STATE Versus MAQBOOL HUSSAIN

ORDER

1. These three accused are being prosecuted for offence under section 5 of the Explosive Substance Act, 1908 on the allegation that 31 grenades, were recovered from the "Jhuggis", in which they were residing. Section 5 of the Explosive Substance Act is as follows:--

2. Section 5. "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 fourteen years:"

2. A careful reading of section 5 would indicate that mere possession of an explosive substance is not enough to sentence an accused with the penalty prescribed therein. The possession or control of the explosive substance must be accompanied by "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." Now what is a lawful object is a question of fact. There can be no better lawful object than the anxiety of a person to arm himself for protection of his person and property. For this purpose he may devise such ways and means as to effectively protect himself. He may according to his sources and means acquire fire-arms gun-powder, other weapons or he may have some explosives, as in the present case, to scare away the attackers or vagabonds in case of emergency. True, the possession of unlicensed arms may invite penalties under different statutes like Arms Act, etc., but surely it would not be an act of sabotage or subversion or terrorism within the meaning of this statute. It is an admitted position in the case that this recovery was made at a time when the whole area where they were residing was a disturbed area and the ethnic and parochial feelings were at its peak and two ethnic groups were at logger head with each other. It is a matter of common knowledge that heavy casualties occurred during those days in that area. A large number of people belonging to one group were killed by use of fire-arms by the other group. In such a disturbed condition if somebody in order to protect himself and ward off these attackers keeps something for his protection I cannot see how it could be an act of terrorism. It is nothing but the biological instinct of a person to protect his life and property. Such appears to be the case here. If at all the story of recovery is to be believed, the grenades, which admittedly were of a very low and meagre potency, cannot be said to have been stored for the purposes of any terrorist or subversive activity.

3. Mr. Abdul Raziq Khan, learned counsel for the accused, has placed a D.B. Judgment of Peshawar High Court in support of the view expressed above. In this case an outlaw was arrested by the police from the `Baithak' of another outlaw. On search it was found that a hand grenade and a detonator were concealed in a plastic bag which he was carrying on his person. The accused was prosecuted under section 5 of the Explosive Substance Act. The accused denied recovery and possession and further pleaded that in any case neither the grenade nor the detonator were in active and serviceable condition. Repelling these contentions the D.B. in appeal reverted to the question of culpability of the accused within the meaning of section 5 even though on facts these explosive material were held to have been recovered from the possession of the accused. The learned Judges of the High Court in appeal against conviction examined the question whether mere possession and recovery of explosive material without positive proof that it was kept for an unlawful purpose would satisfy the requirement of law to convict the accused under section 5. At page 126 of the report it was observed:--

3. "It is on record that the outlaw (Badam Sher) was a cousin of the appellant. And not only the family was having traditional enemies but they also seem to be on the wrong side of law. The possibility that the appellant was having the grenade, a thing not very uncommon in this part of the country for the protection of his own person from his enemies, cannot be excluded. Now no one can deny that protecting one's own person and property is lawful. In fact this is a right which law everywhere gives to an individual. Therefore, it cannot be said, in the absence of circumstances tending to raise reasonable suspicion that he had it not for a lawful object, that the appellant is guilty of an offence under section 5 of the Explosive Substances Act.

4. The words "not for a lawful object" occurring in the section imply an object which is forbidden by law or the execution of which would involve the infringment of some provision of law. It, however, depends upon the particular circumstances of each case as to what is a just ground of suspicion but it must be at least founded on some definite fact tending to throw suspicion on the person involved, and not a mere surmise or information. In the case in hand prosecution has failed to show any circumstance tending to throw suspicion that the appellant was having incriminating articles not for a lawful object. The learned Special Court does not seem to have given due consideration to this aspect of the case. It has rather assumed that it is sufficient for the prosecution to show that an accused was found in possession of an explosive substance. And once this proved it would be for the accused to show that he had it in his possession for a lawful object. This is how the learned Special Court has dealt with it:--

5. The accused was found in possession of a hand grenade with a detonator and he failed to show that he had them in his possession for a lawful object. The burden to prove was on the accused as contemplated by section 8, Supression of Terrorist Activities (Special Courts) Act and he signally failed to discharge it:'

6. It is obvious that the learned Court has proceeded on the assumption and convicted appellant on the ground that since the grenade and detonator were found with the appellant it was for him to prove that the same were in his possession for a lawful object. Thus, the burden to prove was, according to the learned Judge, on the appellant. We feel that this is not a correct view of law as contemplated by section 5 of the Act or for that matter section 8, Suppression of Terrorist Activities (Special Courts) Act. Section 5 of the Act has been dealt with in some detail above and there is no need to reiterate the same. Section 8 of the latter Act however, requires to be examined. This section reads:-

7. Burden of Proof .--Where any person accused of having committed a scheduled offence 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 such offence, or is apprehended, in circumstances which tend to raise a reasonable suspicion that he had committed the offence; unless he can prove that he had not in fact committed the offence"

8. Now plain reading of the above section would show that necessary presumption that he had, and the burden to prove that he had not, committed the offence, would lie on a person only where already accused of having committed a scheduled offence, (i) he is found in possession of, or having under his control, anything which capable of being used for, or in connection with, the commission of such offence, or (ii) he is apprehended, in circumstances which tend to raise a reasonable suspicion that he had committed such offence. But in no case other than this the presumption can be lawfully raised against him or he can be legitimately saddled with the burden to prove that he had not committed the offence under section 5 of the Explosive Substance:'

9. "The conviction of the accused was set aside"

10. This case was appealed before the Supreme Court and the appeal was allowed. The acquittal was set aside and conviction by the Tribunal restored. The judgment of the Supreme Court is reported in P L D 1983 SC 235. Few paras. from this judgment being of fundamental importance must be reproduced:-

11. "(4) Even a plain reading of this section would show that the ingredients required to be proved for establishing an offence under this section are firstly 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 substance, say a hand grenade, is planted 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 roved 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 or a lawful purpose.

(6) 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 offence 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 potent 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 he 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.

12. From the above judgment it is clear that not only the antecedents and past conduct of the accused but also the surrounding circumstances in which the incriminating material was recovered are relevant to form a basis for `suspicion' that the accused was not carrying the material for a lawful purpose, The facts of the case on hand are that the accused are occupying a Jhuggi which is surrounded by the hostile elements, cases of brutal murders, arson and loot became the order of the day in the locality.

13. In this background the grenades of mild intensity could be stored to be used as a deterrent to scare away the invaders. So far there is no material to indicate that the accused have a background of criminality or are known for their complicity in acts of subversion or terrorism.

14. In my opinion they should not be denied bail even after remaining in custody for over four months now.

15. I would respectfully adopt the reasoning of this case and in my opinion, in the present case also there is no material to indicate that the hand grenade or `Patakha' as they can be more appropriately called, were stored by the accused for 'purposes of subversion and terrorism' within the meaning of `Suppression of Terrorist Activities (Special Court) Act, 1975.

16. The accused are in jail for the last four months and sanction to prosecute has not yet been obtained by the prosecution. Experience shows that in a large number of cases sanctions are not received for long periods of time, in spite of requests and reminders of the prosecuting agency and the cases are adjourned for want of sanction date after date. In this situation, this itself is a ground in favour of the accused for grant of bail: As matter of fact, in similar cases, bails have been granted by my predecessor and also by me in most of the cases invariably with the consent of the Special Prosecutor.

17. I would, in the circumstances of this case, allow bail to these three accused on their furnishing one surety in the sum of Rs.10,000 with P.R. bond in the like amount to the satisfaction of the Registrar of this Court.

18. S.A. /S-23/K Bail granted.