1988 P Cr (PLP)

My findings on these points with reasons therefore, are as follows:

POINTS NOS. 1 AND 2.

5. The prosecution has examined A.S.I. Imdad Hussain who has stated on oath that on 28-9-1987 at about 10-30 a.m. he had apprehended a truck bearing No.8279 QAA which was coming from Quetta side. The truck was being driven by accused Behram while Jalaluddin was sitting by his side. He brought the truck to Thull Police Station and called mashirs Nazir and Lakhoo. In presence of these mashirs he got the material unloaded. The truck had iron crap on it on the top and beneath it there were empty shells of brass cartridges weighing 6,000 k.g. He secured the same and prepared mashirnama. Driver Abdul Behram produced a bilty which , was also secured by the A.S.I. The mashirnama has been produced by A.S.I. Imdad Hussain Exhibit 1/1 and the bilty as Exhibit 1/2. The A.S.I. then lodged F.I.R on behalf of the State which has been produced as Exhibit 1/3. A.S.I. then referred the empty shells to the Explosive Expert and obtained his report which has been produced as Exhibit 1/4.

3. Mashir Nazir Ahmed has been examined as Exhibit

2. He has stated that A.S.I. Imdad Hussain had detained truck No.8279 and had got unloaded the material lying therein in his presence. The material contained empty shells of brass of different sizes of artillery. The A.S.I. prepared mashirnama in his presence and that of co-Mashir Lakhoo. It would therefore appear that evidence of A . S.I . has been supported on this point by the evidence of mashir Nazir as well as by mashirnama and F.I.R. The bilty which has been secured by A.S.I. also shows that loose scrap weighing more than 400 maunds was being transported by truck No. 8279 from Quetta to Lahore. The accused have also not denied or disputed this part of the prosecution case. Both of them in their statements in reply to the charge have admitted that they were taking these broken pieces of cartridges as scrap from Chaman to Lahore where they were to be sold for melting. They have not claimed that they had any licence for the same. I am therefore, satisfied that the accused were found in possession of about 6,000 k.g. of empty shells of brass which has been produced before the Court for which they had no licence. POINT NO.3.

7. Now it is to be seen whether the accused by having been found in possession of these 6,000 kgs. of empty shells of cartridges committed a scheduled offence or not. The schedule to the Suppression of Terrorists Activities (Special Courts) Act 1975 in clause (b) and (c) which are the only relevant clauses for the purposes of this case, provides as under:

"(b) Any offence punishable under the Explosive Substances Act 1908 (XI of 1908). (c) Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, No.XX of 1965 (West Pakistan Ordinance No. XX of 1965), namely, sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb or rocket: The plain reading of these clauses would show that the possession of these empty shells would amount to a scheduled offence only if can be shown that the same are either "explosive substance, possessed for an unlawful purpose" or a cannon, grenade, bomb or rocket". The most important point for consideration therefore will be as to whether these empty shells can be treated as an explosive substance possessed for an unlawful purpose or a cannon, grenade, bomb or rocket". I would deal with these items one by one.

8. Section 2 of Explosive Substances Act 1908 which defines Explosive Substance reads as under:- "Definition of "explosive substance". In this Act expression "explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement, or material used, or intended to be used, or adapted for causing, or with any explosive substance; also any part of any such apparatus, machine, or implement." The plain reading of this section will show that the definition of Explosive substance given therein is inclusive and not exhaustive. It has been provided in this section that the expression "Explosive substance" shall be deemed to include any materials for making any Explosive substance; also any .materials used or intended to be used in causing any explosion .also any part of any such apparatus machine or implement". It was therefore, contended by Mr. Illyas S.P.P. that since these empty shells were materials for making an explosive substance or were at any rate a part of an explosive substance hence these empty shells are covered by the definition of "Explosive Substance" given in this section .I do not agree with this contention. At present the utility of these empty shells is not more than that of a piece of brass. Even the ballistic expert who has been examined by the prosecution has admitted that these shells cannot be refilled. He has further stated that these shells could be re-manufactured only in the Ordnance Factory after melting it into brass. He has also admitted that this scrap in his opinion was being transported to Punjab perhaps for being melted as brass. Similar situation had arisen in re Ammiwa Mutyalu reported in A.I.R. 1946 Madras 45 where it was contended that yellow phosphorus which was found from the possession of an accused is a material used or intended to be used in the causing of explosion as it can be used as an incendiary in a bomb which is explosive substance. The Court did not accept the contention and held that yellow phosphorus in its ordinary state kept in a bottle containing water is not explosive substance as defined in this Act. In another ruling reported in 1936 Cr.L.J 1037 Thaneje Kethse v. Emperor it was held that a Gramophone needle could not be regarded as lethal weapon under section 2 of Explosive Substances Act. I am therefore, of the clear view that the possession of pieces of brass or other metals, needles, nail, pieces of glass or even glass bottles could not be treated as possession of an explosive substance if the circumstances of a particular case show that these were not intended to be used for causing an explosion by making an explosive substance from the same. S.P.P. Mr. Illyas cited the case of State v. Ahad Shaikh reported in PLD 1983 SC 23'5 where a hand-grenade was recovered from the accused which was highly dangerous and suspicious weapon and even no licence was issued and could not be issued to a civilian to keep it. It was held that reasonable suspicion existed that the accused was carrying that hand-grenade not for lawful purposes and burden shall be on the accused to prove otherwise. There would be no cavil with the legal proposition propounded in this case, but on facts this ruling is distinguishable from the present case. The hand-grenade which was recovered from the accused was still capable of being exploded if fire was shown to it while in the present case the empty shells are not capable of being exploded at all. In this ruling it will be useful to reproduce the following passage:

"Even a plain reading of this section would show that the ingredients required to be proved for establishing an offence under this section are firstly that the accused should be in conscious possession of the explosive substance, i.e. he should have the knowledge that he is in possession thereof. In other words if for example an explosive substance say a hand grenade, is planted on any one without his knowledge, he cannot be convicted under this section for being in possession thereof although it is admittedly recovered from him; the second ingredient required to be proved is that the explosive substance was recovered from him in such circumstances which are sufficient to give rise to a reasonable suspicion that he did not have it in possession for a lawful purpose.

5. As to the second ingredient the legislature, obviously deemed it necessary to ensure that each and every person having an explosive substance in his possession should not be made liable for an offence under section 5 of the Act because, in the nature of things there would be people handling or having in their possession explosive and even dangerously explosive substances in the course of their vocation of duty. For instance persons having the manufacture of fireworks as their profession would naturally be having in their possession material which is highly volatile or explosive. Similarly army personnel, specially those engaged in the manufacture of ammunition of explosives for use by the armed forces would be handling or having such material in their possession. Therefore section 5 of the Act was so worded as to make it necessary to show that the circumstances in which any person was found to be in possession of an, explosive substance were such that it would be reasonable to suspect or infer therefrom that he was carrying it or had it in his possession for an unlawful purpose. Obviously a finding in this respect would not be one of law but purely of fact. A number of factors would be relevant for a finding on this question, for example the nature of the quantity of the substance the time and place where the person in question was found in its possession the vocation, profession, status and the antecedents of the person found to in possession of the explosive substance as well as his conduct and or behaviour at the 'time or after his being found in possession of explosive material. If the prosecution is able to bring on record facts from which the Court can reasonably infer or suspect that they were not carrying it for a lawful purpose then the law shifts the burden of proof on the accused and it is then for him to dislodge the suspicion and show that he was carrying the substance in question a lawful purpose. Hence I am satisfied that the empty shells recovered from the possessions of the accused were not explosive substance because these were no more capable of causing an explosion and that from the circumstances it appeared that the accused were carrying the same for being sold for melting which was s lawful purpose.

9. Section 3 of Arms Ordinance defines in clause (a) ammunition, in clause (b) arms and in clause (c) cannon. Naturally therefore these empty shells if they answer the definition of 'ammunition' will not fall within the definition of cannon because they cannot be an ammunition as well as a cannon arm at a time by any stretch of the argument. Moreover the word cannon has been defined in Chamber's 20th Century Dictionary as a great gun while these empty shells are not guns. Pakistan Arms Ordinance 1965 has not defined the terms "rocket, grenade or bomb" and therefore we have to refer to their dictionary meaning. A rocket has been defined by the above dictionary as" a simple device, a cylinder full of inflammable material, projected through the air for signalling, carrying a line to a ship in distress fitted on an aeroplane or helicopter gunship. Hence these empty shells cannot be regarded as a rocket. These empty shells cannot even be treated as grenades or bombs because grenade is something quite different from a cartridge or shell. In Chamber's Dictionary a grenade has been defined as "a small bomb thrown by the hand or shot from a rifle, a glass projectile containing chemicals for putting out fires, testing drains, dispensing poison-gas or teargas etc." Bomb has been defined by the same dictionary as a hollow case containing explosive, incendiary, smoke producing poisonous, or other offensive material, deposited, thrown, dropped, or shot from a mortar." Thus it would appear that these empty shells do not answer anyone of the meanings given above in the dictionary. The prosecution evidence also does not establish that these empty shells answer the meanings and descriptions as given above in respect of any one of the items mentioned in the Schedule of the Suppression of Terrorists Activities (Special Courts) Act 1975. The evidence of prosecution witness Pir Mohammad Ballistic Expert is also very important in this connection. It shatters the very foundation of the prosecution case. He had examined the sample of shells lying in the Court and had come to the conclusion that, these type of ammunition were used by armed forces during war. These can only be fired from cannon (heavy guns). By looking at the marks he came to the conclusion that these heavy explosive shells were used by armed forces during Indo-Pak war and manufactured by India and Russia. These are not containing explosives as they were already fired. These cases were made of brass and were parts of shells. These were empty discarded cases of the shells. In the cross-examination he has admitted that a live cartridge contained a live percussion cap, a propellant and a projectile. These empty shells contained dead percussion caps, and did not contain the propellant and the projectile as the same were already fired. In this condition these empty cartridges cannot be used as explosives. These could only be used as scrap. He has further admitted that it was correct to suggest that cartridges, bombs, grenades and rocket launchers are different and separate types of ammunition. It is therefore quite clear that these empty shells which were claimed to be part of cartridges were neither "explosive substances" nor bombs, grenades or rockets" even according to the ballistic Expert who was an ace witness of the prosecution itself. I am therefore satisfied that the possession of these empty shells was not an offence under subsection (b) of Section 4 of the Explosive Substances Act or under section 9 of Pakistan Arms Ordinance 1965 as included in the schedule of Suppression of Terrorists Activities (Special Courts) Act 1975.

10. It has been stated by the Ballistic Expert that these shells are not to be sold without certificate from army. Apart from that it has been the view of certain Courts of this sub-continent as was held in the case of Ameer v. Empire reported in A.I.R. 1925 Al1.492 and Kallu v. Empire reported in A .I . R . 1926 All. 255 that the word ammunition includes not only serviceable loaded cartridges but also dusty and rusty cartridges and bullets as well as empty cartridges which are part of ammunition and which can be re-filled and used again. To this Mr. Ashraf Khan Tanoli had pointed out that the Ballistic Expert had admitted in his cross-examination that these empty shells cannot be re-filled in the ordinary way. These had first to be melted and then re-filled by an Ordnance factory. In any case even if the possession of these cartridges in prohibited under any other provision of the Arms Act, or rules thereunder the same is definitely not a scheduled offence and this Court cannot take cognizance of the same.

11. Under these circumstances I hold that the applicants are not guilty of a scheduled offence and therefore I acquit them. The accused are in custody. Superintendent Central Jail Karachi is directed to release them forthwith if they are not required in any other offence. All the scrap found from the truck including the truck itself weighing about 6,000 kgs except the empty shells be returned to the accused. The empty shells be sent to District Magistrate for disposal according to law. M. Y . H . / A-257/ K Accused acquitted.