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(a) Explosive Substances Act (VI of 1908)‑‑.

‑‑S 5‑‑Possession accompanied with 'reasonable suspicion'‑ Prosecution in order to succeed must establish not merely conscious possession of explosive substance, but must also show that accused person was carrying explosive substance under such circumstances as to give rise to a reasonable suspicion that he was not making it or did not have it in his possession or under his control for a lawful object and that material was to be used for some mischievous and unlawful purpose‑‑Quite a number of factors would be relevant to form a basis for forming such an opinion or to create such a reasonable suspicion‑‑Conduct of apprehended accused immediately before and at the time of his arrest, his links and connections with groups or gangs known for their notoriety, his general reputation in society, his vocation, financial, social and educational standard would contribute, affirm or dislodge initial and prima facie suspicion.

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

‑‑‑S. S‑‑Accused, having explosive substance, worked as labourers and employees of petty contractor who had engaged them for digging an underground water tank‑‑Statement of accused persons that said contractor had planned to use gun powder for blasting bottom rock, remaining un-contradicted and supported by evidence‑‑Held, no case made out against accused as there could be no doubt that they were not carrying material for subversive activities‑‑Accused acquitted in circumstances.

State v. Ahad Sher P L D 1983 SC 235 and Mishal Khan v. The State 1983 P Cr. L J 1628 rel.

Muhammad Ilyas Khan S.P.P. for Appellant.

S.A. Ghaffar for Respondent.

Date of hearing: 4th June, 1987.

On 17th June, 18th June, 1984 at about 0800 Hours in the morning a Police party led by Head Constable Muzaffar Ali and three other Constables left the Manghopir Police Station, Karachi for patrol duty of the area covered by Manghopir Police Station. At about 11‑30 p.m. this party was still on patrol duty in a Taxi and when they reached near the Wagon Stand, they noticed four persons at the Kaneez Fatima Ground. P.W. 2 Muzaffar All who is the complainant in this case, challenged them and they stopped. They were searched and according to Head Constable Muzaffar Ali some gun‑powder of black and white colour contained in a plastic bag and some Sulphur and Sodium‑Nitrate were recovered from the possession of the two apprehended accused, who disclosed their names as Azeem Khan son of Saifur‑Rehman and Anzar Khan son of Mir Agha Jan. The other two, it is alleged slipped away from the scene when the Police party was busy in searching the accused now in Court. They could not be apprehended by the Police. Muzaffar Ali lodged the complaint/F.I. R. (Ex.7) and Maqbool Hussain Shah investigated the case and challaned the accused. They stand charged under section 5 of the Explosives Substance Act.

2. The prosecution have examined Zeledar son of Lal Saman Khan, P.W.‑3, Ex.4, who is a Taxi Driver and in whose taxi the Police party was travelling at the relevant time. The prosecution has also examined Constable Mohammad Hanif, P.W.‑4, Ex.5 and Constable Abbas Khan, P.W.‑5, Ex.6. The above three witnesses are the witnesses of the scene of incident and have supported the version of the complainant Muzaffar Ali P.W.‑2. The material was sent to the Explosive Expert and Aijazul Haq, P.W.‑7, Ex.8. has examined this material and has given an opinion that "in my opinion gun powder and safety fuse are explosive materials and may prove to be dangerous to life. Sodium nitrate and sulphur are ingredients for preparation of gun‑powder. If mixed, they become explosive material."

In cross‑examination he has further stated "it is correct that this material is gunpowder also used for breaking the big rocks by the labourers in the hillocks."

3. The accused have examined themselves in defence and have denied the recovery of this material from their possession. Their side of the story may be reproduced below in their own words. Accused Azeem Khan has stated as follows:‑

"I was employed with the Contractor Rehmat Jan, who had taken the contract for digging the water tank at Kaniz Fatima Town. The water‑tank was to be constructed on a Hillock in Kaniz Fatima Town. The place is rocky and after we had dug 3 feet deep hard rocks prevented us from further digging. The contractor told us that he would make arrangements for breaking the rocks the next morning. After this talk we retired to sleep on the site of work. After Esha Prayer the Thekedar in the company of the Police appeared and asked us to accompany him to the Thana. After reaching the Thana the Contractor disappeared and the Police put us in the Police Lock‑Up. Nothing was recovered from our possession, and we have been falsely implicated."

4. Mr. S.A. Ghaffar, learned counsel for the accused has taken pains in pointing out the contradictions omissions and inconsistency in the statements of the prosecution witnesses and has tried to show that the Police had first apprehended Rehmat Jan and Lal Zada, Contractors and later on let them off and have trapped the two present accused as substitute in place of the real culprits.

5. In my opinion it would not be necessary to examine in depth the contention of the learned counsel for the defence because even on technical grounds no case seems to have been made out against the present two accused within the meaning of Section‑5 of the Explosives Substance Act, which for ready reference may be reproduced below: ‑---

"Punishment for making or possessing explosives under suspicious circumstances; .Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable with imprisonment for a term which may extend to 14 years."

6. It is obvious that in order to succeed the prosecution must establish not merely the conscious possession of the explosive substance, but must also show that the accused persons were carrying the explosive substance "under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object."

7. As a first step the Court has to be satisfied not merely about the recovery of the material from the "possession" or "control" of the accused, but also that they were alive to and fully conscious about the presence of such material on their person or on the premises or vehicle where it was kept or stored by them. But this is not enough, the further requirement is that the circumstances attending the incidence of recovery should be such as to induce any reasonable man to presume that the material is to be used for some mischievous and unlawful purpose. Quite a number of factors would be relevant to form a basis for forming such an opinion or to create such a "reasonable suspicion".

8. The conduct of the apprehended accused immediately. before and at the time of his arrest, his links and connections with groups or gangs known for their notoriety his general reputation in the society, his vocation, financial, social and educational standard; all the above factors would contribute, affirm or dislodge the initial and prima facie suspicion. A person may be found roaming around near sensitive installations at odd hours loaded with explosives. This is not a normal behaviour of a law abiding citizen. If a person is apprehended in such a situation, there would be grounds for a "reasonable suspicion" against him. The burden would now shift to the accused to dislodge this initial suspicion and explain his conduct. On the contrary if a person is a trader and deals in fire works or a person is a querry man and blasts big stones to collect broken stones from a querry, he may be found to be in possession and control of the gun powder but the element of "reasonable suspicion", would be lacking in his case and he would not be booked under Section‑5 and would not be called upon to discharge the burden of proving himself innocent on account of mere possession. In short what the Section pastulates is possession accompanied with a "reasonable suspicion", that the material was likely to be used for subversive and illegal purposes.

9. In the present case assuming that the two accused were not made as escape goat for the absconder Rehmat Jan and were arrested from the Kaniz Fatima Ground near the Bus Stand and also assuming that the explosive material was recovered from their possession, the fact remains that the accused are labourers and are employees of the D petty Contractor Rehmat Jan, who had engaged them for digging an under ground water tank.

10. The statement of the accused reproduced in para. 3 above clearly shows that Rehmat Jan had planned to use the gun‑poweder for blasting the bottom rock which is usual and normal mode adopted in similar situations every day. The version of the accused remains un-contradicted. Indeed it is supported by the complainant Muzaffar Ali P.W.‑2 when in an answer to a question in cross‑examination he has stated as follows:‑----

"It is correct that I had given the following statement before the Investigating Officer on the next day:‑

There is no doubt in my mind that these accused, who are labourers working for the petty contractor Rehmat Jan, were not carrying this material for any subversive activity. No case is made F out against them and respectfully following the dictum laid down by the Supreme Court in the case of State v. Ahad Sher I would, therefore, acquit these accused. The accused are already on bail. Their bail bond and surety bonds stand discharged. The relevant portion of the judgment in the case of State v. Ahad Sher reported in P L D 1983 SC 235 may be reproduced:‑----

"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 or duty. For instance 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 their manufacture of ammunition of explosive 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 be in possession of the explosive substance as well as his conduct and or behaviour at the time of after his being found in possession of explosive material."

Reference may also be made to another case i.e. Mishal Khan v. The State 1983 P Cr. L J 1628 in which Ajmal Mian J. made the following observations:‑---

"12. There cannot be two opinions that in order to attract section 5 of Act, 1908 the prosecution has to prove two things, namely (i) that the accused person makes or has in his possession or under his control any explosive substance, (ii) under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object. Furthermore, that in order to attract section 8 of Act of 1975 i.e. the Suppression of Terrorist Activities (Special Courts)Act, 1975, the prosecution is to prove either (i) that the accused person is found to be in possession of or to have under his control any article or thing which is capable of being used for or in connection with, the commission of any of the offences mentioned in the Schedule to the Act or (ii) that the accused person was apprehended in such circumstances, which tend to raise a reasonable suspicion that he had committed such offence.

In the instant case in our view the prosecution has not been able to prove that the appellant Misal Khan was found in possession or control of the explosive substance in such circumstances as to give rise to reasonable suspicion that he did not have it for a lawful object. It has come on record that appellant Misal Khan was engaged in the work of extracting stones from querry and that the other four appellants were his labourers. The quantity of the gun powder mentioned in the seizure memo. Exh. 8/A is only 10 Kilos i.e. about 22 pounds. Under rule 83 of the Explosives Rules, 1940 even a private person for his private use and not for sale can keep gun powder not exceeding 30 pounds without a licence. In the instant case even if it is to be held that appellant Misal Khan was found in possession of about 22 pounds of gun powder simplicitor possession would not attract section 5 of Act of 1908 without further proof of the fact that he was found in possession in such circumstances as to give rise to a reasonable suspicion that he did not have it in his possession or under his control for a lawful object.

It may be pointed out that the use of the word "reasonable suspicion" in the above section 5, has provided an objective criterion and has excluded the possibility of pressing into service above provision for an imaginary or unfounded suspicion. We may also observe that in certain circumstances mere possession or control of an explosive article may raise a reasonable suspicion that the possession or control is not for a lawful object. If a person employed as an account clerk in a Government Department is found in possession/ control of 10 hand bombs/plastic bombs at his residence. In such a case, the possession/ control of the above bombs itself may furnish reasonable suspicion as to attract above section‑5. Nor in the instant case section 8 of Act of 1975 is attracted to for the reasons already discussed hereinabove in paras. 6 to 9, namely, that the recovery of the gun powder from the appellant Misal Khan is shrouded with doubts and, therefore, the initial burden under above section‑8 has not been discharged by the prosecution."

In my humble opinion the facts of the present case are fully covered by this dictum in the above two cases and the accused are entitled to acquittal.

M.Y.H./S‑60/K Appeal accepted.

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