Salim Khan, J.--An FIR No, 12 was lodged by the Investigation and Prosecution Branch, Peshawar on the .report, through Haider Zaman Deputy Superintendent Customs Mobile Squad No, 2 Peshawar, under Sections 6/7/8/9-(c) of the Control of Narcotic Substances Act, 1997, and under Section 156(1)(8)(89) of the Customts Act, 1969. It was alleged in the Murasila drafted by Haider Zaman thatehe along-with other staff, while on routine checking on Jamrud Road near the Secondary Board Office, stopped a Bus. They recovered eight legs of Billiard game table from the appellant Gul Khan son Sambal Khan. They found charas and opium in the said legs on cursory inspection.
Those legs were taken to the Office of Deputy Superintendent Customs Mobile Squad No, 2 Peshawar as there was no instrument for opening the legs and, weighing the contraband charas.
The narcotics were found 33 kilograms chores and 12 kilograms opium smuggled from foreign country.
2. After arrest of the accused, and completion of investigation, complete challan was submitted to the Court of learned Sessions Judge/Judge, Special Court, Peshawar on 21.1.2002, which was entrusted to the learned Additional Sessions Judge-VI Peshawar/Judge, Special court, established under the Control of Narcotic Substances Act, 1997. Charge was framed against the accused. The prosecution, then, examined Haider Zaman, Deputy Superintendent Customs Mobile Squad No, 2 Peshawar as PW.1, Abdul Jalil Khan, Inspector Sale Tax Department, appeared as PW-2, while Noor Dali Khan NC Customs Department was examined as PW-3. Gul Muhammad PW was abandoned.
Nasir Bukhari, Inspector Sale Tax, was examined as PW.4 who identified the signature of Gul Naib Khan, Deputy Superintendent Customs. Kifayatullah Inspector Customs Mobile Squad No, 2 was examined as SW.1 regarding the case of Khanadar Afridi and Meenak Afridi, the absconding accused. Then the prosecution evidence was closed. The statement of the accused facing trial was recorded, in which he stated that no recovery was effected from his possession and that he did not know about the above mentioned legs of the Table. He also pleaded his innocence and ignorance about the other facts of the case.
3. The learned Additional Sessions Judge-VI Peshawar/Judge, Special Court, vide his judgment and order dated 26.1.2004, convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to rigorous imprisonment for life and to a fine' of Rs, 30,000/-, or in default of payment of fine, to suffer further simple imprisonment for six months.
Benefit of Section 382-B Cr.P.C. was, however, given to the accused-appellant.
4. Mr. Noor Alam Khan, Advocate, for the appellant and Mr. Hamid Farooq Durrani, DAG for the State, argued the case before us. We also perused the record of the case.
5. The evidence of the prosecution is that a Bus came from the Board side (which means the Building of the Board of Intermediate and Secondary .Education, Peshawar), when PW.1 alongwith his staff was present in the limits of Secondary Board on Jamrud Road. The FIR was to the effect that Bus was coming from Jamrud to Peshawar. It is admitted by PW.1 that he did not record the number of the Bus, and that he did not know the name of the driver and conductor of the Bus, and he had not recorded their statements in this case. He had not taken into possession the registration of the vehicle in question. He stated that there were 18/19 persons in the Bus at that time, but they (he or his 'staff members) did not enquire about their names. They had remained on the spot for about 10 minutes. PWs. 1 and 2 had never recorded the statement of any private person regarding the stoppage of Bus and recovery of legs therefrom. PW.3 also did not remember the number of the Bus and the numbers of passengers sitting in the Bus, although he allegedly was present at the spot at the time of alleged recovery. The prosecution, therefore, could not be able to prove the existence and presence of certain bus, and also the fact of its stoppage on the scene of occurrence, as well as the presence of passengers in such a Bus, if it existed, at the date and time mentioned by the prosecution.
8. It was alleged through the FIR that eight legs of the Billiard game table were recovered from the luggage of the accused. PW.1 stated that the goods were recovered from the rear seat of the Bus.
Same has been stated by PW.3 also. There is, however, no independent evidence to support them in their claim. The bus, though the vehicle allegedly used for the commission of offence, and being a case property, was never taken into possession. The said Bus was never produced at the time of trial to show that there was space on, near or under the rear seat of the Bus which could accommodate the said legs. It was alleged by PW.1 that the legs were wrapped in two plastic bags and same has been repeated also by PW.3. But those two bags, although being case property and piece of material evidence, have never been produced at the time of trial. The recovery memo mentioned 33 kilograms charas and 12 kilograms opium, but that memo, is silent about the bags.
Same is the position of the Murasila and the FIR. The legs, if any, have never been produced before the learned trial Court as the case property, inspite of the fact that it has been alleged that the said legs were wrapped in two bags and contained narcotics. The whole prosecution case revolved around those imaginary legs, and such legs should have not been thrown away alongwith the whole prosecution case. The prosecution, therefore, could not be able to prove by any independent evidence that a certain Bus contained certain legs which were recovered from the rear seat of the Bus while those were wrapped in certain two plastic bags.
9. It is alleged by the PWs that the legs had cavities which contained the alleged 33 kilograms charas and 12 kilograms opium. Those legs have been used by PW.1 and/or PW.2 for some purpose other than the prosecution case, These have never been produced before the learned trial Court to prove that the said legs really cavities which were enough to accommodate such huge quantity of contraband charas and opium. The non-production of the legs before the learned trial Court results in the lack of proof regarding the above mentioned facts.
10.It is in the statements of PWs. Nos, 1, 2 and 3 that the accused-appellant was present in the Bus, he was de-boarded from the Bus, and when the legs were found, the accused claimed their ownership. The accused never confessed his guilt, never admitted his presence on the spot, and denied the allegations of the prosecution, categorically, in his statement PW.1 stated that he asked the conductor about the ownership of the legs, who pointed out that these belonged to Gui Khan accused-appellant. The identity, even, the existence of that conductor is doubtful. The alleged confession of the accused before the PW.1, even if it was real, and, even, if it was reduced to writing, was not admissible in law and was not reliable evidence under the provisions of the Criminal Procedure Code, 1898. It is not the case of the prosecution that the legs were recovered from the physical possession of the accused-appellant, even if it could have been proved that he was deboarded from a Bus. It is shown in the evidence that, at least, 18/19 private passengers were available in the alleged Bus, but none of them was examined to support the version of the prosecution. The police officials and other staff of the investigating agencies are good witnesses, but it has to be shown that they were truthful witnesses of the facts of the case. There is, thus, every possibility that any other passenger, the driver or the conductor might have put the legs, if any, in the Bus, if it existed. The introduction and abscondence of Khanadar Afridi and Meenak Afridi speak a lot about a different story. The prosecution, therefore, could not be able to prove that the accused was present in the Bus, that the legs were in his physical possession/custody which were recovered from such possession/custody, and that the accused-appellant was actual owner of the legs or he actually claimed the ownership of the same.
11.PW.1 stated that the legs alongwith accused were taken to the office of the Deputy Superintendent Customs Mobile Squad No, 2, that Constables who were present on the spot took the legs from the Bus and put the same in the official vehicle of the Customs Mobile Squad, and that some other customs officials were also present on the spot, besides the Constables. The statement of PW.3, however, negated the version of. P.W.1. He stated that he took the same bags and wooden legs to the office of Customs Mobile Squad No, 2 on his shoulder. It was, however, argued that it was a minor discrepancy, although it was a part of the transaction at the time of occurrence.
12.Haider Zaman PW.1 stated that Abdul Jalil Inspector separated the samples for chemical test, three samples of 10 grams each were separated from the charas and three such samples from the opium which were sealed by the Abdul Jalil Inspector, and that Abdul Jalil Inspector had taken one sample each to the warehouse, the other sample to the Customs Warehouse, while the third each sample was retained by PW.1. Noor Dali Khan PW.3 stated that he had not taken the samples to the FSL for chemical analysis personally and he did not remember that what had happened to the samples separated for chemical test. He also did not know the person who had taken the Murasila to the Investigation and Prosecution Branch for recording the FIR. The statement of Abdul Jalil, PW.2, therefore, attained importance. He stated that the samples for chemical test were sent to the Expert on the second day of the occurrence, that he did not remember that who had taken the samples to the Laboratory, that he did not know the name of the person who had taken the samples alongwith remaining contraband from the spot to the State Warehouse, and he that could not say that who had received the parcel in the Laboratory. The prosecution was, therefore, unable to prove that the samples were actually prepared from the alleged contraband charas and opium and were taken to FSL in custody of a certain person.
13.It is worth-mentioning at this stage that Abdul Jalil (PW.2) stated that the samples were not separated from each leg, however, the same were taken from the whole quantity of the recovered narcotics. It is not known to the prosecution witnesses that how much charas or opium was recovered from each of the legs. PW.1 stated that each leg had charas and opium. It was admitted by PW.2 that there was, no foreign label or stamp on the narcotics recovered. It is, therefore, not proved on record that what was the quantity of the charas and opium recovered from each leg, and neither the samples could positively be proved, nor the allegation that charas and opium were contained in each leg and were allegedly recovered by the PWs, could be proved.
14.The alleged recovered contraband charas and opium were not produced at the time of trial. It was, however, alleged that the same were destroyed in accordance with the provisions of Section 516-A Cr.P.C. under the orders of the learned Special Judge Customs. The contents of Section 516-A Cr.P.C., however, mention the Criminal Court, and which, in the light of Sections 6, 9 and 12 thereof, normally point to the Sessions Judge, Additional Sessions Judge or a Judicial Magistrate. A Special Judge, appointed under a special law may also be the Presiding Officer of a Criminal Court, if he is so authorized by such law, but only for the purposes of proceedings under that law. The learned Special Judge, Customs, has never been authorized as Judge. Special Court under the Control of Narcotic Substances. Act, 1997. He, therefore, was not the Presiding Officer of the Criminal Court for the proceedings in this case. It has been admitted by the prosecution in this case that the contraband material in this case had no foreign label/sign. It has never been proved that the said material was smuggled into Pakistan.
15.In these circumstances, the learned Special Judge, Customs, was not concerned with the main case property of this case. The prosecution, therefore, did not properly complied with the provisions of Section 516-A Cr.P.C.
16.The public safety, public welfare and public interest are more important than the freedom of a person who may be guilty of breaking a law. 3 But conviction of an accused facing trial is never, and should never be, the result of trial in doubtful cases. It is not necessary that there should be many instances of doubt in a case, and only one doubt about the correctness of the prosecution case is enough, if it appeals to the mind of a prudent person that the accused may not be guilty of the offence alleged against him. As reported in 2005 CLC 123. 'It is well-settled principle of criminal Jurisprudence that any number of accused may escape unpunished, for lack of sufficient evidence or for the reason that prosecution failed to prove their guilt beyond reasonable doubt, but no innocent person should be convicted or punished for what he has not done.' The doubts, therefore, repel punishment.
17.The prosecution case in hand is so much extremely doubtful case as regards the involvement of the appellant in the crime alleged against him that it points to his false involvement instead of the real culprits. The prosecution evidence could not prove a single part of their story against the appellant what to say of the whole case, beyond the shadow of reasonable doubt. No enmity or illwill of the investigator and other PWs against the accused has been highlighted. But the possibility of involving the accused-appellant for other ulterior motives has not been excluded by any reliable evidence, and cannot be overlooked, without failure to do justice.
18. The FIR was not lodged in Police Station of the area. The customs officers are authorized under the provisions of the Control of Narcotic Substances Act, 1997, to conduct investigation in such like cases. But the investigation conducted in this case is of very poor quality. This is either the result of ignorance and inefficiency of PWs. 1 and 2 or the result of reasons with are not in favour of the prosecution. On the face of it, this is a case of no evidence, but, in fact, this is a case of destroyal, destruction and suppression of evidence of the prosecution, for reasons not brought on record. It is, however, for the authorities of the above named two prosecution witnesses (PWs. 1 and 2) to look into the matter officially and reach a conclusion in accordance with law/rules.
19. In the circumstances of this case, we are of the view that the prosecution has miserably failed to prove its case against the appellant beyond shadows of doubt, and the judgment and order of the learned Judge, Special Court, Peshawar, are the result of misreading and nonreading of the evidence on record; which resulted in conviction of the accused appellant incorrectly. We, therefore, accept the present Appeal, set aside the impugned judgment/order dated 26.1.2004 of the learned trial Court and acquit the appellant of the charge levelled against him under Section 9(c) of the Control of Narcotic Substances Act, 1997. He be set free forthwith, if not required in any other case.