1984 PLP 866 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑Muhammad Yasin, appellant, who was a cleaner in the P. I. A. was tried along with Muhammad Yousaf and Israr Ali (also an employee of the P.

1. A.), for offence under sections 3, 4 and 5 of the Explosive Substances Act, 1908.

2. The facts giving rise to the case were as follows: Muhammad Yasin appellant was residing in Quarter No. S. 3.144 situated in Saudabad, Karachi, along with his wife Mst. Shamim Bano, his daughter and a minor son Imran, aged 3 years. Mr. Abdul Baqi Baloch, a well‑known political figure was also staying with him as a guest. On 24‑2‑1975, at about 11 a. m. a loud explosion took place in the said quarter. At that time the appellant, his two children and his sister‑in‑law were present in the house while his wife Mst. Shamim Bano who was employed as a typist in some office bad gone to work. The explosion attracted a number of persons including Anisur Rehman, a hotel keeper, whose hotel is situated at a distance of 100/150 paces. Some other persons including Buban Mirza, Muhammad Iqbal, Muhammad Wasi, P. W. and his son Javid had already collected there. Muhammad Yasin (appellant) had come out and was standing at the outer door of the quarter with his son Imran in his lap. The fingers of his right hand bad been blown off and he was bleeding profusely. His son Imran had also suffered injuries and was unconscious. On inquiry by Anisur Rehman P. W. the appellant told him that a bomb had exploded in his quarter. He appeared to be confused and stated that some bombs were lying in a basket in his quarter and that there should be taken out and thrown away. Some of the P. Ws. hurriedly got a taxi and took Muhammad Yasin and his son to the Jinnah Hospital for treatment. Anisur Rehman P. W. informed the S. H. O. Muhammad Warial of P. S. Malir. The S. H. O. informed the D. S. P. Fazlur Rehman whose office was situated in the same premises. After making necessary entries in the Station diary, the D. S.P. and the S.H.O. rushed to the spot. As the outer door of the appellant's quarter was bolted from inside, a constable was sent into the house by scaling over the wall. He unbolted and opened the door from inside. On searching the quarter a basket containing about 7 explosives (4 round shaped bombs and 3 dynamite sticks) was found lying in one of the rooms. Pieces of the burst hand were also recovered. The police also found the appellant's fingers sticking to one of the walls. These articles, as well as the fingers, were taken into posses sion.

3. As a result of the investigation the police also arrested two co- accused. They were charged alongwith appellant of conspiracy for manu facturing and possessing explosives and causing explosions. The appellant was further charged with possessing explosives and causing the explosion on the 24th of February, 1974. Judicial confession of Muhammad Yasin appellant was also got recorded wherein he stated that one Muhammad Yousaf, a member of the Jamat‑e‑Islami had given the basket in question to him for keeping it but never returned to take it back. It was stated further that on fateful day he wanted to fix a nail in the wall of the house and took out one of the articles from the basket and used it for hitting the nail whereupon it exploded resulting injuries to him and to his son Imran. In the first place the confession is exculpatory and secondly the appellant went back on it at the trial.

4. The appellant and his co‑accused were ultimately sent up for trial and charged under sections 3, 4 and 5 of the Explosive Substances Act, 1908. In support of it the prosecution produced some of the persons who had reached the house soon after the incident including Anisur Rehman (P.W. 3), Muhammad Iqbal (P. W. 5), Buban Mirza (P. W. 6) and Muhammad Wasi (P. W. 7). It also relied on the testimony of Fateh Muhammad (P. W. 13) Platoon Commander, Bomb Disposal, Karachi ; recovery of the bag con taining 7 live explosives from the appellant's quarter as wall as appellant's blown away fingers ; the judicial confession of the appellant and the medical evidence.

5. The appellant retracted from the confession and denied his guilt. He explained that earlier on the same day when Mr. Baqi Baloch had left his, house, a person came and delivered a bag containing some object looking like biscuits to him for Mr. Abdul Baqi Baloch. He took the bag and kept it inside the house. His son (Imran), however, picked up the bag and brought it to him saying that it contained biscuits and he wanted one of them. The bag accidentally fell down resulting explosion causing injuries to him as well as to his son.

6. The learned trial Court acquitted the other two co‑accused but con victed the appellant under sections 3 and 4 (b) of the Explosive Substances Act, 1908, and sentenced him to 7 years' R. I. with a fine Rs. ,000 on each charge. In case of default to pay fine he was ordered to suffer further im prisonment for one year on each charge. The sentences of imprisonment were ordered to run concurrently. But neither any conviction nor an express acquittal was recorded as far as charge under section 5 of the said Act is concerned. . Yasin's appaal before the High Court failed. Hence this appeal by leave of this Court.

7. The main contentions raised by the appellant's counsel were that the evidence on record does not disclose any offence under section 3 or 4(b) of the Explosive Substances Act, and that the appellant was impliedly acquitted of the charge under section 5.

8. For a proper understanding of these contentions it would be useful to reproduce these sections :‑ "S.

3. Any person who unlawfully and maliciously causes by any ex plosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with death or imprisonment for life." "

4. Any person who unlawfully and maliciously‑ (b) 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 shall, whether any explosion does or does not take place and whether any injury or 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."

6. After having carefully gone through the above‑noted provisions and given our anxious thought to the contentions raised by the learned counsel for the appellant, we are inclined to agree with the appellant's counsel that the evidence on the record does not make out ether an offence under section 3 or under section 4(h) of the Act in question. Section 3 makes it punishable for unlawfully and maliciously causing explosion which is likely to endanger life or property. No doubt in the present case an explosion was caused which endangered life, but even if it be assumed that the appellant had knowingly caused the explosion yet it cannot be said that be did it maliciously. It is evident from the record that not only his own fingers had been blown off but his minor son aged 3 years who was standing nearby was also seriously injured. It cannot, therefore, be ima gined that the appellant caused explosion maliciously. As a matter of fact, from the evidence on the record it appears that he did not even know that the explosion was like to occur at that time. The necessary ingredient of the offence are, therefore missing, with the result that the appellant could not have been found guilty of offence under section 3 of the Act.

7. Section 4 (b) of the Act makes it an offence to be in possession or in control of any explosive substance" with intent by means thereof to on danger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in Pak istan". The learned State counsel has not been able to point out any material on the record to establish such intention. He argued that this should be in ferred from mere possession of the explosives. We rot think such an infer ence can be drawn in this case. The intention in question must either be specifically established or such facts should be brought on record from which an inference of the presence of such intention can be reasonably drawn. But no such facts hive been brought on the record in this case. Consequently we feel that the possession of the explosives by the appellant in this case does not fall within the mischief of section 4 (b) either.

8. We are, however, of the view that appellant's action falls within the mischief of section 5 of the Explosive Substances Act. The ingredients of the offence under this section are (i) making or knowingly having in possession or under control ; (ii) any explosive substances ; (iii) in circumstances as to give rise to a reasonable suspicion that he is not making or does not have it in his possession or under his control for a lawful object. It would be noticed that this section does not require strict proof of the mala fide intention of the person in possession of the explosive. It is enough if the surrounding circumstances are such as to given rise to a reasonable suspicion that the accused did not possess the explosive for a lawful object. The inference is, of course, rebut table but the onus of showing that the inference is not correct lies on the accused. We are of the view that facts proved on the record of this case do give rise to such a suspicion and the appellant has not been able give any plausible explanation to dispel it.

9. Learned counsel for the appellant, however, argued that since the appellant was impliedly acquitted of the charge under section 5, he cannot now be convicted and sentenced for the same, in the absence of any revi sion or appeal against his acquittal. We are not persuaded to agree with this submission. The accused was duly charged under the said section and bad consequently been put on notice. The fact of possession as well as the circumstances raising reasonable suspicion required by the provision of section 5 were duly proved but since the learned tri41 Judge felt that graver and more serious offences,. under sections 3 and 4 (b) of the Act, stood proved from the evidence on the record, which are punishable with much higher sentence than the one under section 5, he chose to convict him under the said sections, but he did not acquit the appellant of the charge under section

5. He merely omitted to award a sentence there under probably in view of the provisions of paragraph I of section 71, P. P. C. As such it was not necessary that a revision or an appeal against the appellant's acquittal should have been filed. Section 423, Cr. P. C. subsection (b) (2) gives the appellate Court suffi cient power to alter the conviction with or without reducing the sentence. We, therefore, alter the appellant's conviction from sections 3 and 4 (b) to one under section 5 of the Explosive Substances Act, 1908. However, view of the fact that sentence for this offence is lesser than the appellant for which the appellant was convicted by the trial Court, we reduce the sentence from 7 years' R. I. to 3 years' R. I. The sentence of fine is, however, maintained. The appeal is dismissed with the above modification. S. Q. Order accordingly.