MUHAMMAD ARSHAD Versus THE STATE
ABDUL MAJEED TIWANA, J. ‑‑‑ Muhammad Arshad appellant alongwith Mst. Sarwary accused was tried by the learned Judge, Punjab Special Court (Suppression of Terrorist Activities) No.VI, Faisalabad, on account of their having been found in possession of two hand‑grenades and certain live cartridges of rifles of two calibres punishable under sections 4 and 5 of the Explosive Substances Act; 1975 and under section 13 of Arms Ordinance, 1.965 when on 24‑5‑1988 at about 11.30 a.m. Mst. Sarwary co‑accused was seen going to the house of Muhammad Arshad appellant, carrying a bag containing the aforesaid illicit arms and ammunition, while on the same day at 7‑30 p.m. Muhammad Arshad appellant was seen scaling over the wall of his own house with the same hand bag in his hand, containing the aforesaid articles. On the conclusion of the trial, vide order dated 21‑5‑1990, where Mst. Sarwari co accused was acquitted on benefits of doubt, Muhammad Arshad appellant was convicted under section 5 of the Explosive Substances Act, 1908 as well as under section 8/9/13 of the Arms Ordinance, 1965, read with sub‑clause(c) of the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975.
2. The main contention of the appellant's counsel is that his client was employed as a domestic servant of a Zimindar at village/Chak No.32‑GB near Amirpur Bungallow and he was falsely implicated in this case on account of his relationship with Gama Mochi whose faction in the village was on inimical terms with the group of Salim Arian which had, on the day of alleged incident, exchanged fire and cross‑cases were registered against each side. According to the learned counsel, no expert was produced by the prosecution to prove that the grenades and the fuses were really in working order, capable of being exploded and in the absence of the expert opinion the appellant could not be convicted and sentenced under the Explosive Substances Act. He submits that both the witnesses were partisan and in the background of serious rift between two factions, no reliance could be placed on their testimony and the police planted on the appellant the ammunition provided by the Arian group.
3. The learned State counsel has tried to support the impugned judgment.
4. We find a good, deal of substance in the above contentions of the learned counsel for the appellant. It was necessary for the prosecution to prove by the expert evidence that the two grenades in question were really in working order and could be exploded. Failure to do so would take the case out of the pale of the Explosive Substances Act. Muhammad Hanif P.W. was complainant in the firing case against the Mochi Group, of which appellant's brother Ashiq was a member and one of the accused. He was obviously an interested witness. Muhammad Afzal P.W. was not a witness of recovery. His testimony about the recovery and seizure of incriminating articles rested on hearsay. The testimony of S.I. Manzoor Hussain alone was not sufficient to entail conviction as he was naturally interested in strengthing the main firing case, of which this case was an off‑shoot.
The appeal is therefore accepted, the conviction and sentence of the, appellants are‑set aside and he is acquitted on benefit of doubt.
SA./M‑169/L Appeal accepted.