Dost Muhammad Khan, J.--This judgment shall also decide W.P. No, 518/2000 titled "Ali Marjan and Akram Khan vs. The Special Appellate Court Custom, Peshawar etc." because questions of law and facts are identical to both and both are the outcome of one and the same FIR.
2. Salim. Javed Durrani petitioner herein died during pendency of the writ petition but vide order dated 30.1.2001 the same was allowed to proceed because besides sentence of imprisonment, sentence of fine has also been imposed. Reliance was placed in this regard on the case of Muhammad Akram vs. The State (1998 Cr. L.J. 1693) ad case of Ramdhani Gope and others vs. Jagesker Mahto (AIR 1941 Patna 526). The petitioner is now represented through his legal heirs.
3. Late Salim Javed Durrani was posted and was on duty as a Deputy Chief Controller. on 22.7.1992 from 1600 hrs to 2400 hrs at Control Office Pakistan Railway Peshawar Cantt. At the relevant time according to the Schedule 44 empty wagons at Peshawar Cantt and one wagon loaded with Chips at Peshawar City Railway Station were waiting for dispatch towards the down country. The goods train 0012 Down was arranged by the petitioner and Assistant Station Master then on duty at Peshawar City Railway Station was directed to attach the Chips loaded wagon with the train on its arrival from Cantt. Railway Station which was done by the concerned Incharge as directed whereafter the train started for its destination downward consisting of 45 wagons. According to the schedule and practice the train was not required to have had halt at any Station except for operational matter. According to the evidence when the train left the Cantt. Railway Station Peshawar at 2.25 a.m. Late Salim Javed Durrani was not present as he was off the duty by 2400 hrs.
During the course of journey in an unusual manner and against the laid down schedule, the train was brought to halt before reaching Nasarpur Railway Station on 23.7.1992. By then spy information was received by the Deputy Collector Customs Sher Nawaz that huge quantity of narcotics were being smuggled into down country through a wagon of the said train thus, a raiding party of Drug Enforcement Cell Peshawar headed by Muhammad Amin Afridi Inspector (PW-3) conducted a raid on the halted train when by then some persons were busy loading drums in a wagon of the train who on seeing the customs officials made firing at them and after a brief exchange of fire shots, the said persons made good their escape. Some of the drums were found on the plat form while the rest were de-loaded from Wagon No, 24007-C and were taken into possession. On opening the drums, Charas allegedly of foreign origin was found in it. The Railway employee present on duty including Ali Marjan, petitioner in the connected writ petition, who then was performing duty as Assistant Station Master were taken into custody while the seized drums loaded with Charas were taken to the Customs Ware House for weighment and proper seizure. Murasila report was sent on the basis of which case FIR No, 33 dated 23.7.1992 was registered by I and P branch Custom House Peshawar. The gross weigh of 180 drums containing Charas turned out as 6000 K.G. Akram Khan, Guard, petitioner of connected petition was also found involved thus, he too was arrayed as an accused. During the investigation, in all eight persons were charged tor the offence of smuggling of foreign origin Charas into the country m the above manner while Articles 3 and 4 of the Prohibition Order 1979 were also added in the FIR.
After completion of investigation, charge sheet was filed before the learned Judge Special Court Custom Peshawar, the trial was held and at the conclusion of the same the petitioners (Late) Salim Javed Durrani, Ali Marjan. Assistant Station Master and Akram Khan, Guard, were found guilty for offences u/Ss. 156(1)(89)/178 read with Section 2(s) of the Customs Act, 1969 and were sentenced to 6 years R.I. each with a fine of Rs, 1,00,000/- each. Benefit of Section 382-B Cr.P.C. was, however extended. The remaining five accused, namely, Habibullah, Islahuddin, Fazal Maula, Abdul Ghaffar and Intizar Ahmed were acquitted extending them benefit of doubt.
4. The three convicts, now petitioners herein questioned their conviction and sentences through Cr.
A Nos, 126/96 and 127/95, the same were allowed vide judgment of the learned appeal Court dated 15.2.1996 to the extent of sentence only and it was held that in the circumstances, the sentence already undergone alongwith payment of fine of Rs, 1,00,000/-will meet the ends of justice.
The petitioners impugned the Appellate Court judgment before the Hon'ble Supreme Court through Cr. P.L.A. 12-P and 20-P of 1996 and leave was granted on 24.4.1996, however, vide judgment dated 6.4.2000 of the Apex Court the said appeals were found incompetent because of the - principle laid down by the Apex Court in the case of Asghar Ali and another vs. The State (1999 SCM R 654) thus, the same were dismissed as withdrawn. It was also observed that the appellants reserve the right to approach the appropriate forum for redressal of their grievances in accordance with law. The petitioners have thus questioned the legality and propriety of their conviction through these petitions.
5. The prosecution before the learned trial Court as well as before the learned appeal Court has heavily relied upon the evidence of PW-8; namely, Ghulam Nabi, the then Assistant Transportation and Commercial Officer Pakistan Railway Peshawar Cantt. and the statement of the accused/convicts Ali Marjan and Akram Khan purportedly recorded u/S. 161 Cr.P.C. which were retracted and disowned by them at the time of adjudication proceedings before the Customs Adjudicating Officer. As both the learned Courts have equally placed reliance on the same evidence for the purpose of convicting and sentencing the petitioners, therefore, we would first take the statement of PW-8.
On perusal of the entire statement of the said PW, it is difficult to perceive that guilt of the petitioners has been established in accordance with the requirements of law and principle of justice. This witness has narrated the procedure about the departure of train and the course of its journey towards ultimate destination besides supporting the plea of petitioner (Late) Salim Javed Durrani that he wagon/bogie loaded with Chips was attached to the train at City Railway Station and the same quantity of Chips were found in the said bogie on the crime spot albeit 200 bags were off-loaded by the unknown culprits near Nasarpur Railway Station at the time of loading the drums containing narcotics in the said bogie. No other clue of whatever nature creating nexus between the two incidents has been provided by this PW. He has in the departmental inquiry had held responsible the guard (Akram Khan) petitioner, the driver, the fire man and Ali Marjan, Assistant Station Master Nasarpur Railway. Station but in cross-examination he conceded that Shabir Ahmed Station Master was practically holding the charge of the Station at the relevant time.
He also disclosed that the scheduled time of departure of the train was changed because the engine which was to pull ad carry the train had developed fault and on the arrival of "Tezro" train, its engine was attached to the said goods train. He has also disclosed that the Chips owner has given has full particulars at the time of booking the same which were, to be un-loaded at Karachi and its recipient name was given. As discussed earlier, during the course of investigation none of the real culprits was either arrested or tracted out to prove that how they managed in brining to halt the train at the crime spot and with whose assistance or connivance the attempt of loading narcotics was made. He-has squarely admitted that it was within the lawful duty of (Late) Salim Javed Durrani, petitioner to direct that goods train make departure at proper time fully loaded as far as possible. He has confirmed that the said petitioner was off the duty after 2400 hrs while the train in question made departure from Cantt. Railway Station Peshawar at 0225 hrs on 23.7.1992.
6. From the close scrutiny, the statement of PW-8 is not of that nature and legal worth to reasonably connect the petitioners with the commission of the crime, the only adverse circumstances causing the suspicion to fall on the petitioners was the incident of halting/shunting the train away from Nasarpur Railway Station i,e, the crime spot when according to the schedule it was not required to stay even at the station itself. Who has issued directions in this regard?
Whether it was the act of the driver or guard or the halt was because for some other reasons, all these begging questions have not been answered in any way much less far manner as the entire evidence on this aspect of the case, the vital one, is absolutely inconclusive.
7. In law every criminal act (crime) have three stages, the first one is the preparation, the second one the taking of steps for its commission, the causative effect i,e, consummation/completion of the criminal act but above all inention/mens rea is the most essential and integral part of a crime, therefore, in every crime it is a matter of high importance that the intent and act must both concur to constitute. True that an intention may be inferred from the act of an accused person but the manifestations must provide clear link therewith. There is no evidence whatsoever to unfold the mystery of abnormal halt of the train as to whether it was deliberate orient and petitioners Ali Marian and Akram Khan both were privy to the act of loading narcotics in the wagon facilitating the unknown culprits in this way or it was for ether reasons.
It is an iron clad principle of criminal justice that an accused can not be held guilty for a crime on the basis of probabilities and high presumptions and that no one shall be construed into a crime without legal proof. Probabilities of course may be considered additional circumstances if other evidence incriminating in nature is available against an accused.
8. The learned trial Court, as it appears from the trend and tenor of the judgment particularly at Page-10 Para-15 got influenced from the statement of accused recorded u/S. 161 Cr.P.C. and this influence worked considerably in diverting his judicial mind from the legal course. Such statements are absolutely inadmissible and cannot be looked into for any purpose much less for recording the conviction of an accused on a criminal charge. In the case of Muhammad Farooq Afridi vs. The State and others (W.P. 532/2002 decided on 2.7.2003) this Court has held the following view:- Admissibility and legal worth of statements recorded u/S. 165 of the Customs Act read with Section 161 Cr.P.C.
26. The legal worth of statements recorded u/S. 161 Cr.P.C. is well defined in the said provision itself.
The same is not substantive evidence and can be used only for a very limited purpose of contradicting a witness at the trial so to prevent him from corrupting his testimony by way of dishonest improvements at trial stage".
28. "In view of the above, the statements of accused recorded by the Custom Inspector are, therefore, inadmissible under the law and were used against them in violation of law."
In the above referred case, the accused charged therein were acquitted and the judgments of the trial Court and the appeal Court impugned in the said writ petition were declared without lawful authority and of no legal effect. The conviction and sentences awarded to the said petitioners were, therefore, quashed.
The above view taken by the earlier D.B. is based on correct interpretation of the law and we have no reason nor it is the practice of the right Court to differ in view on a point of law with the earlier D.B., therefore, Following the above principle, in our view, the learned trial Court has committed serious illegality by referring to such statements and using the acne to, an extent of determining the guilt of the petitioners in the present case.
9. In the instant case petitioner (Late) Salim Javed Durrani has cited; according to the rules contained in the Manual by asking the purgation Incharge to attach with the train the wagon loaded with Chips at city Railway Station. At that time as it is the case of the prosecution no narcotics were loaded therein and it was in the transit that the train was brought to halt and the said wagon was selected by the unknown accused for loading in it the drums containing narcotics/Charas, therefore, no link is available in between the two incident. There is also no evidence to the effect that the directions given by the said accused-petitioner was not in a routine inner or the same were in violation of the Manual/Rules on the subject moreso, when the train has made the departure from Cantt. Railway Station Peshawar at a time when the said petitioner's duty hours were already over and another person had taken charge, therefore, we find not a single shred of legal evidence to be made basis for the conviction of the said petitioner.
10.Now adverting to the case of the petitioners Ali Marjan and Akram Khan of connected W.P.
518/2000, in their case too excepting the abnormal halt of the train at the crime spot on other legal evidence is available to provide basis for their conviction on the charges levelled against them.
Even if an adverse inference is drawn against them for the above fact, the same would not constitute an offence of abetment or connivance on their part more particularly when the principal accused had fled away and till date they have not been traced out, therefore, their conviction for abetting an offence or holding them guilty of connivance would be in utter disregard of the settled principle of law and justice. Who, had devised the plan. who hatched the conspiracy, where and what time and place the execution of devised plan was decided and concluded are all such begging questions look seriously askance for which the prosecution has offered no explanation much less legal evidence.
We have gone through the statement of accused recorded u/S. 342 Cr.P.C. where no direct question has been put to them as to why the train was brought to halt when it was not scheduled to have a stay there at Nasirpur Railway Station, however, to a question Ali Marjan petitioner has explained that as the train was not scheduled to have a stop at Nasirpur, therefore, he was not in the knowledge of the arrival of the train. Similarly no direct question has been put to Akram Khan petitioner to explain as to who was responsible for the halting of the train at Nasirpur. Both the said accused were arrested from the train/station but there is no evidence on record that at the time of arrest they made any attempt to escape nor it is shown that they did act abnormally or in un- natural manner. The occurrence has taken place at odd hours of the night away from the Railway Station lights, therefore, it is difficult to draw an inference that they were in the knowledge that the smuggler/unknown accused were loading narcotics in the said wagon of the train mere presumption howsoever adverse may be would not be substitute for legal evidence/proof. We are unable to lay hand on any other corroboratory evidence for holding them guilty for abetting or conniving at the commission of the actual offence more particularly in the circumstances when the incident of abnormal halt of the train has become the most mysterious event in the whole case.
11.There is yet another important legal aspect of the case which has escaped the notice of two learned Courts below. In the instant case only from few slabs samples were taken and were sent to the Chemical Examiner while from the rest of the bulk of quantity of Charas, samples were not taken. Albeit the report is in the positive but to the extent of the smaller quantity. The prosecution has led no reliable evidence that the Charas seized were smuggled into the country, then mere bald assertion that it was of foreign origin simply cannot be believed for want of proof. The initial burden under the law was on the prosecution to have proved through evidence that the Charas was of foreign origin and had been smuggled into the country, then the onus would have shifted to the accused-petitioners to dislodge the initial presumption against them. This aspect of the case is purely a question of law and it was vehemently argued at the bar that the prosecution has failed to establish the charges of smuggling according to the requirements of the provisions of the Customs Act through any evidence even of a little legal worth. The contentions have considerable force because in the absence of any evidence it is difficult rather impossible to hold the other way as suggested by the prosecution, thus, the conviction of the petitioners under the provisions of Section 156((1)(89)/178 read with Section 2(s) of the Customs Act, 1969 was neither legal nor proper. As the conviction of all the petitioners, namely Late Salim Javed Durrani of this petition and petitioners. Ali Marjan and Akram Khan of connected W.P. No, 518/2000 has been based on inadmissible evidence, the same being in disregard of law, therefore, is null and void ab initio and unsustainable.
Accordingly, both these petitions are accepted. The conviction and sentences awarded to the petitioners are set aside and they are acquitted of the charges/levelled against them.