' The accused in this case was sent up on 10-11-1976, by the S. H.
0., Garden Police Station, to stand trial under seetion 5 of the Explosive Substances Act, 1908.
Charge was framed against him on 7-12-1976 upon the allegations that on the 8th day of October 1976, at about 17-00 hours he was found in unlawful possession of one hand-grenade marked PCF- 1968-36 (M) WR-PCF-86.64-PCF-58 which he kept for some unlawful purpose. The said hand- grenade be bad kept knowingly in his possession and under his control and which being an explosive substance he was liable for the offence under section 5 of the Explosive Substances Act, 1908. The accused, however, pleaded not guilty and desired to be tried.
2. The prosecution story in short in the words of the S. H.
0. P. W. Akhtar Ahmad, who is also the first informant was, that, on that date Le. 8-.0.1976, he was posted as S. H.
0., Kalakot Police Station. He had information that some constable of the Police Department was selling hand-grenade at the Police headquarters. He, therefore, took with himself Latif Gabole and Hanif Brohi at about 7-30 a.m. And came to Jobli Cinema with that person to go and act as the purchaser of the hand-grenade, while he kept himself in hiding nearby. The spy gave a call in the name of Akram on which he saw the accused coming out of his quarter. The accused then went back and brought the hand-grenade from his quarter. The S. H.
0. Then rushed and arrested the accused and secured the hand-grenade from his bands. He prepared the mashirnama of the arrest and also of the seizing of the hand-grenade. Latif Gabole, the bogus purchaser and Hanif Brobi acted as mashirs. The S. H.
0. Then lodged the report of this offence at the Garden Police Station as the offence had taken place within the jurisdiction of that Police Station. He then obtained the expert opinion from the Explosive Inspector aad also the necessary sanction from the Government and then completing the investigation challaned the accused in this Court.
3. At the trial, the prosecution in support of the case examined P. W. 1 Latif Gabole, P. W. 2 Fateh Muhammad Platoon Commander Bomb Disposal, Karachi, as expert, P. W. 3 Hanif Brohi and P. W. 4 Akhtar Ahmed S. H.
0. The Investigating Officer. Exh. 343 was produced as the opinion of the Platoon Commander which shows that the hand-grenade was alive and was a high explosive capable of causing considerable damage to life and property when primed and used and have immediate killing range within the reach of 21 yards although its danger area extended to 300 yards and Exh. 5-A was produced as the consent of the Government for prosecution as required under section 7 of the xplosive Substances Act, 1908.
4. In his statement under section 3,42,Cr. P. C. The accused denied the allegations as false stating that he had not invited any purchasers for the hand-grenade nor did he transact the sale as alleged on 8-10-1976. According to him he was implicated on account of enmity of one H. C. Iqbal No, 1734. He stated that he had not been arrested in the circumstances as alleged by the S. H.
0. Akhtar Ahmad but that he had been called to the Police Station and arrested there at the instance of one Ibrar Constable, who was a friend of H. C. Iqbal. The two witnesses Latif Gabole and Hanif Brohi were the friends of the S. H.
0. He further stated "the allegations against me are false. I was arrested on 7-10-1976. I was acting as the Instructor of the recruits. I had given the report to C. D. I. (Chief Drill Inspector), this report was in writing. I had given this report at 8-00 p.m. The name of the C. D. I. Is Anwar. In his presence Constable Ibrar came and called me and took me to the Incharge. The C. D. I. Told Mrsr to inform the Incharge that I was coming only after completing my duty. Ibrar continued to wait. After finishing my work I accompanied. When I reached the Kalakot Police Station the Incharge accused me of selling the band-grenade at 4.00 p.m. I denied the allegation. He also said that the hand- grenade that I had sold had bf en received by him through the person to whom I sold. I told him to call the purchaser in my presence so that he may repeat the acquisition, but the S. H.
0. Told me that could not be done. Thereafter he started me beating and my ear got injured and still it is injured. He ordered that my children also be arrested. He also searched my house at the instance of Ibrar at 1.00 a.m. I was present in hand-cuffs. My ornaments and cash were also taken by him. He did not call any person from the neighbourhood. The door of my house is still broken. He also insulted my wife. I am innocent and I have been implicated. Justice may be done."
' He examined two defence witnesses Anwar Khan, Chief Drill Instructor and Matloob Hussain, Line Officer. The first witness also produced the register of attendance and pointed out certain entries relating to the accused.
5. The point for consideration in this case is, whether on the 8th day of October 1976, the accused was found in actual possession of the said hand-grenade which possession was unlawful within the meaning of section 5 of the Explosive Substances Act, 1908. Section 5 of the Explosive Substances Act reads as under :- "Section 5.-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 to 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."
' It is obvious that once this possession is established the burden of proving the possession to be lawful and innocent would shift to the accused. Even this burden is shifted under section 8 of the Suppression of Terrorist Activities (Special Court Act, 1975). The initial burden of proving the actual possession however, is still on the prosecution and the same requires to be specifically considered in this case. According to the evidence adduced the first information report Exh. 5-B, gives the time of occurrence as 5-00 p.m. On 8-10-1976, and the offence was registered within 35 minutes at the Garden Police Station by the complainant S. H.
0. Akhtar Ahmad Siddiqui, who at that time was the S. H.
0., Kalakot Police Station. This report was registered after he had secured the accused as well as the incriminating article i,e, hand-grenade. It is stated in the first report that he had secured the hand-grenade from the possession of the accused under instructions of the superior officer as he had received spy information. Indeed this is what he had admitted in his deposition in Court also.
Ho stated that he while kept himself in hiding ho was able to see that the accused came out of his Quarter No, 5/99 at 5.00 p.m. And on coming out he spoke to the witnesses Latif Gabole and Hanif Brohi and thereafter went inside the quarter. After few minutes thereafter he brought from inside his quarter the hand-grenade which was packed in a round cardboard box. As soon as he was passing it over to the purchaser he immediately rushed over there and secured the hand.Grenade from the possession of the accused. This appears to be inconsistent with what he said in the first information report and also the mashirnama Exh. 2-A. According to him the possession of the hand-grenade, therefore, remained in the hands of the accused and he had reached and seized the same before the accused had parted with the possession of the hand-grenade. This possession was witnessed by Latif Gabole and Hanif Brohi.
6. The learned counsel for the accused has pointed out that as the point of possession is a most crucial point and is to be specifically proved. The evidence of the Sub-Inspector referred to above should be scrutinized in the background of what the two other witnesses have said. According to P.
W. 1 Latif Gabole, the informant gave a call at the door of the accused, he thereafter entered the house and brought the accused out. At that time the accused was holding a box of tin in his hands, which was of black colour. The accused had told them that he had brought the bomb and offer,. d to sell the same. The witness bad already been told the price as being Rs, 1,100 before he entered the quarter of the accused. However, the S. H.
0. Bad secured the box from the accused while it was still in his hands. The evidence of this witness shows that the informant had gone inside the quarter of the accused to bring him out and had disclosed the price to the witnesses before so going in, his evidence is not to the effect that a call was given from outside, on which the accused came out along with the hand-grenade. The evidence of the other witness P. W. 3 Hanif Brohi on this point appears to be little different.
According to him the informant called from outside the quarter and a person came out of the said quarter. He did not identify that person to be the accused in Court, in fact he said that that person is not present in Court. He further said that he handed over the hand-grenade to P. W. 1 Latif and dressed that he had seen the hand-grenade which had been purchased by Latif Gabole. He identified the hand-grenade to be the same which was in the Court. However he changed in the very examination- in-chief and said "In the meantime the S. H. O. Who was coming also reached that place. The S. H. O. Arrested the man who at that time still was in the possession of the hand- grenade he was holding in his hand."
Evidently his statement is self-inconsistent. With regard to failure of identifying the accused in Court be explained the position that the person who brought the band-grenade was in uniform at that time. This is not the case of any other person, his evidence being the only evidence about the point of possession does not appear to be satisfactory and of the standard which should attract the provision of law for shifting the burden to the accused is not free from reasonable doubt. Once the hand-grenade had passed hands and gone to the possession of the purchaser Latif Gabole is not clear how the S. H.
0. Was able to secure the same from the bands of the accused.
7, What is more surprising is the statement of the S. H. O. Akhtar Ahmed himself in so far that on his own showing was posted at the Kalakot Police Station. He after securing the hand-grenade which according to him was secured from the accused proceeded to Garden Police Station and registered this first information report at 5-35 p.m. In his desuitien, he said that he then obtained the opinion from the Explosive Inspector mid claimed Exh. 3-A to be his letter addressed for that purpose. Ezb. 3-A 's a letter addressed to the Platoon Commander Bomb Disposal Karachi, not by the S. H.
0. But by the S. D. P.
0. Eidgab, Karachi, which reads as under :- "In connection with the investigation, a Hand-grenade has been seized from Muhammad Akram.
Please examine the same and intimate the result on the following points : #TBS Whether it is alive or not. Capacity of destruction. Power of explosion. Make." #TBE (Sd.)
S.D.P.O., Eidgah, Karachi."
The note underneath the signature shows that the hand-grenade with its detonator was sent to the concerned authority and this is confirmed by what P. W. 2 Fateh Muhammad stated in Court, he stated that he received a hand-grenade along with a letter from the S. H. 0 Eidgah Police Station for examination and certificate. The letter Exh. 3-B shall incorporate the actual opinion of the Platoon Commander which depicts a different situation. The opening paragraph whereof clearly shows the hand-grenade was not sent to the Platoon Commander but the same was examined by him at the Eidgah Police Station itself, the relevant paragraph may be produced for the sake of convenience "(1) On 8th October 1976 at about 11.00 Hrs. An A. S. I. From Eidgah P. S. Came with a message from the Supdt. Of Police that, the Platoon Commander B. D. Platoon, was urgently required at the Eidgah Police Station:
(2) On reaching the Police Station a Grenade Hand No, 36 M-K with its detonator was handed over to the Platoon Commander for inspection and report."
' This whole situation is to be not free from confusion which is more confirmed by the consent letter Exh. 5-A, issued by the Government of Sind Home Department under the signature of Mumtaz Baig, the Deputy Secretary. The consent appears to be given on the basis of the facts which do not fall in strict conformity with the prosecution case. The Deputy Secretary was not examined and the facts remained unexplained. By pars, No, 1 of the consent order a present situation in which the hand- grenade was secured reads as under :- "No, 1712-H (Judicial. 1)176.-Whereas Case No, 209/76 under section 5 of the Explosive Substances Act, 1908, was registered by the S. H.
0., Kalakot Police Station and during the course of investigation, the S. H.
0. Recovered a carton of hardboard containing hand-grenade No, PCF 1968-36 (M) W. K. PCF. 896- 64 PC.F 58, from the quarter of accused Muhammad Akram son of Muhammad Khan situated at 0/29, P. T. S. Quarters Police Headquarters, Karachi."
The consent was admittedly given after perusal of the investigating papers and was signed by the said Deputy Secretary on 26-11-1976 and after seizure of the hand-grenade it appears that the Deputy Secretary in spite of the perusal of the case papers was not clear in his mind that the hand- grenade was secured from the person of the accused and not from the quarter of the accused.
There appears to be something wrong somewhere, which the prosecution was not in a position to explain. In any case, it appears that the consent of the Government was not given on a proper appreciation of the facts of the case which might even have the effect of invalided-iii' prosecution.
' In the above circumstances, I am of the confirmed opinion that the point with regard to the actual possession of the hand-grenade which is crucial point has not been proved by the prosecution beyond reasonable doubt. It would not be necessary to discuss the case of the accused or the evidence of his defence witnesses. The prosecution has failed in its initial duty of proving the possession. The greater doubt is cast by the examination of the facts and the order of the consent which makes it doubtful that the band-grenade was secured from the hands of the accused or inside the quarter of the accused. The accused is entitled to the benefit of doubt. He is, therefore, acquitted.
PROPERTY ORDER ' The hand-grenade is in the possession of prosecution agent, which may be returned to the Inspector of Explosives after obtaining the receipt which may be filed in this Court. The Inspector of Explosives shall retain the same till further orders.