P L D 1994 Karachi 442 (PLP)

SALAHUDDIN MIRZA, J.‑‑The appellant has been convicted under section 4/5 of Explosive Substances Act on the basis of F.I.R. No.240 of 1993 of P.S. Gulshan‑e‑Iqbal which was recorded on 22‑5‑1993 at 20‑45 hours at the instance of A.S.I., Tariq Ali of the said police station. The prosecution case is that a Police Party of Police Station Gulbahar was on patrol duty from 8‑00 hours onwards on 22‑5‑1993 when at about 19‑45 hours it noticed a person coming on a motorcycle. A.S.I., Tariq Ali, on suspicion, gave a signal to the motor cyclist to stop, and when he stopped, the A.S.I. took his personal search and found him in possession of a paper box containing explosive substance. Since ‑the said person, who is appellant Muhammad Ansar, could not produce licence for an explosive substance he was arrested and challaned in the Special Court No.III for Suppression of Terrorist Activities, Karachi. In support of its case the prosecution has examined P.W.1 Goga Zaqib, Head Constable and P.W.2 Gul Khan Police Constable of Gulshan‑e‑Iqbal Police Station who were members of the Police party and P.W.3, A.S.I. Tariq Ali who headed the same. The substance, said to be the explosive material, was sent for the expert report of Deputy Director Civil Defence and Officer Incharge Bomb Disposal Service whose report is available on record as Exh.8. In.his 342, Cr.P.C. statement the appellant denied they prosecution story. He also got himself examined under section 340(2), Ct.P.C. Here he stated that he had been arrested one month prior to the alleged date of incident (22‑5‑1993) and was interrogated by the Field Investigation Team and by the Police of P.S. Gulbahar in connection with Crime No.88 of 1993. In support of his claim he has placed on record copy of F.I.R. No.88/93 of P.S. Gulbahar which was recorded on 5‑4‑1993 at the instance of one Sanaullah Khan Taxi Driver who had alleged that three boys, one. of whom was aged about 20‑22 years and the remaining two about 29‑30 years, had robbed him of his taxi. He has also produced copy of remand orders Exh.15 and Exh.16 and copy of the 169, Cr.P.C. report Exh.17. After assessing this evidence learned trial Court believed the prosecution version and came to the conclusion that the appellant was arrested on 22‑5‑1993, as alleged by the prosecution, and was found in possession of explosive substance and, vide impugned judgment dated 17‑10‑1993, convicted him under section 4/5, Explosive Substances Act, 1908 and sentenced him to undergo seven years' R.I. The appellant has now come in appeal. We have heard the learned counsel for the appellant and the learned Additional A.‑G.

2. At the outset, learned Additional A: G., did not support the conviction and sentence of the appellant on the ground that vide report, dated 9th June, 1993 of the Deputy Director Civil Defence and Officer Incharge Bomb Disposal Service (Exh.8), which is. the sheet anchor of the prosecution case, the said Officer has opined, after examining the contents of the paper box alleged to have been recovered from the possession of the appellant, that "For causing explosion through the explosive, a detonator alongwith a safety fuse or electric mechanism is necessary. These elements do not accompany the flake, and, therefore, it is harmless and cannot cause explosion." The report also clarified that the Bomb Disposal Service of Civil Defence Department of the Government of Sindh, of which Mr. Moinuddin was the Deputy Director under whose signature the report was given, was neither an Explosive Department nor had a testing laboratory and, therefore, laboratory test report could not be furnished and for that purpose the Chief Inspector of Explosive, Government of Sindh, might be in a position to give such report. The Investigating Officer did not bother to send the contents of the paper box, alleged to have been recovered from the possession of the appellant, to the Chief Inspector of Explosive. There is, thus, nothing on record to establish that the contents of the paper box, said to have been recovered from the possession of the appellant, contained explosive material. The only evidence on this point is the report of Bomb Disposal Service of the Civil Defence Department (Exh.8) which has been discussed in the preceding lines. This report, inadequate as it is for the purpose of determining the nature of the substance, nevertheless opines that it was a harmless matter and cannot cause any explosion. In view of this position, we agree with the learned Additional A.‑G. that the prosecution has failed to establish that the material recovered from the possession of the appellant is covered by the definition of Explosive as given in section 2 of the Explosives Substances Act, 1908. The impugned judgment and conviction and sentence of the appellant are, therefore, liable to be set aside on this short ground alone.

3. We are also of the view that the prosecution has failed to prove beyond any shadow of doubt that the appellant was apprehended by the Police on 22‑5‑1993 in the manner alleged in the F.I.R4 and his personal search had resulted in the recovery of a paper box containing explosive substance. The appellant had tendered in evidence, as Exh.14, a copy of F.I.R. in Crime No.88 of 1993 of P.S. Gulbahar recorded on 5‑4‑1993 which pertained to the snatching of a taxi on pistol point by three young persons. He has then tendered in evidence remand reports Exh.15 and Exh.16, showing that appellant Muhammad Ansaar was arrested in Crime No.88 of 1993 (Exh.14) on 8‑5‑1993 and was granted Police remand, first from 8‑5‑1993 to 14‑5‑1993 vide Exh.16, and then up to 19‑5‑1993 vide Exh.15. He then (sic) copy of 169, Cr.P.C. report submitted by the Gulbahar Police. This report was submitted by the Gulbahar Police to the higher Police authorities and is signed by the S.H.O. of P.S. Gulbahar on 22‑5‑1993. It is thus evident that the appellant could not have been released under section 169, Cr.P.C. till at least 22‑5‑1993. Learned trial Court has totally ignored this evidence and has not said a word about it in impugned judgment. On the contrary, it has relied upon Roznamcha reports marked as `B' and `C'. These reports have not been tendered in evidence in accordance with law. These documents could only have come on record by way of additional evidence, either at the instance of the prosecution or at the instance of the Court, and in that case they should have been tendered in evidence through a witness competent to prove them and should have been properly exhibited and thereafter further statement of the accused appellant under section 342, Cr.P.C. should have been recorded on the basis of this Additional evidence. This has not been done and the learned trial Court has treated the unproved Roznamcha reports marked `B' and `C' as proved documents. One of these documents the Roznamcha report marked `C', states that the appellant had been released under section 169, Cr.P.C. on 18‑5‑1993. Relying on this averment in the document marked `C' learned trial Judge observed that the appellant was released on 18‑5‑1993 and, therefore, his ostensible arrest on 22‑5‑1993 was beyond suspicion. We would, firstly, treat mark `B' and `C' documents as unproved and, accordingly, strike them off from the record and, secondly, this Roznamcha entry is, in any case, suspicious in view of the 169, Cr.P.C. report Exh.17 which shows that till as late as 22‑5‑1993 the Gulbahar Police was beseeching the higher authorities for the release of appellant under section 169, Cr.P.C. It would thus follow that the appellant was in the custody of Gulbahar Police till as late as 22‑5‑1993. In this view of the factual position, it becomes highly unbelievable that on the very day of his release from Police custody he would be found riding a motorcycle with the alleged paper box containing explosive material. One would expect that after 14 days of detention with the Field Investigation Team and the Gulbahar Police the appellant would at least sit for a day in the house and rest awhile. This circumstance, coupled with the fact that P.W.3, A.S.I Tariq Ali, the Head of the Police Patrolling Party, could not associate even one independent person with the arrest and recovery, even though the incident is said to have taken place in a highly populated and congested residential locality of Gulshan‑e?Iqbal and at a time on which the roads are choked with traffic and with pedestrians (1950 hours), renders the prosecution case highly doubtful, and gives substance to the claim of the appellant that after having been shown as released under section 169, Cr.P.C. on 22‑5‑1993 he was involved in the present case because of his past criminal record and his past association with persons of bad reputation, as stated by him in his statement on oath under section 340(2), Cr.P.C. We would, therefore, even if the recovered material had been proved to be explosive substance, give benefit of doubt to the appellant.

4. For the above‑noted reasons we accept this appeal, set aside the conviction and sentence of the appellant and order that he be released forthwith if not required in any other case.

5. These are the reasons for the short order dictated by us on the conclusion of the hearing on 8‑6‑1994. N.H.Q./M‑1970/K????????????????????????????????????????????????????????????????? Appeal accepted.