1998 P Cr (PLP)

HAMID ALI MIRZA, J.

This is an appeal under section 7 of Suppression of Terrorist Activities Act, 1975 directed against the judgment of conviction dated 17-3-1996 passed by learned Special Judge (S.T.A.), Larkana whereby appellant is convicted for an offence under section 5 of Explosive Substances Act, 1908 and sentenced to undergo R.I. for seven years and fine of Rs.5,000 and in default in payment of fine to undergo further imprisonment for six months. The brief facts of the prosecution case are that on 20-4-1995 one Aziz- ur-Rehman, A.S.-I. Incharge of Police Station Ratodero lodged report on behalf of the State stating therein that there was general strike call from Rahabar Committee Jia-e-Sindh on which date he alongwith his subordinate staff PC Khaliqdino, P.C. Muhammad Ayub- and P.C. Fiyaz Hussain were deputed on their duties at Shikarpur Naka in Ratodero Town vide Entry No.51 dated 20-4-1995 and at about 9-30 a.m. two boys came who asked the shopkeepers to close their shops, else they would cause damage to their shops and would blow-up the sane hence the boys were arrested by police in presence of Mashirs P.C. Khaliqdino and P.C.' Muhammad Ayub action their personal search of their body froth the pocket of appellant Mansoor ali explosive substance of ' Patakha' was secured so also from pocket of Zahid explosive substance of ' Patakha was secured and such memo. of arrest and recovery of Patakhas was prepared by the police when A.S.-I. Aziz-ur-Rehman lodged the F.I.R. on behalf of the State. Police after usual investigation challaned the appellant/accused to stand the trial. The trial Court, framed the charge (Exh.2) to --which the appellant/accused pleaded not guilty and prosecution examined complainant A.S.-I. Aziz-ur -Rehman (Exh.4) who produced memo. of arrest and recovery (Exh.4/A), F.I.R. (Exh.4) so also order of the Secretary to the Government of Sindh, Home Department (Exh.4/C), Mashir P.C. Khaliqdino (Exh.5) and prosecution closed the side as per Exh.6. The appellant/accused Mansoor Ali was examined under section 342, Cr.P.C. wherein he denied the charged offence and stated that he was innocent and has been falsely implicated in the case. We have heard Mr. Mr. Abdul Waheed Katpar, learned counsel for the appellant, and Mr. S. Akhtarul Haq Iqbal Qadri learned A.A.-G. perused the evidence recorded by the trial Court. Mr. Abdul Waheed Katpar has contended that the only point, which required consideration, would be whether the ' Patakhas' (crackers) could be termed to be "explosive substance" within the meaning of section 2 of Explosive Substances Act. According to Mr. Katpar ' Patakhas' (crackers) cannot be termed to be "explosive substance". Section 2 defines "explosive substance" as under: "In this Act the 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 aiding in causing an explosion in or with any explosive substance; also any part of any such apparatus, machine or implement," He has also referred to a case Muhammad Afaq Khan Shahid and others v. The State PLD 1987 Kar. 341 wherein learned Judge in Chambers observed at gage 345: "In my humble opinion the definition of 'explosive substance' as given in section 2 of the Act is to be carefully interpreted. If a literal meaning is assigned to this expression, then even ordinary sulphur, acids, nails and tin pieces, which are in common daily household use, would also become an offensive object. The crackers and fireworks filled with live gun powder freely used during marriage ceremonies, and Shab-e-Barat being explosive substances, 'would become actionable and provide a basis for prosecution of-their users or possessors. But it is riot so." In para. 19 at page 346 it has further observed: "In my opinion there has to be a nexus between the explosive object and its use visualised in section 3 of the Act. The explosive substance mentioned in section 5 of the Act should be such as to qualify for a use described in section 3 of the Act. Looked in this context the following opinion of the Expert becomes very relevant: It is correct that the crackers produced in Court today which I have examined are ordinarily called Patakhas and they are normally used as crackers during the Shab-e-Barat and on occasions of marriage ceremonies. It is correct to say that all the material, which has been produced in Court today, cannot be used for causing any explosion as it is in the present form. In the present condition this cannot cause any explosion and cannot cause any danger to human life or property'. " Reference may also be made to Pritamdas Chellaram v. Emperor AIR 1933 Sindh 171 wherein Division Bench of this Court observed at page 173, Column No. 1: "....Following the decision of two other High Courts we decide that Patakhas are not explosives within the meaning of the Explosives Act but are toy fire works and as such exempt from Rule 35, Explosive Rules. " In the instant case admittedly Patakhas were secured from the possession of appellant/accused but the same could not be termed to be explosive substance as observed in the above-cited cases but even if assuming for the sake of arguments Patakha be termed to be explosive substance then also the prosecution has failed to prove/show that the said Patakhas were intended to be used or adapted for causing or aiding in causing an explosion in or with explosive substance and that the appellant/accused was apprehended in such circumstances which tend to raise a reasonable suspicion that he had committed such offence. Mere being in possession of Patakhas (crackers) would not bring the case of the appellant for an action under section 5 of the Explosive Substances Act, 1908 unless it is proved by the prosecution that the said Patakhas were not in possession of the appellant/accused for lawful object. Besides, the prosecution has failed to produce any certificate or report from the Armoury certifying the said Patakhas to be "explosive substance' within the meaning of section 2 of Explosive Substances Act though prosecution was given sufficient time to produce the report and for that purpose number of dates v ere given and announcement of judgment was postponed but ultimately as the report was not produced, the judgment of conviction against the appellant was passed even in absence of the required necessary report. Non-production of report from Armoury by prosecution to show that the Patakha was explosive substance, is fatal to the prosecution case and adverse presumption under law would be drawn under Article 129(g) of the Qanun-e-Shahadat that had the said report been produced it would have gone against the prosecution. In the instant case also because the report has not been produced from the Armoury by the prosecution therefore it would amount that had the same been produced it would have not supported the prosecution case. It will not be out of place to state that section 5 of Explosive Substances Act prescribes only the sentence of imprisonment and not of fine whereas the trial Court has also passed sentence of fine against the appellant, which would not be legal. Mr. S. Akhtarul Haq Iqbal Qadri, learned A.A.-G., has rightly conceded that non-production of the report from the Larkana Armoury would be fatal to the prosecution case to prove that the Patakhas so secured by police was explosive substance. Mr. Katpar has further pointed out that at page 5 of the impugned judgment, the Trial Court itself has observed that had the said Patakhas been in possession of the appellant at the time of the marriages or Shab-e-Barat the same would not have amounted an offence. Mr. S. Akhtarul Haq Iqbal Qadri, learned A.A.-G. does not support the conviction and sentence passed against the appellant. Accordingly, on assessment of evidence and the case-law, we find that conviction and sentence passed by Trial Court are not legal consequently the same are set aside and appeal is allowed. The appellant is on bail his bail bond is discharged. , H.B.T./M-267/K Appeal allowed.