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2015 P Cr. L J 929

[Sindh]
Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ
ABDUL BAQI alias TALAHA and 2 others---Appellants
versus
The STATE---Respondent
Criminal Anti-Terrorism Appeal No. 48 and Spl. Criminal Anti-Terrorism Jail Appeal No.57 of 2010,
decided on 6th February, 2014.
(a) Explosive Substances Act (VI of 1908)------S. 2---"Explosive Substance"---Definition and scope---Provision of S.2 of the Explosive Substances Act,
1908, did not confine to the expression 'explosive substance', but same was widening one---Such definition
had been made subject to, that any material should be available for making explosive substance, or causing
any explosion---Such could be any material (substance), if it was established that the substance could be used
for making explosive substance, or could be used for causing any explosion---Prosecution would continue to
be under a mandatory obligation not only to prove recovery of substance (material), but its obligation would
become grave to prove that such material or apparatus was such that same could either be used for making
explosive substance, or could be used for causing any explosion.
(b) Explosive Substances Act (VI of 1908)------Ss. 4, 5 & 6---Anti-Terrorism Act (XXVII of 1997), S.7(b)---Pakistan Arms Ordinance (XX of 1965),
S.13(d)---Attempt to cause explosion, making or possessing explosives, abetment, act of terrorism,
possessing unlicensed arms---Appreciation of evidence---Prosecution witnesses had supported each other on
all material aspects---Said witnesses stood firm on the manner of receipt of information during patrolling
timing, their arrival at pointed place, and recovery of articles from the possession of accused persons--Defence had not pleaded any specific plea of enmity against said witnesses---In absence of any annoyance or
enmity against Police Officials, evidence of Police Officials, could not be viewed with doubt, simply on their
being Police Officials, but their evidence should be treated as that of a private person---Witnesses also
identified the properties recovered from possession of accused persons---Recovery which was claimed to be
explosive, was not only to be examined by the expert, but also required to be handled by the expert--Non-sealing of bags containing explosion by the Police party, was not only quite logical, but also
reasonable---Purpose of sealing of the property was always to keep it in same position as it was recovered so
as to eliminate chances of tampering therewith---Prosecution not only had proved the recovery of articles
from the possession of accused persons, but also prima facie established the said articles to be
explosive---Trial Court, in circumstances, had committed no illegality in believing the evidence---Prosecution
did establish the recovery of pistols from the possession of accused persons---Report of Forensic, had
confirmed that same were received with seals intact, and after report confirmed that weapons were in
working order---Conviction awarded to accused persons by the Trial Court, was maintained, in

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circumstances.
Attaullah alias Qasim and another v. The State 2006 YLR 3213; Attaullah and another v. The State
2007 MLD 310; 1999 SCMR 1367; Kashif Saddique v. The State 2008 PCr.LJ 1039 and Munawar Shah v.
The State 2004 MLD 200 ref.
(c) Criminal Procedure Code (V of 1898)------S. 173---Evidence of Police Officials---Police Officials were as good witnesses as private person could
be---Evidence of the Police Officials, should not be doubted merely their being Police Officials, unless it was
established that the Police Officials, had such annoyance or enmity with persons.
Abdul Sami for Appellant No.1.
Muhammad Ashraf Samoo for Appellant No.2.
Noman Shafiq for Appellant No.3.
Khadim Hussain and Ali Haider Saleem, A.P.-Gs. for the State.
Dates of hearing: 11th and 24th December, 2013.
JUDGMENT
SALAHUDDIN PANHWAR, J.---Through captioned appeals, appellants have assailed judgment
dated 28th October, 2010, passed in Sessions Case No. of 2004 (Re-The State v. Abdul Baqi and others),
whereby the learned trial Court Judge convicted all three appellants under section(s) 4/5, Explosive
Substance Act, 1908 and sentenced them to suffer rigorous imprisonment for 7 years with confiscation of
their property either moveable or immoveable to the Government, convicted under section 7(b) of
Anti-Terrorism Act to suffer sentence for 10 years with fine of Rs. 50,000 and convicted under section 13-D,
to suffer sentence for 3 years.
2.
Succinctly, relevant facts of the prosecution case are that on 26-2-2010 the complainant Inspector
Choudhary Azam Hussain of CID Sindh Karachi along with his subordinate staff was busy in search of the
proclaimed offenders and terrorists within area of Jamshed Town Karachi, while he received a tip-off that
some terrorists, having explosive substance, are present in a house, located in Street (Gali) No.2, near Maktab
Al Razi, opposite to Gru Mander with an intention to commit an act of terrorism on procession of 12
Rabi-ul-Awal. On such information, he along with staff rushed to the pointed place, where found five
persons, having kits on their shoulders. All accused persons tried to escape but three of them were
apprehended by complainant party. On their personal search one black bag was secured which was lying on
the shoulder of accused Abdul Baqi and same was found containing 20 Kg explosive substance "RDX", two
Detonators with electric wire and also secured one un-licensed and un-numbered T.T. Pistol of 30 bore with
magazine, containing five bullets from left side folder of his shalwar. On the personal search of the accused
Muhammad Ismile Chandio, one black bag containing one "RPG" (Gola), one TNT block of 250 grams, two
Detonators with electric wire was secured and from left fold of shalwar one un-numbered, un-licensed TT
Pistol of .30 bore and magazine with four bullets, were recovered. On the personal search of accused
Muhammad Yousif Chandio, one black bag, containing one RPG (Gola), 30 meter detonating card, two
detonators with electric wire and one un-licensed T.T. Pistol with magazine containing 6 bullets from left side

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folder(nefa) of his shalwar. The apprehended accused disclosed the name of their escaped accomplices as
Rehmat Gul and Hakim alias Chhota Hakim. Thereafter, police prepared such memo at the spot and lodged
FIR 34/2010 at PS CID Sindh, under sections 4, 5, 6, Explosive Substance Act, and separate FIR(s) under
section 13-D against all accused persons. After usual investigation, accused were sent-up for trial.
3.
After compliance of provision of section 265(c), Cr.P.C., the charge against all three accused persons
was framed to which they pleaded not guilty and claimed their trial vide their pleas, recorded separately.
4.
To substantiate its case, prosecution examined following witnesses:- P.W.1/Exh.8 inspector CH. Azam
Hussain who produced memo of recovery as Exh.8/A and FIR Exh.8/B and three FIR(s) Exh.8/C, Exh.8/D,
Exh.8/E and memo. of wardat as Exh.8/F. P.W.2: SIP Salahuddin Ali, P.W.3: SIP Muhammad Amir who
produced the report of explosive material as Exh.12/A. P.W.4: I.O. Inspector Imam Khan who produced
report of FSL Exh.13/C, letter and sanction order Exh.13/D and Exh.13/E respectively. Thereafter side of
prosecution was closed.
5.
The statements of accused person (s), were recorded under section 342, Cr.P.C. respectively, wherein
they professed their innocence and claimed prosecution case to be false, further contended that they were in
wrongful confinement of law enforcement agency, and they were taken in custody from different places.
However, none of the accused persons came forward to examine himself on Oath or to lead evidence in his
defence, as provided under section 340(2), Cr.P.C.
6.
Learned counsel for the appellant/convict has, inter alia, argued that memo of recovery reflects that
explosive material was sealed, whereas I.O. and P.W. says that only arms were sealed; material contradictions
were found in the statement of witnesses, but such glaring contractions were not considered by trial Court
though such contradictions have made the prosecution case doubtful. In support of his contention he has
relied upon case of Attaullah alias Qasim and another v. The State reported in 2006 YLR 3213, case of
Attaullah and another v. The State reported in 2007 MLD 310.
7.
On the contrary, learned APG, while refuting the contentions raised by rival side, argued that all three
accused were arrested at the spot with heavy explosive substance and un-licensed weapons; no enmity is
existing or suggested against police hence trial Court has rightly convicted them, thus he relied upon case of
1999 SCMR 1367, PCr.LJ 2008 1039 (Kashif Saddique v. The State), 2004 MLD 200 (Munawar Shah v. The
State).
8.
We have carefully gone through the record of the case and considered the submissions of the learned
counsel for the parties.
9.
Scanning of the record makes it clear that the prosecution has claimed to have recovered pistols and
explosive substances from the possession of the appellants and they have been punished for such charges
accordingly.
10.
Before proceeding further into the merits of the case, it would be pertinent to mention that judicial
propriety, demands in this case to first understand the meaning of the explosive substance with reference to
section 2 of the Explosive Substances Act, 1908 (hereinafter will be referred to as Act) which defines the
explosive substance in following words:"In this Act the expression 'explosive substance' shall be deemed to include any materials for making
any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or

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adapted for causing, or aiding in causing, any explosion in or with any explosive substance, also any part of
any such apparatus, machine or implement".
The above definition makes it clear that the provision of section 2 of the Act does not confine the expression
'explosive substance' rather the same is widening one. However, such widening definition has been made
subject to that any material should be for making explosive substance or causing any explosion. Thus, it is
quite safe that it could be any material (substance) if it is established that such substance can be used for
making explosive substance or can be used for causing any explosion. In other words the prosecution
continues under a mandatory obligation not only to prove recovery of substance (material) but its obligation
becomes rather grave to prove that such material or apparatus is such that same can either be used for making
explosive substance or can be used for causing any explosion.
11.
Having discussed above, now we revert to the merits of the case and feel it just and proper to examine
the case, in hand, within the parameters of sections 4 - 5 of the Explosive Substance Act, 1908.
12.
Regarding arrest and recovery from possession of the appellants. The prosecution has brought on
record the evidence of P.W. Choudhary Azam Hussain and P.W. SI Syed Salahuddin Ali. The evidences of
these witnesses prima facie show that these witnesses have supported each other on all material aspects.
These witnesses stood firm on the manner of receipt of information during patrolling; timing thereof; their
arrival at pointed place and recovery of the articles from the possession of the appellants.
13.
So far as to the plea of the defence revolving around place of arrest, manner of arrest and recovery
without association of the private persons, we would say that since the place of incident is not a 'place' within
meaning of the section 4(q) of the Criminal Procedure Code; because within meaning of the section 103 of
the Code the search of 'place' is necessary to be within presence of the witnesses of the locality. However,
there is no hard and fast rule because it is the attending circumstances which are decisive to consider such
plea. In the instant matter the information was received during the patrolling with a further explanation that
persons were about to leave. Such mentioning is also patent in the FIR that 'The terrorist possess explosive
substance and may shift anywhere at any time". This was also stated by the P.W.Salahuddin in his
examination-in-chief as 'Spy also informed the inspector that the persons who had assembled there might
leave the place to achieve their object'. Therefore, if the police party is allowed to look for association of
witnesses it could have cost escape of the culprits. The formalities are not meant to allow escape of the
culprits. In addition to above, the people usually do not come forward to speak against the criminals and even
otherwise, it was a matter of explosive which, itself, is sufficient for keeping the people away from such
place. Therefore, such plea of the defence is not of any substance. Even otherwise, it is now established
principle of law that police officials are as good witnesses as private person can be. The evidence of the
police officials should not be doubted merely their being police officials unless it is established that the police
officials have/had such annoyance or enmity with the accused persons. It is also a matter of record that
scanning of the cross-examination of these witnesses show that defence has not pleaded any specific plea of
enmity against these witnesses. In absence of any annoyance or enmity against the police official(s) their
evidence may not be viewed with doubt simply on their being police officials but their evidence should be
treated as that of a private person. The witnesses also identified the properties as same which was recovered
from possession of the appellants. It was explained by the P.W.1 complainant in his cross examination that
'On all the 3 bags 3 small white cloth[s] were fixed for the sake of identification'.
14.
As regard to the non-sealing of the bag(s), containing explosive it would suffice to say that such
recovery was claimed to be explosive which was not only to be examined by the expert but was also required
to be handled by an expert, therefore, non-sealing of such bags by the complainant (police party) is not only

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quite logical but also reasonable one. At this juncture, it is germane to mention that the purpose of sealing of
the property is always to keep it in same position as it was recovered so as to eliminate chances of tampering
therewith. The same principle cannot strictly be applied in matter(s) of explosive because the articles,
recovered as explosive or even under suspicion of explosive cannot be expected to be sealed by ordinary
hands but only skilled hands. Such bona-fide also appears from another aspect that pistol (s) recovered from
possession of the appellants were sealed by the police party. This patently proves that complainant (police
party) was aware with objective of the procedural requirement of sealing of the property. The position, being
so, made it clear that act of non-sealing the explosive was not only deliberate but was also logical and
reasonable.
15.
Since, on recovery of the explosive, the role of the expert starts, and the recovery of the explosive also
requires to be immediately dealt with by the expert for safety. To scrutinize what measures were taken by the
police in that respect it would be necessary to refer the evidence of I.O. Imam Khan who stated in his
examination-in-chief that:
"While inspecting the site I wrote letter to incharge Bomb Disposal Unit Special Branch Sindh
Karachi for inspection of the property, secured from the accused. I produce such letter as
Exh.13/A.Thereafter, our police party returned to PS CID Sindh where Munir Ahmed Sheikh, SIP
of Bomb Disposal Squad also came to whom the property, secured from the accused, was shown who defused
the entire property consisting of explosive material".
From the above portion, it becomes quite apparent that expert was asked to come by the Investigating Officer
immediately and bags (explosive) were removed from the public place (place of arrest and recovery is a
public place) to CID Unit perhaps under a belief that same is not activated to blow as the culprits were seeing
carrying them on their shoulders. Further, the perusal of the report (Exh.12/A) shows that late Munir Ahmed
Sheikh did examine the property on the very date of the incident i.e. 26-2-2010 at 1930 hours which means
that prosecution did take every measure to ensure immediate examination and disposal of the explosive.
16.
Further, we take up the evidence so as to examine as to whether the prosecution proved the charge
against the appellants in view of above discussed criteria regarding recovered articles to be explosive or
otherwise. For that we would like to refer the relevant portion(s) of examination-in-chief of P.W.1 Ch. Azam
Hussain which is reproduced hereunder:P.W.1 Ch. Azam Hussain
On their personal search we found that all the three apprehended persons were having bags on their
shoulder. On the search of the bag which was on the shoulder of accused Abdul Baqi 25 KG RDX explosive
material, two detonators with electric wire was found and one pistol .30 bore with magazine containing 5 live
bullets was secured from left side nepha of his shalwar; from the bag of accused Muhammad Ismail Chandio
one RPG Gola, one TNT block weighing 250 grams, two detonator with wires were secured from his bag and
one .30 bore pistol with magazine containing 4 live bullets from left side nepha of his shalwar, while from the
bag of accused Muhammad Yousuf Chandio police secured one RPG Gola, 2 detonators with wires one
electric cord of about 30 feet from his bag while one .30 bore pistol was secured from left side nepha of his
shalwar. The pistol contained one magazine and 6 live bullets.
The perusal of examination of the above witness shows that he not only gives the detail of manner of arrest
but specifies some details of the explosive secured from the bags, being carried by the appellants, which is
expected from an Inspector of CID Unit particularly where the darkest fact of our society is that people often

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see and hear the use of explosive. The TNT Block, PRG Gola and detonator (a device used to trigger an
explosive device which can be chemically, mechanically or electrically) are no more unknown to criminals so
also to the police. It is the Law Enforcing Agencies, including CID Unit, which are believed and expected to
deal with such crimes and criminals. Therefore, despite admission of P.W-Ch. Azam Hussain in his crossexamination that "In our police party there was no explosive expert" such act of giving details of recovered
explosive is worth substance. However, this could have been material only if the witness (police party) could
have claimed defusing of the explosive, which the police party never claimed.
17.
We are cognizant of the fact that that the said P.W. is not the expert therefore, such words of this
witness were never sufficient to give the recovered articles a status of explosive. This could be possible only
through an expert. Here it is worth to add here that provision of the article -71 of the Qanun-e-Shahdat Order
makes it obligatory that:
"if it refers to an opinion or to the grounds on which that opinion is held; it must be the evidence of
the person who holds that opinion on those grounds'
This insists that where it is the evidence of an expert then it should be the expert who should be examined.
However, the Qanun-e-Shahadat Order itself provides a mechanism for production of the report e.t.c without
its scriber. Since in the instant case it came on record that Mr. Munir Ahmed Sheikh, the expert, had died,
therefore, prosecution produced the report, issued by such witness, on record through P.W. SIP Mohammad
Aamir. The P.W-SIP Mohammad Aamir claimed to have worked with late Munir Ahmed Sehikh SIP for
about 11 years in this Squad and confirmed that report (Ex.12/A) bears the signature of the late Munir Ahmed
Sheikh. while the defence has never challenged/questioned the status of the Munir Ahmed Sheikh as an
expert therefore, the report so issued by said Munir Ahmed sheikh was legally brought onto the record by the
prosecution within meaning of the Article 61 of the Qanun-e-Shahdat Order. Therefore, the Court can legally
consider the report to form an opinion.
18.
At this juncture, it would be significant to see what the expert found on examining these recovered
explosive. For that the column-10 and 12 of the report of the expert (Exh.12/A) is reproduced hereunder:10. Found Recovery

12. Possible observation

02 Active Bomb associated with specific accessories i.e.

Detonating Cord in orange colour which were connected
inside the RPG Rocket Gola bearing No.(a)
82,42,1-76-991 (b) 82,42, 18-76-991 attached with
Detonators Cord Length Approx. 1-1/2 Ft. and also
recovered 20 KGs RDX white colour in powder shape,
06 Detonators, Mark-33, electrical with yellow colour
wire length about 3 Mtr. Each one block TNT high
explosive in yellow colour, eighing about 225 grams.
02 Active Bomb associated with specific accessories i.e
Detonating Cord in orange colour which were connected
inside the RPG Rocket Gola bearing No.(a)
82,42,1-76-991 (b) 82,42, 18-76-991 attached with
Detonators Cord Length Approx. 1-1/2 Ft. and also
recovered 20 Kgs RDX white colour in powder shape,
06 Detonators, Mark-33, electrical with yellow colour
wire length about 3 Mtr. each. One block TNT high

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explosive in yellow colour, weighing about 225 Grams.

There may be some difference in the weighment, given by the P.W.1 Complainant from that given by the
expert in his report. Thus it would suffice to say that P.W.1 Complainant had given the detail of weight
without scaling while the expert had every opportunity to properly weigh the same, therefore, such mere
difference in weighment in RDX and TNT block is not sufficient to disbelieve the evidence.
19.
As the above discussion makes it clear that prosecution not only proved the recovery of articles from
the possession of the appellants but also prima facie established the recovered articles to be explosive,
therefore, learned trial Court judge committed no illegality in believing the evidence.
20.
Whereas, the defence has not brought any material on record which could show serious enmity or
infuriation of the complainant with these appellants which could justify foisting of such huge quantity of
explosive against the appellants, particularly where status of the recovered articles as explosive stood
established.
21.
With regard to the conviction, awarded to the appellants, under section 13-d, Arms Ordinance, it
would be pertinent to say that the prosecution did establish the recovery of pistol(s) from the possession of
the appellants as same were sealed on the spot and were accordingly sent for Forensic analysis and report.
The report of Forensic confirmed that same were received with seals intact and after report (Exh.13C)
confirmed that weapons were in working order.
22.
Since, in the instant case the appellants have not established anything against the police officials
though it is a matter of record that the appellants claimed to be in custody of the Law Enforcing Agencies
prior to their arrest but they failed to produce any evidence to substantiate their plea(s).
23.
In view of above discussion we do not find any substance in the appeal(s), which are dismissed
accordingly. Consequently, the conviction awarded by trial Court is maintained.
HBT/A-17/Sindh

Appeal dismissed.

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