P L D 1976 Karachi 583 (PLP)

MUHAMMAD HALEEM, J.-This judgment will dispose of Criminal Appeals Nos. 26, 48 and J-204 of 1975 filed by Kazi Pervez Iqbal, Mohammad Tayab and Samiuddin respectively. They were tried alongwith Mohammad Hussain, Nadir Ali and Syed Mahmood for being in possession of three slabs and T. N. T. weighing 41 lbs. (Plastic Explosives 3-A) and detonators allegedly being the property of Pakistan Air Force under section 5 of the Explosive Substances Act, 1908. While Syed Mahmood, Nadir Ali and Muhammad Hussain were acquitted, the appellants were convicted and sentenced to suffer rigorous imprisonment for five years and fine of Rs. 2000, or in default to suffer rigorous imprisonment for one year by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Ordinance, 1974 vide judgment dated 20th February 1975.

2. The prosecution case is that appellant Kazi Parvez Iqbal had applied for the allotment of Room No. 47-A in PIA Colony Quarters at Karachi Airport and pending its allotment was living in it alongwith the other two appellants, Tayab and Samiuddin. It is also alleged that Alamzeb, a brother of Kazi Pervez Iqbal, also lived in the same room. Muhammad Sadiq Shah, a resident of Room No. 30-A in the same colony left his room at 6:30 or 7-00 a.m. on 29th November 1974 for collecting his salary from the P I A Office, and as he came out he saw Kazi Parvez Iqbal and Samiuddin quarrelling with each other in the passage in front of the door of the room. Kazi Pervez Iqbal had a 'danda' in his hand while Samiuddin was sitting on the ground. Without waiting to know what it was, he proceeded to the office and returned from there at 8-00 a.m., and while going to his room he saw the door of Room No. 47-A open and Samiuddin sitting there. He went inside the room to exchange views with Samiuddin and while conversing he asked Samiuddin as to what was the reason for the quarrel, upon which Samiuddin informed him that Kazi Pervez Iqbal had quarrelled as he had not prepared breakfast for him early in the morning. He then sat on the cot and wanted to light his cigarette but Samiuddin stopped him from doing so, upon which Sadiq Shah asked him if there was any special reason for not allowing him to light his cigarette, to which Samiuddin replied that "there was some special reason". Again, while leaving the room Sadiq Shah jokingly asked Samiuddin if he had kept a bomo in the room, to which question Samiuddin did not give any reply. Sadiq Shah thereafter went to his room but suspicion lurked in his mind in regard to some explosive having been kept in the room. After 10 or 15 minutes he went to Nazir Ahmad, who was the Senior Security Officer in the P I A, and informed him of the suspicion, whereafter Nazir Ahmad sent him back to the colony alongwith Ghazanfar Ali, Junior Security Officer, with the direction to keep watch over the place. After ten minutes of their arrival Nazir Ahmad and another Security Guard Ghulam Sarwar came there followed by Muzaffar, a Security Officer, and Afzal, a Supervisor. The door of the room was locked and, therefore, Nazir Ahmad knocked at the door which was opened by Samiuddin, who came out. Nazir Ahmad then interrogated him in regard to any explosive having been stored in the room, to which Samiuddin replied in the negative. Sadiq Shah then interposed and asked Samiuddin as to why he bad not allowed him to light his cigarette, upon which Samiuddin pointed out a cardboard box, which looked like a shoe box, lying under the cot. Nazir Ahmad directed Sadiq Shah to pull out the box, which he did and when opened it had explosives in it, whereafter the cover of the box was put on it. Nazir Ahmad then asked Samiuddin as to who was in occupation of the room and to whom did the explosives belong, to which Samiuddin replied that the room belonged to Kazi Parvez Iqbal and that he and Tayab were living with him. He further told Nazir Ahmad that the explosives were brought in the room by Tayab.

3. Nazir Ahmad thereupon sent Ghazanfar Ali to inform the General Manager, Security Branch and the police. Within half an hour the General Manager, Habibullah Malik, came alongwith Ghazanfar followed by Mukhtar Ahmad, Dy. S. P. and Fazal Abbas S. H. O. of the Airport Police Station at 10-00 a.m. Fateh Mohammad Chowdhry Commander, Bomb Disposal Unit, Civil Defence, Karachi, who was also informed, had by then arrived and he examined the articles inside the box and gave out that the three slabs with the mark 'TNT' were plastic explosives. He also stated that the black rods were also explosives which were 10 to 11 in number and there were also five detenators. The black rods were wrapped in a wax paper while the TNT slabs were naked. The S. H. O. recorded the statement of Nazir Ahmad at 10-20 a.m. at the spot which was incorporated in the 154 book of that Police Station. The explosives were taken into possession vide mashirnama, Exh. 5-A. A personal search of Samiuddin was also taken and from his possession a bunch of three keys and Rs. 40 were recovered and taken into possession vide mashirnama, Exh. 5-C. The articles allegedly belonging to Tayab were also taken into possession vide mashisnama, Exh. 5-D. Those articles were two cotton matresses, one cotton bed-sheet, one cotton pillow and one cot interwoven with rope, which were all used articles. The same day Samiuddin pointed out the house bearing No. C D-12 in AI-Falah Housing Society, Drigh Colony, Karachi, which was searched in the presence of Mohammad Rafi, a mashir, and the occupant Wahab, cousin of Tayab. From a suitcase some letters, envelopes, a photo album, a tele phone index directory and ten membership cards of Pashtoon Students Federation were recovered and seized vide mashirnama, Exh. 9-C. Since Tayab was not present, his cousin Wahab took the police party to PAF Base at Drigh Road, from where he was arrested. Kazi Pervez Iqbal that very morning had left for Muscat by a PIA flight and on his return he was arrested. Two of the acquitted accused, namely, Syed Mahmood and Muhammad Hussain, were arrested from Malakand and PIA Colony res pectively while Nadir Ali from Sargodha. On 5th December 1974, Room No. 47-A was again opened and from there three envelopes, marked 5-E, 5-F and 5-G, were recovered and taken into possession ride mashirnama, Exh. 5-H. They were sent to the handwriting expert but the opinion is not relevant, for it relates to the handwriting of the acquitted accused Syed Mahmood. Samiuddin volunteered to confess and his confession was recorded on 10th December 1974, by Mr. .Ziaul Islam. S.D.M., Malir, Karachi. Before conclud ing the investigation, applications marked Exh. 18-A being one for the allot ment of a staff quarter, and Exh. 18-B, purporting to be an application for employment by Tayab alongwith other connected documents were seized from the PIA office.

4. The substance of accusation was read on 2nd January 1975. It recited that the explosives were brought by Syed Mahmood and Nadir Ali and stored in the room of Muhammad Husain at Quarter No. 23-A, PIA Colony, Airport, Karachi, from where the said explosives were subsequently removed to Quarter No. 47-A of the PIA Colony, which quarter was in joint possession of the three appellants. They were, therefore, accused of being in possession of and having control over the said explosives, which was an offence under section 5 of the Explosive Substances Act, "by itself or by aid of section 6" of the said Act. The appellants and those tried alongwith them pleaded not guilty and claimed to be tried.

5. Kazi Pervez Iqbal admitted having resided in Room No. 47-A along with Samiuddin and Tayab. He also admitted that there was a quarrel between him and Samiuddin on 29th November 1974. He denied bearing the expenses of Tayab but admitted that his bedding lay in his room. He denied any knowledge about the explosives and stated that he was on duty and knew nothing about the explosives. He also stated that the room had not been allotted to him till then, nor was any amount being deducted from his salary as rent of the room. He further admitted that there was an electric point in the room, which was used for cooking on a beater but there was no kitchen. When confronted with the confession of Samiuddin he stated that it was absolutely false. Again, when a portion of the confession where Samiuddin had stated that he was told by him to deliver the box to Tayab, was put to him, he stated that it was false. He also stated that Samiuddin being annoyed over the quarrel with him, had implicated him in the confes sion with a view to save himself. In an answer to the question as to whether he would like to state anything else, this is what he gave out:- "On 29-11-1974 I was to fly to Muscat at 8-15 a.m. Under orders I have to report at Briefing Room two hours before the flight. Since I had to go early I had asked Samiuddin to prepare tea. He did not prepare tea. Samiuddin is a friend of my brother and I accommodated him in my house because he had come to seek a job at Karachi. I had asked Samiuddin .why he had not prepared tea whereupon he became rude to me. There was verbal altercation between us. In the meantime the official vehicle came to pick me up and I left for Muscat. Co accused Tayab used to reside with co-accused Muhammad Hussain, but Muhammad Hussain left for Peshawar on account of transfer. Muhammad Hussain, who was my friend, had requested me to accommodate Tayab in my room. This was about four months before this case. I accommodated him in the room. The other reason for my accommodating accused Tayab was that in connection with my .duties I bad to go out of Karachi often. Whenever I used to go out co-accused Samiuddin and Tayab used to reside in that room- I do ,not know what they have been doing in my absence. I have no con cern with this case, nor do I accept any liability. On the morning of 29-I1-1974 when Samiuddin did not prepare tea I wanted to prepare it myself. I asked Samiuddin where was the stove, because the same was not available in the room. Samiuddin replied that the stove had been stolen."

6. Muhammad Tayab denied his residence in Room No. 47-A and so also the seizure of explosives from that room. He denied the bedding to be his and as for the envelope, Exh. 5-G, which bore the address of Room No. 20-A but was redirected by the postman to Room No. 47-A, he stated that he know of no reason as to why it was so redirected by the postman. He also denied having asked Samiuddin to redirect his mail. He alleged -enmity with Samiuddin over a loan of Rs. 100, which he had not paid and assigned it as a reason for Samiuddin to implicate him for bringing the ,explosive to the room. As for the address written in ink on Exh. 18-B, he .denied that it was in his hand and attributed the insertion to the police. He pleaded enmity against Azizur Rehman for having opposed him in the election of the College Union. He denied the contents of the confession relating to his having threatened the stenographer .of the Employment Office. PTA, to blast the building with bombs. In defence, he examined Abdul Wahab.

7. Samiuddin admitted having resided with Kazi Pervez Iqbal and Tayab in the same room, but denied that he had quarrelled on the morning ,of the day of incident. He also denied that Sadiq Shah had come to the room after Kazi Pervez Iqbal had left but stated that he had come during the quarrel and sympathised and offered to accommodate him in his own room. He denied that Sadiq Shah wanted to smoke but he prevented him from doing so. Again he also stated that the assection that he kept silent when Sadiq Shah jokingly asked him if he had kept bombs in the room, was false. In regard to pointing the box, he stated that while he was proceeding from the bath-room to his room, he saw two persons standing outside the room, whom he came to know later as Ghazanfar Ali and Afzal Ahmed, whereafter Nazir Ahmed arrived and all the three then told him that they had come to -search the room. Sadiq Shah was also with them, and it was he who had pointed out the card-board box. He denied knowledge of the contents of the box. He admitted having pointed out the bedding of Tayab, which was then lying in Room No. 47-A. He admitted having informed Nazir Ahmad and the others that the explosives were brought by Tayab because Kazi Pervez lqbal had told him to ask Tayab to take away his things that is the bedding and the card-board box, which were later seized. He admitted having pointed out Tayab, who was then arrested. As for redirecting the mail of Tayab, he stated that he had not gone to the post office for that :purpose but had instructed the postman to redirect the mail to Room No. 47-A. He denied having received the letter, Exh. 5-E. He admitting having confessed before the Sub-Divisional Magistrate and further stated that the confession was true except to the extent that Kazi Pervez lqbal did -not bear the full expenses of Tayab and that Tayab had not removed his effects in the morning but had taken them away in the evening. He also admitted that there was no kitchen in the room and that Kazi Parvez Iqbal bad given to him a cheque for Rs. 800 to be cashed. He admitted that the box was in the room but denied any knowledge about its contents. Lastly he stated that he had no enmity with any witness but asserted; that it was Sadiq Shah who had brought out the box and delivered it to the police. He led no evidence in defence.

8. The learned Judge after appraising the evidence held that there wag, total absence of evidence against Muhammad Hussain, Nadir Ali and Syed Mahmood and, therefore, acquitted them. The learned State counsel also conceded that no case was made out against them.

9. As for Samiuddin, the finding is that he knew that the explosives were kept in Room No. 47-A, and therefore, he was held to be in possession of the said explosives. As for the confession made by him, the learned Judge held that it was made on oath without any warnings, but since Samiuddin ha& admitted having confessed it should be declared as part of his statement in Court under section 342, Cr. P. C. As against Tayab, the learned Judge held that he resided in Room No. 47-A with Samiuddin and Kazi Parvez lqbal. He further held that it was Tayab who had brought the explosives and kept it in the room. Lastly as against Kazi Parvez Iqbal, the learned Judge held: that admittedly he was in occupation of the room and as for the knowledge in regard to the explosives, this is what the learned Judge concluded :- "For all such reasons I am of the view that accused Kazi Parvez Iqbal had full knowledge in regard to the storing of the explosives in the room and his permitting the storage of explosives is by itself proof that he exercised control over the same. If he did not mean to exercise control, it is inconceivable that the other inmates of the room could have kept the explosives in the room." In reaching the above conclusion the learned Judge took into consideration the confession of Samiuddin. In the result, he convicted the three appellants, as aforestated.

10. We would now advert to the case of three appellants separately. We would first take up the case of Kazi Parvez Iqbal, against whom the evidence is that he was living in Room No. 47-A as the prospective allottees alongwith Samiuddin and Tayab. Apart from it, there is no direct evidences: but the learned Judge has, on the basis of the statement of Samiuddin under section 342, Cr. P. C. drawn certain inferential conclusions to sustain con viction. Admittedly Kazi Parvez Iqbal had left for Muscat early in the morning and was not present at the time of seizure of the cardboard box containing explosives. The question then for consideration is as to whether be could be liable jointly with the other two for being in possession of then box with the knowledge that it contained explosives. At this juncture we would like to point out that the learned Judge was also conscious of the requirement about knowledge while discussing his case. This is what the learned Judge held: "Since Kazi Parvez Iqbal was in occupation and possession of the room in question and was also the most important person living in that room, for the reason that Samiuddin and Tayab were living there at his sufferance, the inference in my view in regard to possession or control of explosives by him could be legitimately drawn if he is shown to be having the knowledge about the explosives lying in the room."

11. The conclusion as to knowledge was solely drawn from the confession, which was treated as part of the statement under section' 342, Cr. P. C. It may here be recalled that the confession was discarded and hence could not otherwise be legally admissible in evidence, but Samiuddin owned the contents of the confession except in two respects and, therefore, it was treated as part of the statement under section 342, Cr. P. C. It was urged by Mr. Muhammad Hayat Junejo on behalf of Kazi Parvez Iqbal that the con fession, which is now being treated as statement of Samiuddin under sec tion 342, Cr. P. C. cannot be used against Kazi Parvez Iqbal by pressing into service section 30 of the Evidence Act. In support of his contention, he relied on Akhtar Gul v. The State (P L D 1960 Pesh. 170 ) and Rasul Bux v. State (P L D 1960 Kar. 956). In the case of Akhtar Gul, the conviction under section 498, P. P. C. rested on the state ment of Mst. Zohra which was recorded under section 342, Cr. P. C. An objection was taken that section 30 of the Evidence Act could not be pressed into service, for that statement was not proved as required by that section. The objection prevailed and it was held that the statement could only be used against its owner as his admission under section 21 of the Evidence Act at the trial but not against the co-accused. In holding so, Abdul Hamid, J. relied. on the case of Mahadeo Parshad v. King-Emperor (A I R 1923 All. 322), Tahsinuddin Ahmad and" others v. Emperor (A I R 1940 Cal. 250), Re: Marudamuthu Padayachi (A I R 1931 Mad. 820 ) and Mst. Samitra v. Emperor (A I R 1940 Nag. 287). The learned ,fudge did not follow the view expressed in William Cooper v. Emperor (A I R 1930 Bom. 354) and Dial Singh v. Emperor (A I R 1930 Bom. 354) essentially for the reason that the confession contemplated by section 30 of the Evidence Act was obviously one, which was recorded under section 164, Cr. P. C. and not "admissions of offences on interrogation" under section 342, Cr. P. C., the incorrectness of which the co-accused had no opportunity to establish. The cases which were followed turn on the question as to whether the statement of the accused implicating himself and the others recorded under section 342, Cr. P. C. could be used against the co-accused. One such case, namely Re: Narydanythu Padayachi needs consideration, for the word 'proved' has been construed to mean m relation to the stage of the trial as is clear from the following observations:- "Section 30 creates a very marked exception to the fundamental principles of the criminal law and as such must be strictly construed in favour of an accused person. The word " 'proved' in section 30 means proved= before the case for the prosecution comes to an end, either proved in the course of the prosecution case or proved in some proceeding' previous to the trial. A confession of accused made from the dock in the magisterial proceed ings admitting his own guilt and accusing accused cannot be considered by the Court as against accused" It would be of advantage to consider the cases which have been distinguished by Abdul Hamid, J. In the case of William Cooper conviction rested on the written statement filed by one of the accused incriminating himself and the co-accused after the close of the prosecution case and the question arose as to whether such statement could be used against the co-accused within the meaning of section 30 of the Evidence Act. It was held that the language of section 30 does not justify a distinction between a confession, made by an accused person before the trial and in the course of the trial and, there fore, such statement is admissible. In reaching this conclusion, the question of prejudice was not taken into consideration while in Red Marudamuthu Padayachi it was the prime consideration. Again in the case of Dial Singh, one of the accused made a confession at the close of the prosecu tion case implicating himself and the outer accused. The question arose as to whether it could be used under section 30 of tae Evidence Act against the ,co-accused and it was held that the statement must be regarded as proved within the meaning of section 3 of the Evidence Act, and, therefore, it could :,be taken into consideration. This is the line of reasoning adopted: "If a confession is made before the Court itself it 'is a matter before it' and the Court must believe it to exist. It must, therefore, be said to be 'proved'. A fact can be proved not only by 'evidence' was defined in section 3, Evidence Act, but also by other matters before the Court. A confession recorded by the Court itself would not be 'evidence' but would be a 'matter before the Court'. We are, therefore, of opinion that the language of section 30, Evidence Act, does not justify a distinction between a confession made by an accused person before the trial and in the course of the trial." The view taken in In re: Marudamuthu Padayachi was not followed, because' the definition of the word 'proved' in section 3 was overlooked. It cannot be denied that the word 'proved' must be given its meaning as defined in section 3 of the Evidence Act, but can a piece of prosecution evidence be used against a co-accused if he had no chance to rebut it? In fairness to the accused, such admission of evidence will be against the principle of justice and it is no consolation to say that the evidence will be hardly of any value. One other case which we have noticed but was not cited at the Bar is In re: Velu Naicken and another (A I R 1939 Mad. 737). In that case, one of the accused gave a state ment at the time of the preliminary inquiry in open dock in the presence of another, implicating himself and the other which was held to be admissible in the subsequent trial as it stood proved by the Magistrate's verbatim record under section 287, Cr. P. C. against the other accused jointly tried. In that case as well the word 'proved' was construed in relation to the stage of the trial without recourse to its meaning as given in section 3, Evidence Act.

12. Upon consideration of the authorities we are inclined to hold that section 30, Evidence Act, does not specify the form, the confession may take It may be judicial or extra-judicial. Judicial confession is one which is recorded in the manner laid down by sections 164 and 364, Cr. P. C. while the extra-judicial confession may take the form of a document or other statement. Such document may be filed as the statement made in the course of the trial. Section 30 provides an exception to the rule that an admission can only be used against its maker under section 21 of the Evidence Act. Therefore, in construing section 30 of the Evidence Act regard must be had to the fact that the confession, which is sought to be used against the co-accused like any other piece of prosecution evidence, must be proved before the prosecution closes its side, so as to provide an opportunity to the co-accused to rebut it. This being the minimum of a fair trial, the key word 'proved' must have relation to the stage of the trial otherwise it cannot be used in evidence against him. Concluding, therefore, the implication cannot be on the meaning of the word 'proved' in section 3 of the Evidence Act.

13. This, however, does not dispose of the question posed for considera tion. The confession, though held to be inadmissible, was proved before the close of the prosecution evidence and later owned by Samiuddin. Therefore, the use of such confession, which has taken the form of a statement, cannot be denied, but the question nonetheless, remains as to its applicability to the others so that it can be termed as pari delicto. If not, then it cannot be used .against the co-accused.

14. Coming now to the facts of the case, the confession by itself no where inculpates the maker. Apart from admitting that he lived in Room No. 47-A, he has thrown the burden on Kazi Parvez Iqbal and Tayab, but nowhere he has implicated himself with regard to the conscious possession of the explosives, or for that matter in having pointed out the box. What he stated is that this box was taken out from the cupboard by Kazi Parvez Iqbal who told him that it should be handed over to Tayab for being taken sway. As for its recovery from the room, he has not stated that it was pointed out by him, but attributed this part to a person who was present alongwith two others who, on search of the room, had recovered the box. Again, in his statement recorded under section 342, Cr. P. C. Samiuddin -denied the knowledge of the explosives in the box. He went to the extent of stating that it was Sadiq Shah who had brought out the box and delivered it to the police. As to who had brought the box, he stated that Kazi Parvez Iqbal had told him that it was Tayab. Therefore, it cannot be denied that the confession is self-exculpatory and if that be so, then it cannot be regarded as a confession, for a confession essentially requires that the make C should also tar himself with the same brush, which is not the case here. Hence it is hardly of any value even against the maker, what to say of other co-appellants. Besides, the confession, which is now being treated as part o the statement, is also not true, far on his own showing, he has stated that in two respects it is not correct. Again in para. 2 of the confession what is stated i9 that three months before Tayab was preparing tea on the heater and at that time he pointed towards the cupboard and warned that no cigarette or lighted article be thrown that side. However, one of the two papers wrapped on the box is dated 17th November 1974, which obviously makes it .clear that if the explosives had been brought three months earlier then it could not have been wrapped with the newspaper of 17th November 1974. According to the confession, Tayab had removed his cot while one such cot belonging to him was recovered from the same room. Again, he stated in 'his confession that the box containing the explosives was recovered as a result of a search and it was not produced by him. These defects substantially .detract from the credibility of such a confession and even on this count it is p valueless.

15. Once the statement of Samiuddin under section 342, Cr. P. C. is excluded from consideration, then the only circumstance that remains against Kazi Parvez Iqbal is that a cardboard box is said to have been recovered at the pointation of Samiuddin from his room during his absence. The cardboard box was wrapped in newspapers and a ribbon was tied around it giving the impression of a box containing a pair of shoes. The question arises as to whether Kazi Parvez Iqbal can be said to have knowledge of the contents of the box to bring his case within the mischief of section 5 of the Explosive -Substances Act, 1908. The box was not concealed but lying under the cot which cannot, by itself, raise suspicion as to its contents. There is also no evidence as to when the box was brought and by whom. On this point, even the accusation is silent. The paper bearing the date '17-11-74' obviously shows that the box must have been wrapped by this newspaper either -on that date or thereafter. It is also the prosecution case that the box was kept in Room No. 23-A which belonged to Muhammad Hussain, from where it was removed to Room No. 47-A. In the circumstances, it is not possible to say with any certainty at what time the cardboard box was brought in the room. The prosecution has failed to exclude the possibility that during the absence of Kazi Pervez Iqbal it could have been smuggled in by Samiuddin himself and hurriedly kept under the cot, for otherwise it is not believable that any person having knowledge of the explosives would lie on cot, under which is kept a box containing explosives, for that is against the instinct of self-preservation. The probability is that if Kazi Parvez 1qbal had knowledge of the contents, he would then keep the box concealed rather than leave it open in that fashion. In the circumstances, it is not possible to infer conscious possession of the explosives within the meaning of section 5 of the Explosives Substances Act. To what extent the head of the family or such other occupants can be fastened with knowledge, was a question con sidered in the Full Bench case of Emperor v. Santa Singh (A I R 1944 Lah.339). Harries, C. J., who delivered the opinion of the Full Bench, held at page 343 of the report as under:- "In my view, possession and control mean something more than mere constructive or legal possession and control. Can it be said for the. purposes of the Criminal Law that a man in fact possesses or has under his control something, the existence of which he has no knowledge It may be said that he possesses it but only on the assumption that a man possesses everything in the house which he possesses. In my view, however, possession and control required to constitute offences under the Explosive Substances Act and Arms Act, must mean con scious possession and actual control. A man must know of the existence of something before he can be said to control it or have it under his control. It must be remembered that under these sections of the Explosive Substances Act and Arms Act, mere possession of incriminating articles constitutes serious criminal offences and there must be in my view mens rea or guilty knowledge before a person can, be convicted of such possession. If a father or house master is to be convicted merely because he is in possession of a house and therefore every thing in it, then -he can be held to be guilty where no mens rea exists and when he is entirely ignorant of the presence of an offending. article. Where a father or house master is ignorant of the existence of the offending article, much less of its presence in his house, it may be difficult or impossible for him to rebut the presumption of his guilt.. If the rule laid down by this Court is to be followed, such a person would have to be found guilty. Such in my judgment can never be the law. , No presumption can be made that the head of a family or house master must know of everything which may be concealed in his house and unless such a presumption can be made, he cannot be convicted on mere evidence of recovery with nothing more. Therefore, in the circumstances of the case we are unable to agree that by the mere occupation of the room Kazi Pervez Iqbal could be fastened with the knowledge of the contents of the box in the absence of any evidence, direct or circumstantial, to lead to that conclusion. If suppose, one of the three occupants steathily kept an article without telling the others, then how can It be assumed that he must have told the other two. Such an Inferential conclusion must follow from the evidence which is lacking. As for not smoking cigarette and lighting the beater, there is no evidence to suggest that anyone of the three smoked cigarettes, nor was any question put to any of the three appellants about it. Equally, in regard to the conclusion as to the non-use of the heater, it was asserted in the confession that the heater was being used, but the learned Judge disbelieved it. Be that as it may, there is no evidence to sustain that Kazi Pervez 1qbal or Tayab had taken any precautions. Again, the knowledge, like other ingredients of an offence, is an element which., has to be established and there cannot be an assumption without any founda tion in regard to it. The reasoning of the learned Judge proceeds upon the assumption that Tayab must have informed Kazi Pervez Iqbal and Samiuddin, which is a supposition and has no legs to stand.

16. The learned counsel for the State drew our attention to the case of State of Bihar v. Amir Hasan (A I R 1951 Pat. 638), in which the facts were that the house which was in two portions was occupied by each of the two brothers and one of them was so sick that he died during the pendency of the proceedings. Several bombs were recovered from the portion of the house in occupation of the respondent. The bombs were concealed at different places and it was, therefore, that conscious possession was inferred, for it was not conceivable that the only male member, namely the respondent, could not have know ledge of the bombs; and in the circumstances he was held to be in conscious possession of the bombs. The facts in the instant case are altogether different, for the room was occupied by at least two other persons and the explosives were found in a box without there being any evidence to infer that Kazi Pervez Iqbal could have known about the explosives. The question of conscious possession has to be determined in the circumstances of each parti cular case and, therefore, the Patna case cannot be a parallel for inferring knowledge in the instant case.

17. Lastly, the learned counsel for the State relied on section 8 of the Suppression of Terrorist Activities (Special Courts) Ordinance 1974 and urged that since the explosives were recovered from the room, which was in his occupation, the onus is on him to establish that he had no knowledge of the explosives. This contention amounts to putting the cart before the horse, for until conscious possession is established, no such presumption can be drawn.

18. Having considered the case of Kazi Pervez Iqbal we would now deal with the case of Tayab. The prosecution case is that he resided in the same room. In support of this fact, the prosecution relies on the evidence of Sadiq Shah, P. W. 3, and Hidayat Ali, P. W.

4. Sadiq Shah resided in Room No. 39-A while Hidayat Ali in Room No. 45-A. Both these witnesses have from their personal knowledge stated that they had seen Tayab living in the same room. Besides the prosecution relies on the envelope, Exh. 5-G, which was redirected to Room No. 47-A and has examined Muhammad Sharif, postman, P. W. 5, to testify that the letter was redirected at the instance of Samiuddin and delivered at Room No, 47-A. The original address on the envelope is that of Room No. 20-A. Again, the. prosecution relies on the application, Exh. 18-B, in which his address is given as Room No. 47-A. In rebuttal, Tayab has examined Abdul Wahab, his cousin who has testified that Tayab resided with him in AI-Falah Society, Drigh Colony, Karachi, during the month of November 1974 and that his belongings were in his house. It may here be stated that some of the articles belonging to Tayab were seized from his house vide mashirnama, Exh. 9-C.

19. Scrutinising the material on record we are constrained to hold that it is not possible to exclude altogether his occupation of the room though it its possible that he may have resided for a few days here and there. Not only is there the evidence of Sadiq Shah and Hidayat Ali who have given information from their personal knowledge but the postman has also stated that his mail was delivered at that address. Exh. 5-G also establishes this fact. There is no rebuttal of this evidence. As for the application, Exh. 18-B, on which the prosecution has relied, the typed address is Room No. 19-A, but the figure '19' appears to have been scored out and the figure '47' has been written. It is not established as to who wrote that and, therefore. this document cannot be regarded as incriminating. The discovery of the effects from the house of Abdul Wahab would not lead to more than this that he must have left his effects at his cousin's place but it does not establish that Tayab did not live in Room No. 47-A,

20. The learned Judge, upon the basis of the statement made by Samiuddin to Sadiq and Nazir Ahmed that it was Tayab who had brought the explosive has given a finding to this effect. Samiuddin himself in his state ment has nowhere stated that he had seen Tayab bringing the box in the room, but that he had deduced it from what Kazi Pervez Iqbal had told him, namely to deliver the box which he had taken out from the cupboard to Tayab. We do not see how such statement can be used against Tayab to incriminate him when the statement is itself-exculpatory and an attempt is made to throw the burden on the other appellants. We have earlier not placed any reliance on it and in the absence of other material, it is difficult to hold on that basis that it was Tayab who had brought the cardboard box. At this stage, we might refer to the accusation, in which there is no mention of the fact that the responsibility of bringing the box was on Tayab. It was at the stage of the evidence that such an accusation was made by Samiuddin. In this view of the matter, the information given to Sadiq Shah and Nazir Ahmed by Samiuddin will have no value. Having held so, the case of Tayab is also on the same footing as that of Kazi Pervez Iqbal. He was not in the room at the time when the box was recovered and the prosecution has failed to establish by any evidence that he had knowledge of its contents.

21. The learned Judge has relied on the evidence of Azizur Rahman who has testified that as the General Secretary of the Union of workers of Hussain Textile Mills, he was participating in a referendum for the election of the collective bargaining agent and at that time Tayab had offered to give him explosives if he had wanted the same in that connection. How could the seized explosives have any connection with what Tayab had offered, is not established on record. Moreover, Azizur Rahman had not disclosed this to, anyone else, and how he was discovered by Safdar Bhatti, S. H. O., Police Station, Landhi, is not apparent from the record. His statement was, how ever, recorded on 30th or 31st December 1974, a month after the seizure of the explosives and six months after the offer. In the circumstances, his evidence can have hardly any value.

22. There now remains the case of Samiuddin. He was in the room and had pointed out the box which was secured in the presence or Sadiq Shah and others. What he stated to Sadiq Shah which aroused his suspicion and thereafter what he gave out to Nazir Ahmed and Sadiq Shah after the box, can lead to no other conclusion but that he had knowledge of the contents of the box. The possibility of the box having been brought at that time has not been excluded by the prosecution and ought it be said that if the other two had knowledge of the contents of the box, it would not have remained at the place, from where it was secured but concealed somewhere else. In his statement, he admits his occupation of the room and the recovery of the box containing the explosives, but has denied the knowledge of its contents which can hardly be believed. There is. therefore, evidence to sustain conviction so far as Samiuddin is concerned.

23. For the foregoing reasons we would maintain the conviction and sentence of Samiuddin and dismiss his appeal. As for Kazi Pervez Iqbal and Tayab, we are of the view that they are entitled to the benefit of doubt and while accepting their appeal, we would acquit them and direct that they shall be set at liberty forthwith unless wanted in some other case. JAMALUDDIN H. AHMAD, J.-I agree. Order accordingly.