cubicle. How then was it that there was no explosion during this long period ? The answer to this question has been given by the two experts examined by the prosecution and Patch Muhammad, for example, stated ;- "Normally, smoking of cigarette near the box containing the explosives in this case, may not result in an explosion, but, if a spark from a cigarette touches a detonator, an explosion would be likely."
24. Now if we are to assume that Samiuddin had smuggled this box into room, we must credit him with this elementary knowledge of the manner in which his explosives could have exploded therefore, the instinct of self--- preservation would have led him to pack the slabs of T. N. T. And the detonators separately and keep them as far apart in the room as possible. Or if, for any Mason, this was not possible, the instinct of self-preservation would have led him to stay as little in the room as possible, especially $s this would have reduced the chances of his being apprehended with his dangerous possessions. But the slabs of T. N. 'P. And the detonators were packed in the same cardboard box, and although the other two occupant had left the room. Samiuddin was still lingering in the room at the tine o his arrest, although he should have beta out searching for employment, therefore, in my humble opinion, the circumstantial evidence is inconsistent both with the hypothesis that Samiuddin had smuggled the cardboard box into the room and the hypothesis that he was aware of the contents of that box.
25. Mr. Usman Ghani however submitted that there was a concurrent finding against Samiuddin on this question and as this concurrent finding was based on evidence, we could not interfere with it while Mr. Bangash submitted that both the Courts had misread the evidence. In view of these submissions. T would recall here that Muhammad Sadiq Shah claimed to have met Samiuddin twice before his arrest, first at about 6-30 a m., and again at 8-00 a.m. Samiuddin admitted only the first meeting, whilst the alleged conversation about not smoking Lad taken place at the second meeting. The prosecution case hinges on this meeting, and as the burden of proving that it had taken place was, in the circumstances, heavily on the prosecution, Mr. Bangash invited us to reject the prosecution evidence as false, because it was a case of word against word. Mr. Bangash'a submission is not sound. A conviction can be based on the evidence of a solitary witness, if he is a person of unimpeachable integrity, or if evidence is corroborated by other evidence, and these were the questions which the Courts should have examined. Further in examining them the Courts should have borne in mind Muhammad Sadiq Shah's explanation for his second meeting with Samiuddins early in the morning.
26. Muhammad Sadiq shah- explanation was that he had gone to collect his salary from the P. I. A., therefore, he had his first meeting with Samiuddin at 6-30 a.m. On his way to the P.
1. A. To collect his salary and he had met Samiuddin for the second time at 8-00, a m. After collecting his salary from the P. I. A. This explanation was false. Even Mr. Usman Ghani had to admit that it was false but he attempted to persuade us that the witness's false statement was on account of a lapse of memory. The difficulty in the way of accepting this submission is that the witness persisted In saying in his cross-examination that he bad met Samiuddin at 8-00 a.m. After collecting his salary from the P. I. A. It was only after prolonged cross-examination that he confessed the truth and admitted that he had collected his salary from the bank. Now the reason why he persisted In trying to deceive the Courts is obvious. No bank opens in Karachi before 9-00 a.m, as was admitted by the witness, and if he had said that he bad met Samiuddin after collecting his salary from the bank, his dishonesty would have stood exposed Immediately. Therefore, the witness deliberately invented a false story in order to persuade the Court to believe that he had met Samiuddin for the second time. Additionally Mr. Hangash drew our attention to another circumstance which is relevant to the question of the witness's veracity. Neither the alleged admonition by Samiuddin to the witness about not smoking, nor the further improvement made by the witness in his cross-examination, find, any place in the P. I. R. Lodged by Nazir Ahmad Khan, who, I would recall here, was a Security Officer of the P. I. A. To these circumstances, it is clear that the evidence of Muhammad Sadiq Shah was not fit to be accepted without corroboration and the fact that he was not a hostile witness is irrelevant because he was not a witness of truth.
27. This aspect of the case appears to have escaped the attention of the trial Court, but the learned Judges of the High Court were of the view that Muhammad Sadiq Shahs evidence eras corroborated by that of Nazir Ahmad Khan and Ghszanfar A.I. With respect, both Naziv Ahmad Khan and Ghazanfar A.I gave evidence about the alleged conversation with Samiuddin at the time when the explosives were first detected. Therefore, their evidence does not throw any light on the question whether Muhammad Sadiq Shah had really met Samiuddin at 8.00 a.m.. As claimed by him. Secondly. As I have shown, the evidence of Ghaasnfar All, Nazir Ahmad Khan and Muhammad Sadiq Shah about their alleged conversation with Samiuddin is discrepant. In these circumstances.
28. In my humble opinion. The evidence of Ghazanfar A.I and Nazir Ahmad Khan does not furnish any corroboration of Muhammod Sadiq Shah's evidence. Hut this evidence is unfortunately the basis of Samiuddm's conviction.
29. However, even if we believe Muhammad Sadiq Shah's claim that he ha been told by Samiuddin not to smoke, does it prove Samiuddin's gull: fl under section 3 of the Explosives Substances Act? A man might have many reasons for objecting to smoking. He may be educated enough to reap e that smoking is the road to the cancer ward. He may be allergic to smoking or he may fine it unpleasant in a small room. Or if he is a guest in somebody else's premises, his host may have objections to smoking. Now Samiuddin was only a licensee in a room which was hardly more than a cubicle, and even according to the prosecution, there were no ashtrays in that room. In these circumstances, at the highest, the sinister meaning sought to be placed by the prosecution on the alleged request not to smoke was one of possible constructions that could be placed on this request, and as there was no evidence whatever to support this construction of the request, in my humble opinion, both the Courts erred in reading a sinister meaning into a perfectly innocuous request.
30. However, even if it is assumed that Samiuddin knew about the explosive in the cardboard boa, the charge against him was of being in possession or control of explosives, and as it was not the prosecution case that the box or its contents belonged to him, and as there is no evidence of any act on Samiuddin's part asserting his possession or control over the explosives. Box could Samiuddin the convicted for being in possession or control of the explosives? The learned Judges of the High Court were aware of this difficulty, and attempted t3 overcome it by observing that Samiuddin might have smuggled the box into the room. Hut there is no evidence in support of this observation and it was never the prosecution case that Samiuddin had smuggled the cardboard box into the room. Additionally. The High Court observed that the explosives "could have been smuggled" by Samiuddin. This is not a definite finding against Samiuddin, yet the High Court, none the less. Dismissed his appeal. The conclusion thus reached implies that the High Court agreed with the Special Court's view about Samiuddin's guilt but not about the guilt of Tayab and Kazi Pervez. Now the Special Court's view was that- "the explosives in the case were in possession and under the control of Tayab which possession and control he exercised jointly with co-accused."
31. The only reason given by the Special Court for holding that Samiuddin and Kaai Perves were in joint possession and control of a box belonging to Tayab was that they were aware of its contents and the Special Court observed in this connection that it was "inconceivable that the person keeping the explosives in the room would conceal the fact of deposit of explosives from the other inmates of the room". With respect, I am unable to agree with this conjecture. In any event, even if Tayab bad confided in Samiuddin, the question before the Court was how Samiuddin could acquire possession of the explosives merely because he had been informed that a box which did not belong to him contained explosives. After all, even if I know that my neighbour has concealed a valuable painting in his house, I do not acquire possession or control over that painting merely because I know where it is concealed. With respect the view taken by the Special Court does not bear analysis, unless of course it is supported by the definition of the words "possession" and "control" in the Explosives Substances Act or unless the law be that persons living in a house or a room are automatically In possession and control of one another's belongings merely because they are living together.
32. Taking first the Explosives Substances Act, 1908, only section 5 is relevant. It reads : "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."
33. As the Act does not define the words "possession" and "control", they must be given their ordinary meaning, therefore the ingredients of an offence under the section are firstly that the succeed must he proved to be in p possession of an explosives substance and secondly that it must be proved that the accused Is aware that the substance in his possession is an explosive substance.
34. As observed by Lord Goddard, C. J., in Regina v. Hallam f 1) "We think the ordinary prima jade construction of the section is that (tae accused) must knowingly have in his possession an explosive substance, and that must be that he knows he has as substance which is in fact explosive and, as I says that can be inferred from the facts of case".
35. I am aware that the words "possession" and "control" acre 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 leis 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, arid a bailee who has a lien over the goods bailed to hire may be entitled to resist the bailer---s claim for possession, but this does not mean that he is ia possession of the goods bailed to him for all purposes. This is because the meaning of possession must depend upon the context 9n which the word is used. Thus in Towers 8t Co. L to v.
36. Gray ((1961) 2 Q g 351 ) the appellant had been convicted under section 2 of the English Merchandise Marks Act, 1887. This section rendered illegal the possession of the articles specified in the section and the appellant was convicted for being in possession of frazta chicken, one of the articles specified in the section. The appellant challenged its conviction tin the ground that the frozen chicken belonged to it had been stored at the relevant time with the respondent who had a lien over the articles stored with him. Although the respondent as bailee would have been entitled to protect his possession against the appellant, Lord Parker. C. J., held that it was the appellant who was in possession of the frozen chicken within the meaning of section 2 of the Merchandise Marks Act and not the bailee. I respectfully agree with this judgment and I would emphasize that the mental element is an essential element of posses--sion in criminal statutes.
37. The case of Regina v. Hussain ((1969) 2 Q B -567) is a striking illustration of this principle. Hcusain was a Seaman employed in a Pakistani Ship which had docked in England. The possession of cannabis is an extremely serious offence in England and any person in possession of cannabis is liable to imprisonment. Hussain admitted that cannabis had been concealed in hi: caoin. His defence was that the package had been concealed in his cabins by his Superior Officegs and Widgory. 1,. J. (ss he then was) held that Hu%ssin's conviction for the possession of cannabis was illegal, because the cannabis had been put in Hussain's cabin against his wishes.
38. I would now examine, in the light of these judgments, the question of the liability of parsons for explosives found in a houseroom shared by them. It would be convenient to examine first Saniuddin's case and I will assume that he knew of the contents of the cardboard boa.
39. The first question fox determination is of the precise terms on which Kazi Pervez bad permitted Samiuddin and Tayab to share his room with him. Aed ov the evidence the only finding can be that both Sarliuddin and Tayab wore bare licensees. As bare licensees, they wore free to live in the room and keep their belongings in it, but this could not by iteit confer on them any right oar control over each other's belongings, or indeed con any thing which did not belong to them, in the absence of evidence to tit contrary. But as the prosecution did not produce evidence to the contrary, the real point for determination in Samiuddin's appeal is how he could b;, said to have been in possession or control of articles which did not belong to him. As I explained, on the whole, it does appear that the High Court a..3reed with the Special Court's reasons for convicting Samiuddin and the Special Court's view eras that Samiuddin was in possession of the explosives because h knew about them and shared the room with Teyab and Kazi Porvez. With respect, Samiuddin's knowledge of the contents of the cardboard he could not divest its possessor of his possession nor could Samiuddin acquit possession of the cardboard box merely because. He knew :hat it contained Therefore, having given anxious thought t 3 the judgments of the Courts` ` it seems to me that they convicted Samiuddin on the view that he was in possession of the explosives because they were stored in the room occupied by him. In other words, a bare licensee was hold to be in possession of goods not belonging to him because they were stored in the room occupied by him.
40. With respect, this is not the law. According to Halsbury (Lays of England, Third Edition, Volume 281 "a licensee is a person who has permission to enter premises where without such permission his presence would be unlawful". Similarly Jowitt in his Dictionary of English Law define 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" Jowit further observed "A licence passes no interest" I agree with this dictum.
41. A a licence possesses no laterest 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 licensees under the law.
42. I now turn to the case against Tayab, according to the prosecution, he had brought the Explosives into the room. As the Special Court accepted this plea, I will first assume that this view is correct. On this assumption, possession and control of the boa would remain with Tayab, in the absence of some evidence to show that he lead abandoned or parted with his possession or control. There is no such evidence and on to a contrary as he bad concealed the explosives in a box meant for packing shoes, it is clear that he intended to and had retained his control and possession of the explosives, and his guilt would stand proved on the assumption that he had brought the cardboard box into the room.
43. I now turn to the assumption that Tayab had smuggled the explosives into the Room No. 47-A. Tine prosecution did not attempt to produce evidence to show when and how Tayab had smuggled the explosives into the room although the P. I. A. Employed Security Guards for its Hostel. The Special Court was however of the view that Azisur Rehman's evidence was a link in the chain of evidence against Tayab, but the learned Judges of the High Court were not impressed by Azizur Kohman's evidence and did rest place any reliance on it. For the reasons which I have given, I agree with this view. In any event, The question is of the appreciation of evidence. And as it cannot reasonably be contended that the High Court (which was the first Appellate Court) had erred in law in interfering wide the Special Court's appreciation of evidence.. The prosecution has failed to prove the ingredients of section 5 of the Explosives Substances Act agair~%'~ this accused.
44. There remains for consideration the Provincial Government's appeal against Kazi Pervez's acquittal by the High Court and in support of the appeal. Mr. Usman Ghani relied on Samiuddin's statement in his confession that Kazi Pervez had asked him to tell Tayab to remove the cardboard box. Mr. Muhammad Hayat Junejo rightly submitted that this statement was not evident and eauld. At the highest, fall under section 30 of the Evidence Act. In any case, how can this ataterrent lead to the inference that Kazi Pervez was aware of the contents of a box which was a box for packing show?
45. According to Mr. Usman Ghani, Kazi Pervez could have ordered the removal of the box only because he knew of its contents. But, according ,to Samiuddin, Kazi Pervez had told him to tell Tayab to take away all his .Belongings, including the cardboard box, therefore, Kaai Pervez's direction to Samiuddin could also mean that Kazi Pervez was fed up of Ta fob and wanted to terminate his licence. Now, as even according to the prosecution. Tayab also lived in other places, I cannot read into Kazi Pervez's direction to Samiuddin the sinister meaning which Mr. Usman Ghani sought to place on it. But there is absolutely no other evidence against Kazl Perves.
46. Mr. Unman Ghani. However, relied on the fact that Room No. 47-A was in Kazi Perves's possession.
47. That is correct and the liability of the owner or occupier of premises for explosives stored in his premises may different from that of a licensee in the premises because the occupier of the premises would be in constructive possession of every thing lying in he premises. However this constructive possession does not by itself help the prosecution case, because the possession which falls within the mischief o section 5 of the Explosives Substances Act is not constructive possession but actual possession with the guilty knowledge that the article possessed is an incriminating article. Therefore, the prosecution case against Kazi Pervez would have required examination if there had been evidence to she that Kazi Pervez was aware of the contents of the cardboard box but as there is no such evidence, he had no cane to answer.
48. Mr. Usman Ghani then submitted that his submission was supported by a judgment of the Lahore High Court reported in Emperor v. Santa Xngh (AIR 1944 Lah. 339) whilst Mr. Muhammad Hayat Junejo submitted that the true ratio of this case supported his submissions. It is, therefore, necessary to examine this judgment in some detail.
49. The appellant was prosecuted both under section 5 of the Explosives Substances .Act and under section 20 of the Arms Act on the charge that he was in possession of explosives as well as a very large quantity of firearms. The firearms and explosives were found in the appellant's house and as his father, wife sad family also lived with hits, the appellant's plea inter alia was that the charge against him was not proved because he was only one of several occupants of the house in which the incriminating articles had been discovered. The trial Court accepted this plea and acquitted the appellant. This acquittal was challenged in an appeal in the Lahore High Court, which came up for hearing before a Division Bench of the High Court and in view of the conflict of authority on the meaning of the words "possession" and "control" in the relevant statute, the learned Judges of the Division Bench referred two questions to the Full Bench. The first question ryas whether sill the persons occupying a house are liable for the incriminating article in that house and the second questions was whether in such a situation the occupants of the house had to "account for the presence of the incriminating articles in their premises". After examining the judgments of the High Court, the learned Judges of the Full Bench held that constructive possession or control could not fall within the mischief of the Explosives Substances Act and they answered the questions referred to them as follows " I respectfully agree with these observations, that section 106, Evidence Act, cannot be used to strengthen the evidence for the prosecution. The prosecution must stand or fall on the evidence adduced by It and until a prima facie case is established by such evidence, the onus does not shift on to tire accused. More proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish prima facie the guilt of any particular person or all of them jointly. That being so, they cannot be called upon after such evidence to establish their innocence. They can only be called upon to do that when the evidence has established a prima faclr case against any one or more of then or all of them."
50. I respectfully agree with these observations which coincide with my own views on these questions.
51. The appeal was then heard by the Division Bench in the light of the answers given by the Full Bench, and Mr. Usman Ghani submitted that the judgment of the Division Bunch supported his submissions in all the three appeals before us, because the Division Bench had set aside the appellant's acquittal and convicted him under the Explosives Substances Act. The submission is not correct for more reasons than one. In the first place the question before the High Court was only of Santa Singh's liability and as he was the possessor of the house in which the explosives and firearms had been stored, it was not necessary for the High Court to examine the liability of the other members of his family, therefore, the judgment is irrelevant to the cases of Samiuddin and Tayab, the more so, as these two accused were mere licensees of Kazi Pervez. However, as submitted by Mr. Usman Ghani the judgment is relevant to the appeal against Kazi Perves's acquittal. As Kazi Peeves was in possession of Room No. 47-A, his position was similar to that of Santa Singh in the case cited. But, Santa Singh was convicted not merely because incriminating articles had been found in his house, but because, in the words of the learned Judge " an arms factory was in existence in Santa Singh's house. It is impossible to believe that such a large number of articles could have been planted in the house . . . . . . ---. Thus the appeal was allowed in view of the peculiar facts of the case, and as those facts are not clear from the judgment. I would observe here that if explosives arc illegally stored in a house in such quantities or in such manner that the person in possession of the house could not but be aware of their existence, then his failure to take any action about them would invite the inference that he had allowed them to remain in his house, because he had decided to keep them in his possession or control either exclusively or jointly with others. Therefore, the prosecution should have produced evidence to prove that Kazi Pervez was aware of the contents of the cardboard box, but as there is no such evidence, the prosecution has failed to prove its case under section 5 of the Explosives Substances Act, and, I respectfully agree with the view taken by the High Court.
52. There remains for consideration only one other point. As the cases Under appeal were tried under the Suppression of Terrorist Activities (Special Courts) Ordinance XVIII of 1974. The prosecution is entitled to rely on section 8 of this Ordinance. This section reads "Burden of proof.-Where any person accused of having committed a scheduled offence 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 such offence, or is appre--hended, in circumstances which tend to raise a reasonable suspicion that he had committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence."
53. The offence foe which Samiuddin, Kazi Pervez and Tayab were charged falls under clause (b) of the Schedule. But the section has to be construed strictly because it is a penal provision which reverses the most cherished principle of our jurisprudence namely I that the burden of proving the guilt of the accused is on the prosecution. I have therefore no doubt, and this was also the view of the High Court that this section is attracted only when the prosecution proves that the accused were in possession of the articles and things specified in the Schedule. The incriminating articles, in the instant case, were the explosives and as the prosecution has failed to prove that any of the accused had them in their possession or control this section also does not help the prosecution case.