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(On appeal from the judgment of the Peshawar High Court, dated 17-12-1979, passed in Criminal Appeal No. 241 of 1979).

(a) Constitution of Pakistan (1973)-

-- - Art. 185 (3) read with Explosive Substances Act (VI of 1908), S. 5-Leave to appeal against acquittal-Granted to consider true interpretation of S. 5 of Act and also question whether burden of proving lawful possession of explosive substance was on accused or prosecution.[Burden of proof-Appeal against acquittal].

(b) Explosive Substances Act (VI of 1908)-

-- S. 5-Possession of explosive substance-Ingredients to be- proved for establishing offence under S. 5-Facts established on record showing accused to be a proclaimed offender and that he was carrying a hand grenade, in nature of a bomb, highly dangerous and patent weapon, manufactured purely for military use-Antecedents of accused and nature of explosive substance in his possession-Held, sufficient to raise a reasonable suspicion that accused was not carrying such substance for a lawful purpose-Accused himself failing to give any plausible explanation for being in possession of hand-grenade-Order of trial Court convicting and sentencing accused under S. 5-Held, justified.

Sahibzada Akhtar Munir, Additional Advocate-General and M. Qasim Imam, Advocate-on-Record for Appellant.

Said Baig, Advocate Supreme Court with Nur Ahmad Khan, Advocate-on-Record for Respondent.

Date of hearing : 17th November, 1982.

ASLAM RIAZ HUSSAIN, J.--This is a State Appeal against the judgment of a Division Bench of the Peshawar High Court dated 17-12-1979, acquitting Ahad Sher of the charge under section 5 of the Explosive Substances Act, 1908.

2. The facts leading to the appeal are, briefly, that the S. H. O. Police Station Budabair received information that Ahad Sher, respondent who was a proclaimed offender, was present at the house of his uncle Gulab Sher in Village Budabair. The house of Gulab Sher was raided by the police and the respondent was found present in the Baithak of the said house with a licensed '12 bore gun and four live cartridges. He was also carrying a plastic bag round his neck which had a hand-grenade in it that too was taken into possession. The hand-grenade was sent to the Ammunition Technical Officer, Peshawar for examination. The latter reported that although the hand-grenade without detonator was inserviceable, as the safety fuse having become ineffective due to dampness, yet the hand-grenade itself was still capable of being exploded. The accused was put up for trial for an offence under section 5 of the Explosive Substances Act, 1908 (hereinafter called the Act) before the learned Special Court, N.-W. F. P., Peshawar, who found him guilty of the said offence and sentenced to 5 years' R. I.

3. Feeling aggrieved he filed an appeal before the High Court which accepted the same and acquitted the accused vide the impugned judgment on the ground that all the ingredients of the offence had not been established by the prosecution. The learned Judge in Chamber observed that the mere possession of an explosive substance is not an offence under the Act and that to bring home the charge against the appellant, under section 5 of the said Act, it is not enough for the prosecution to prove merely that accused was in conscious possession of an explosive substance, but it must also prove that the incriminating object was recovered from his possession in such circumstances as to give rise to a reasonable suspicion that he did not have its possession for a lawful object. Reliance in this behalf was placed on a case from the Indian Jurisdiction, i.e. Rajani Kanta Mandal v. The State of Bihar A I R 1959 Pat. 314.

The State filed a Petition for Leave to appeal against the acquittal of the respondent and leave was granted on 30-12-1980, to consider the true interpretation of the said section as also the question as to whether the burden A of proving that the explosive substance was (or was not) being kept in possession for a "lawful purpose" was placed by law on the accused or the prosecution.

4. We have heard the learned counsel for the appellant-State as well as the learned counsel for the respondent at length and have carefully considered .the relevant provisions of law. For a clearer understanding of section 5 of the Act it would be appropriate to reproduce the relevant portion thereof :

"Any person who . . . . . . knowingly has in his procession . . . . any explosive substance, under such circumstances as to give rise to a reasonable suspicion . . . for a lawful object, shall, unless he can show that he . . . . . had it in his possession . . . . . . . . . . for a lawful object, be punishable . . . . . . . "

Even a plain reading of this section would show that the ingredient required to be proved for establishing an offence under this section are first 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 substances, say a hand-grenade, is planted t on anyone 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. As to the second ingredient the legislature, obviously deemed it necessary to ensure that each and every person having an explosive substances 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 sub- stances in the course of their vocation or duty. For instances, persons having the manufacture of fire-works 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 or 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 or the quantity of the substance, the time and place where the person in question was found, in its possession, the vocation, profession, status and he antecedents of the person found to be in possession of the explosive sub- stance 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 he was not carrying it for a lawful purpose, then the law shifts the burden of proof on to the accused and it is, then, for him to dislodge the suspicion and show that he was carrying the substance in question for a lawful purpose.

In the present case the facts established on the record are that Ahad Sher respondent was a proclaimed offender who was required by the police in connection with some other offences and that he was carrying on his person a hand-grenade which is in the nature of a bomb. The substance found in possession of the respondent being a highly dangerous and patent weapon, manufactured purely for military use and the possession of which a civilian cannot even be issued a licence. The antecedents of the appellant and the nature of the explosive substance of which he was found to be in its possession were sufficient to raise a reasonable suspicion that be was not carrying it for a lawful purpose. The respondent himself could not give any plausible explanation for being in possession thereof. Consequently the learned trial Court was justified in convicting and sentencing him under section 5 of the Explosive Substances Act.

In view of the foregoing discussion the State Appeal is accepted and the judgment of respondent's acquittal recorded by the High Court is set aside.

S. Q. Appeal accepted

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