STATE Versus PARVEZ SIDDIQUI Muhammad Ilyas Khan, S.P.P. , Rashid Rizvi

The six accused in this case are facing trial under section 5 of the Explosive Substance Act, 1911. The explosive substance allegedly recovered from the car are two crakers which according to P.W. 1 Rasheed Khan could cause explosion with a loud noise. If hit with any hard substance, the shreds could also cause injuries to persons standing nearby the place of explosion.

2. The prosecution case is that on 30th April, 1981 at about 3 and 4 a.m. in the night Anti-burglary Squad was on patrol duty. They reached the Manzil Petrol Pump and noticed that a taxi was parked on the road. The police party reached the place where the taxi was parked and found three persons Zahoor, Ishtiaq Ali and Sattar standing near the taxi. On questioning, they informed the police party that a gang of robbers had just robbed them of their belongings and had drove-away in a car towards Karachi. The police party picked up these persons in their Suzuki Pick-up and drove to chase the robbers. When they reached Mehar Cinema, they found the car of the accused going ahead of them. The police party fired several shots at the speeding car in order to stop the car. One of the bullets hit the rear wheel deflating the tyre and the car stopped.

3. The six accused came out of the car and tried to escape, two succeeded in escaping in the darkness while four were over-powered and captured red-handed. Parvez, Ejaz, Najamuddin and Akram Shah are stated to have been arrested on the spot while accused Akhtar Jalal and Naseem succeeded in escaping and they have been arrested by the police subsequently.

4. It Is further alleged that as a result of search of the accused at the time of their arrest by the police the cash. wrist watches etc. which were looted by them earlier were recovered. On search of the car two hand- grenades were recovered from below the front seat of the car which was used by the accused.

5. This prosecution story is denied by all the accused They had not pleaded guilty and have examined evidence in defence to the effect that they were never arrested on the date and time mentioned by the police. According to the defence, these accused have been arrested from, their own houses during Ramazan on account of enmity with the police. The recovery 1670 incriminating material is also denied.

6. Prosecution has examined P.W. Zahoor who is the driver of the taxi and P.W. Sattar and Ishtiaq who were the passengers in the taxi and Muhammad Hussain, P.W. 5 Sub-Inspector, who was a member of the police party which chased and arrested the accused on the date of occurrence.

7. I will refrain from discussion of the evidence regarding their involvement in the dacoity and would also abstain from making comments on the discrepancy and contradiction in the statements of the prosecution witnesses because I am informed that the accused have been challaned and are facing trial for dacoity before some other Court. I will confine myself to the charge under section 5 of the Explosive Substance Act, which relates to the recovery of two bombs from beneath the seat of the car in which they were escaping at the time of their arrest and which is said to have been used by the accused on that night. In the first instance, I have to examine the allegation of recovery of the Bombs from the car in the light of the statement of witnesses examined by the prosecution.

8. I cannot fail noticing that the versions of these witnesses do not tally. P.W. Abdul Sattar who is a passenger in the taxi, on that night states that while they were coming from Bhains Colony and going to Korangi on the National Highway in the taxi they were stopped by these accused near the Manzil Petrol Pump and relieved of their belongings. This witness further states that after robbing him and another passenger and the driver the accused drove away in their car and also took away the taxi with them. On the contrary P.W.3 Zahoor has stated "the police party took us in the van to chase the robbers. I had left my taxi behind." P.W. Zahoor, the driver of the taxi further states "the two crackers and some keys and our properties of which we were robbed were also recovered from them".

9. While stating that two crackers were recovered from the possession of the accused at the time of search he does not mention from which of the four accused these crackers were recovered. I would not point out other contractions. Suffice it to say that even if the story that the recovery of the two crackers was made from the car it still remains debatable and doubtful whether all these accused were in conscious possession of the two crackers which are alleged to have been recovered from below the front seat of the car. Admittedly the car does not belong to any one of the accused and it cannot be said how and when it came in their possession. Further, whether the two crackers were already in the car when they acquired the car or they were stored by the accused; and if so by which one of these six accused. It is also an important feature of the case that two out of the six accused made good their escape in the darkness and were arrested after several days. They remained unidentified and for this reason the learned Special Public Prosecutor has not supported the prosecution of these two accused namely, Akhtar Jalal and Naseem. It can also be said in support of the accused that perhaps these grenades if at all they were recovered from the car may have been placed by the two absconding unidentified accused; the four arrested accused not even been aware of the presence of the grenades in the car. With this state of evidence it cannot be said that there are reasonable grounds to believe that the accused had in their possession and control the explosive substance, which they were keeping for any unlawful object.

10. Without reverting to the defence version that the accused have been arrested from their houses on account of the enmity with the police, I would acquit the accused on the ground that the prosecution has not succeeded in proving the conscious possession and recovery of the two grenades from any of the six accused. The accused are, therefore, acquitted and their bail bonds are cancelled.

S.A./S-33/K Accused acquitted