2011 P Cr. LJ 162
[Quett a]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
SHAM S -ULLAH ---Appellant
Versus
THE STATE ---Respondent
Criminal Jail Appeal No. 14 of 2009, decided on 23rd August, 2010.
(a) Explosive Substances Act (IV of 1908) ---
----Ss. 3 & 4---Explosives Act (IV of 1884), S.4(1) ---Penal Code (XLV of 1860), Ss.324/34 -
--Qanun -e-Shahadat (10 of 1984), Art.40 ---Causing explosion likely to endanger life or
property, attempt to cause explosion, or for making or keeping explosive with intent to
endanger life or property, attempt to commit qatl -e-amd, acts done by several persons in
furtherance of common intention ---Appreciation of evidence ---Benefit of doubt ---Burnt
wire taken into possession by the prosecution from place of occurrence was not an
explosive within the , meaning of S.4(1) of Explosives Act, 1884 ---Allegations as to use of
said wire as explosive could not be ascertained as the said wire was not sent to ballistic
expert, especially in the absence of anything recovered from place of occ urrence ---
Statements of witnesses showed that they only saw the accused running from the place of
occurrence but did not see them making/causing the explosion ---Neither any recovery
memo of the pistol was prepared nor empties and the pistol were sent to th e ballistic expert
to prove the use of pistol in the commission of crime ---House of the complainant was
located in a populous area yet no independent witness was associated from the locality ---
Testimony of witnesses was not corroborated by confidence inspi ring evidence ---
Statements of witnesses had to be examined with utmost care and caution in case of offences
of capital punishment ---Belated and uncorroborated disclosure of the accused could not be
made the basis of his conviction as the same was not admis sible under Art.40 of the Qanun -
e-Shahadat, 1984 ---Identification of the accused in odd hours of the night was doubtful ---
False implication could not be ruled out in view of the fact that there was civil dispute
between the complainant and the accused ---Prosecution could not prove its case beyond
shadow of doubt ---Impugned judgment was set aside and accused was acquitted of the
charge.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Art. 40---Disclosure of accused ---Admissibility ---Belated and uncorroborated
disclosure of the accused was not admissible under Art.40 of the Qanun -e-Shahadat, 1984.
Mrs. Noor Jehan Kahoor for Appellant.
Amanullah Langove for the State.
Date of hearing: 28th April, 2010.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. ---This ap peal has been presented against judgment
dated 16 -3-2009, passed by Sessions Judge, Loralai, whereby the appellant has been
convicted and sentenced under section 4 of the Explosive Substances Act, 1908 to suffer
seven (07) years' R.I. with fine of Rs.10,00 0 in default whereof to further undergo SI for one
month. He was further convicted and sentenced under section 324, P.P.C. to suffer two (02)
years' R.I. with fine of Rs.10,000, in default whereof to further undergo one month's S.I. The
aforesaid sentences were ordered to be run concurrently, with benefit of section 382 -B,
Cr.P.C.
Briefly stated facts of the case are that complainant Muhammad Hashim through written
application Exh.P/1 -A lodged a report to the effect that between the night of 22/23 -10-2008 ,
he, along with his family members, was sleeping in the house. At about 1.30 a.m., he heard
three explosions in the courtyard of the house, at which, he, along with his brother
Kaleemullah and Faizullah, came out and saw two persons were running. It was a lleged that
by means of torch -light, they identified one of culprits as Shamsullah (appellant). In the
meanwhile, appellant also made indiscriminate firing upon them by means of pistol, however,
they luckily saved and thereafter they fled away from the ven ue. Consequently, a case vide
crime No.10 of 2008, under sections 3 and .4 of the Explosive Substances Act, 1908 read
with section 324/34, P.P.C. was registered at Police Station Nana Sahib Ziarat District
Loralai.
After arrest of appellant and completio n of investigation, incomplete challan was filed before
the trial Court and appellant was sent up to face the trial. The trial Court, after framing
charge, recording statements of prosecution witnesses and examining the appellant under
section 342, Cr.P.C. convicted and sentenced him, as mentioned hereinabove, hence, this
appeal.
Mrs. Noor Jehan Kahoor, learned counsel for pauper appellant, argued that there is no
evidence available on record, connecting the appellant with the commission of crime. The
judgment of trial Court amounts to misappreciation and wrong conclusion of evidence, which
is an illegality, thus, he deserves acquittal.
Mr. Amanullah Langove, Advocate, representing the State, opposed the arguments of pauper
appellant's counsel and suppor ted the impugned judgment. He has contended that the
prosecution has successfully proved its case against appellant, therefore, the trial Court has
rightly convicted and sentenced him for the offences.
We have considered the arguments of learned parties counsel and have gone through the
record including the impugned judgment.
It is the case of prosecution that the complainant heard three explosions in his house,
therefore, the F.I.R. was registered under sections 3 and 4 of the Explosive Substances Act,
1908. To constitute the act of explosion, it is necessary to understand the word `explosives',
which has been defined in sub -clause (a) of subsection (1) of section 4 of the Explosives Act,
1884 as under: -
"4. Definitions. In this Act, unless there is s omething repugnant in the subject or
context: -
[(1) "Explosives": -
(a) Means gunpowder, nitroglycerine, nitroglycol, gun cotton, dinitrotoluence, trinitro
toluene, picric acid, dinitro -phenol, trinitro resorcinol (styphnic acid), cyclo
trimethylence tr initramine, penta erythritol -tetranitrate, tetryl, nitroguanidine, lead
azide, lead styphynate, fulminiate of mercury or any other metal, diazo dinitro phenol,
coloured fires or any other substances whether a single chemical compound or a
mixture of substa nces, whether solid or liquid or liquid or gaseous used or
manufactured with a view to produce a practical effect by explosion or pyrotechnic
effect; and
(b) Includes: --
(i) Chemical compounds, compositions or mixtures of which will produce, upon
relea se of its potential energy, a sudden outburst of gases, thereby exerting high
pressures on its surroundings. Explosives may be solid, liquid or gas, nitro
compounds or in the form of water gel or slurry;
(ii) Fog signals, fireworks, fuses, rockets, percu ssion -caps, detonators, cartridges,
ammunition of all descriptions and every adaptation or preparation of an explosives as
defined in this clause; and
(iii) Such other substance as the Federal Government may, by notification in the
official Gazette, spec ify for the purposes of this subsection.]"
In view above definition, the prosecution has to prove that the explosives were used in the
alleged explosions. In proof of its case, the prosecution has taken into possession a piece of
burnt wire and earth fro m the house of complainant; alleging that the wire was one of the
explosive materials. Considering the contention of prosecution in the light of above
definition, certainly, burnt wire does not come within the meaning of explosive material,
particularly wh en the recovered earth and burnt wire were not sent to Ballistic Expert to
obtain his opinion, therefore, it could not be said with certainty that the 'wire was used in
explosions. Apart from said wire, nothing else has been recovered from the place of
occurrence to establish a use of explosive, hence, the prosecution has failed to prove the
explosions.
Without prejudice to the above, even otherwise, statements of P.W. 1 Muhammad Hashim
(complainant) and P.W.2 Kaleemullah show that they have not witnessed the appellant
making the explosions. According to them, after hearing the explosions, they came out of
their house and saw the appellant along with another running away from the venue. For the
sake of arguments, if their statements are believed, even then mere running by the appellant,
from the place of occurrence, does not constitute the offence.
It is also important to mention here that the prosecution has alleged that the appellant, while
running, has also made ineffective firing and the Investigating Officer has recovered five
empties from the place of occurrence and, after arrest of appellant, a pistol was also
recovered from his possession. It is strange to note here that neither any recovery memo of
the same was prepared, nor the empties along with pistol were sent to the Ballistic Expert to
prove the use of said pistol in the commission of crime. If the statement of Investigating
Officer is believed to the extent of recovery of pistol, then by not sending it to the expert
leads us to the conclusion that the empties do not match the pistol, which was, allegedly,
recovered from the possession of appellant.
The house of complainant is, admittedly, situated in a thickly populated area, but none of the
inhabitants have been arrayed as witness. P.Ws. 1 and 2, who are brother inter se, have
neither witnessed the occurrence, nor have independent corroboration, therefore, their
statements do not inspire confidence to constitute an offence under the provisions of
Explosive Substances Act, 1908. It has been h eld by the apex Court time and again that in
offences, in which capital punishment is provided, statements of witnesses have to be looked
with utmost care and caution. Hence, scrutiny of statements of witnesses in present case
reflects that their testimoni es are not up to the mark to establish the allegation against the
appellant.
The prosecution has heavily relied upon a disclosure, allegedly, made by appellant after about
six days of his arrest, disclosing and pointing out the place of occurrence. In or der to bring
the disclosure within the ambit of Article 40 of the Qanun -e-Shahadat Order, 1984, the
prosecution must establish that (i) the information conveyed by the accused actually led to the
discovery of some fact, (ii) the fact was unknown to the pol ice and it was for the first time
derived from the accused and, (iii) the discovery of the fact must relate to commission of the
offence or connect the accused with the crime. The disclosure, stated to be made by the
appellant, cannot be made basis for his conviction in the case, particularly when such
disclosure was made in presence of a police -officer, that too with considerable delay without
explanation and corroboration from any corner and that no new fact has been discovered in
consequence thereof. Thu s, the same is inadmissible in evidence in view of Article 40 of the
Qanun -e-Shahadat Order, 1984 and is ruled out from consideration.
Even otherwise, the identity of appellant in odd hours of the night is also highly doubtful. It
seems that the complain ant is trying to establish a concocted story only to involve the
appellant to pressurize him on the dispute of land. The complainant has stated in the
complaint that there is a dispute over a piece of land, therefore, in view of such fact, the
prosecution case is full of doubt and false implication of appellant cannot be ruled out.
Thus, in view of what has been stated and discussed hereinabove, we are of the view that the
prosecution has failed to prove the case against appellant beyond any shadow of dou bt.
Resultantly, the impugned judgment dated 16 -03-2009 passed by the Sessions Judge, Loralai
is set aside and appellant is acquitted of the charge. He be set at liberty, if not required in any
other case.
A.R.K./100/Q Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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