' SH. ABDUR RASHID, J.--- Nazar Hussain son of Rab Nawaz, Mehr Muhammad son of Ghulam Hussain, Umar Hayat, Muhammad Akram, Muhammad Iqbal sons of Muhammad Hayat, Din Muhammad son of Muhammad Azeem, Ashiq Hussain son of Din Muhammad, Ghulam Mustafa son of Muhammad Yar alias Namdar, Faiz Muhammad son of Ghulam Rasool, Bureer Khan son of Amir Abdullah, and Amir Muhammad son of Muhammad Musa (wrongly mentioned as Mehr Muhammad in the judgment) were tried by the learned Judge, Special Court, constituted under the Control of Narcotic Substances Act, 1997, Mianwali in case F.I.R. No,152, dated 23-8-1997, registered at Police Station Mochh, District Mianwali for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997. The learned trial Judge, by virtue of his judgment dated 18-6-2001, found them guilty of the, charge, convicted and sentenced them to death with a fine of Rs,1,00,000 each or in default of payment thereof to undergo rigorous imprisonment for one year.
2. Feeling aggrieved by the aforesaid judgment, the appellants, namely Nazar Hussain, Mehr Muhammad by filing Criminal Appeal No,1015 of 2001, Umar Hayat, Muhammad Akram, Muhammad Iqbal, Din Muhammad, Ashiq Hussain, Ghulam Mustafa, Faiz Muhammad, Bureer Khan by filing Criminal Appeal No,1016 of 2001, and Amir Muhammad (wrongly mentioned as Mehr Muhammad in the judgment) by filing Criminal Appeal No,1470 of 2001 have approached this Court to call in question conviction and sentence passed against them. We propose to dispose of all these matters together through this single judgment.
3. According to the prosecution allegation set up in the F.I.R. (Exh.P.A. /1), on 23-8-1997 at about 3-00 p.m.. Ghulam Murtaza, Inspector/S.H.O. Police Station Mochh along with Zafarullah, S.-I., Nemat Ali, Mumtaz Khan, Sanaullah, Abdul Hameed, A.S.-Is. Ghulam Abbas No,709/C, Syed Amir, Ghulam Abbas No,883/C, Niaz Ahmad, Mukhtar Ahmad, Islam Khan and Muhammad Khan, constables were on patrol duty at Dhop Sari, when they received a secret information that notorious narcotics paddlers and fire-arms smugglers Umar Hayat, Muhammad Iqbal, Muhammad Akram, Muhammad Mushtaq sons of Muhammad Hayat along with eight/nine other persons would bring huge quantity of fire-arms and narcotic substance in the area of Police Station Mochh after crossing the Indus River and consequently the said information was reported to the Superintendent of Police, on whose direction a raiding party was arranged, which took the positions on the bank of River Indus. At about 6-30 p.m., the appellants along with Muhammad Mushtaq carrying fire-arms in their hands and bags of narcotic substances on their backs alighted from a boat at Shammiwala Patan in River Indus and they were challenged by the police party and were ordered to surrender their illicit merchandise and also their persons. The appellants then resorted to firing at the police party and had thrown the bags containing narcotic substances from their backs .On the ground. The police party also returned the firing and the said encounter continued for about half an hour and thereafter, Ashiq Hussain and Din Muhammad appellants had thrown their fire- arms on the ground, whereas the remaining appellants succeeded in making good their escape having already thrown on the ground their fire-arms and bags containing narcotic substances. A huge quantity of narcotic substances and fire-arms was picked up from the places where the appellants were allegedly standing. Ghulam Murtaza, Inspector/S. H.O. Prepared recovery memos., which were duly attested by Zafarullah, S.-I. And Nemat Ali, A.S.-I. He also drafted complaint (Exh.P.A.), which was sent to the police station for registration of formal F.I.R., whereupon Ghulam Yasin, H.C. Recorded F.I.R. (Exh.P.A./1). Sample sealed parcels were sent to the office of Chemical Examiner, whose reports confirmed the contents to be that of narcotics.
4. Upon completion of the investigation, the appellants were challaned in this case. They were charged under section 9(c) of the Control of Narcotic Substances Act, 1997, which was read over to the appellant, who pleaded not guilty and claimed to be tried. The prosecution has produced Ghulam Yasin, H.C. (P.W.1), Zafarullah, S.-I. (P.W.2), who attested all the recovery memos. As a witness and was member of the police raiding party, which had an alleged encounter with the appellants, Syed Qarib Ali Shah, Inspector/S.H.O. (P.W.3), who formally arrested Mehr Khan and Ghulam Mustafa appellants in this case and Din Muhammad, constable (P.W.4), who had served proclamations on the appellants while they were absconders. The remaining prosecution evidence was closed and the Deputy District Attorney had tendered in evidence report of the Chemical Examiner (Exh.P.P.) and copies of warrants of arrest of the appellant and the site plan.
5. Upon conclusion of the trial, the learned trial Judge convicted the appellants in the manner as aforementioned.
6. We have heard the learned counsel for the parties and gone through the record. The F.I.R. In the shape of complaint (Exh.P.A.) in this case was lodged by Ghulam Murtaza, Inspector/S.H.O. And all the recovery memos. Whereby the narcotic substances were taken into possession from the alleged respective places on which each of the appellants was standing, were drafted and signed by the said Inspector/S.H.O. We find that the prosecution has not bothered to produce the said Inspector/S.H.O., who is the complainant of this case as well as had drafted all the important investigational documents, whereby the narcotic substances were allegedly recovered from each of the appellants. Unless Ghulam Murtaza, Inspector/S.H.O. Had deposed that the complaint was drafted by him or was in his handwriting and recovery memos. Were drafted by him and were in his handwriting and they were under his signatures, they cannot be said to have been validly proved on the file. Thus, most important prosecution witness has not been produced, which has left a huge dent in the prosecution case. Merely the evidence of Zafarullah, S.-I., who narrated the prosecution story or his mere attestation of the recovery memos. Would not be sufficient to establish the prosecution case. We further find that even Ghulam Mustafa, Inspector/S.H.O. Who had conducted the subsequent investigation in this case and had allegedly recorded the statements of all the prosecution witnesses under section 161, Cr.P.C. Had also not been produced in this case to confirm the factum that the investigations were in fact made by him and that the allegations against the appellants were found correct during the investigation. So much so none of the witnesses, who appeared before the trial Court had stated that the report under section 173, Cr.P.C. Had been submitted against the appellants by him.
7. We find that the allegations against all the appellants are of identical nature as had been levied against one Mushtaq Ahmad co-accused and even Zafarullah, S.-I. (P.W.2) had also deposed against him in an identical manner, but said Mushtaq Ahmad had been acquitted by the trial Court under section 265-K, Cr.P.C. On the ground that he was not member of the accused party and at the time of occurrence, he was allegedly present at his place of duty elsewhere. When the prosecution Mushtaq Ahmad with the same evidence stands disbelieved against ushtaq Ahmad co-accused, then it cannot be believed against the appellants without any independent corroborative evidence, which does not exist in this case. Therefore, case of the present appellants, who had been sentenced to death, is also on the same footing with Mushtaq Ahmad accused and the manner in which the trial Judge has conducted the trial and recorded this judgment is extremely painful. We find that in paragraph No,25 of his judgment, he has based conviction of the appellants merely on the basis of presumption, that the narcotic substance had been recovered from the appellants and there is no independent finding that it was in fact recovered from their possession. Thus, the entire prosecution evidence in this case is not only doubtful, but extremely deficient and does not in any manner establish its case against the appellants. The Additional Sessions Judge, who has decided this case, has shown arrant ignorance of law in recording the appellants' conviction.
8. We, therefore, by accepting these appeals, set aside the conviction and sentence of the appellants and acquit them of the charge. They shall be released from jail forthwith if not required in any other case.