RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Criminal Appeal No,178 of 2003 and Criminal Jail Appeals Nos.301 of 2003, 302 of 2003 and 303 of 2003 as they arise out of a single judgment.
2. The present appeals are directed against the judgment dated 12-5-2003 passed by the learned Special Judge Control of Narcotic Substances Hyderabad in Special Case No, 6 of 1999 (State v. Taj Wali and others). The learned Judge under the impugned judgment convicted the appellants under section 9(c), Control of Narcotic Substances Act, .1997 (hereinafter referred to as "Act 1997") and sentenced each of them to suffer imprisonment for life and fine of Rs,50,000 or in default thereof to suffer S.I. For six months 'with benefit of section 382-B, Cr.P.C. Whereas accused Abdul Malik Raj Wali, Amir Khan and Shamroz Khan were acquitted.
3. The brief' facts giving rise to the present appeals are that on 30-12-1998 at 8-40 a.m. The complainant Akhtar Hussain, Assistant Director ANF of Police Station Anti-Narcotics Force Hyderabad received spy information that in the Narcotic and Gambling Den of Daud Khan Pathan situated in Bohri compound Hali Road, Hyderabad, run by his son, brothers and nephews, huge quantity of Narcotics, arms and ammunition were available. On the said information,, he in the company of 30 officials of Qasim Rangers some of the officials were called from Karachi and after holding a meeting reached there at about 1-00 p.m. They raided the Den of Daud Pathan. When they entered the Bohri compound, some persons fired at the raiding party from all directions. The complainant saw the appellant Taj Wali armed with Kalashnikov, appellants Abdul Majeed, Rustam Khan and another Abdul Majeed armed with pistols. They were firing at them. Thereafter the above named persons entered a room of the Den. The complainant and Rangers also entered in the said room. They found the above named appellants present. The other remaining appellants were found already present there. All the appellants were trying to dispose of the Narcotics. In the meantime accused Aslam Khan and some of his others, about 50 accomplices ran away from there after making firing. Thereafter the raiding party caught the appellants. From the possession of the appellant Taj Wali, one Kalashnikov and its 15 rounds were secured. From the possession of Majeed Khan son of Abdul Haleem, Rustam Khan and Abdul Majeed son of Abdul Hameed, pistols and bullets were secured. From further search of the room, two bags were found lying on the table.
On opening one bag it was found to contain Charas weighing 72-1/2 kgs and the other bag contained 15 kgs of opium, which were secured 20 kgs of Charas and 5 kgs of opium were separated as samples for sending them to Chemical Analyzer for examination and report and the same were sealed. The remaining property was also sealed. The appellants and the properties were brought to the police station where the complainant lodged the report at 3-00 p.m. The samples were sent to Chemical Analyzer. The report was in positive. After completing the usual investigation the appellants and the acquitted accused were challaned in the Court.
4. The learned Special Judge tried the appellants and the acquitted accused. He convicted the appellants but acquitted the accused Abdul Malik, Raj Wali, Amir Khan and Shamroz Khan under the impugned judgment. The appellants were dissatisfied with the said judgment therefore they have filed the present appeals.
5. Mr. Muhammad Nawaz Khan Murwat learned Advocate for the seven appellants of Criminal Appeal No,178 of 2003 argued that there was no encounter between the raiding party and the appellants; that there is delay in lodging the F I R; that the property sent to the Chemical Analyzer for examination and report was not produced before the trial Court; that the police had information which they received in the morning time but they did not obtain any warrant for the search of the place as such they have violated the provisions of sections 20 and 21 of the Act 1997; that there is no proof that the Charas and Opium were secured from the physical possession of any of the appellants or that the said property was under their constructive possession because the property was lying on the table and it was not secured from any of the appellants; that there is conflict between Chemical Analyzer report and the oral evidence; that there were more than 50 persons in the room out of them 50 persons ran away therefore it is not possible to fix the responsibility of the property lying on the table of the room to any of the appellants; that the witnesses have improved their statements from their police statements and that the provisions of section 103, Cr. P. C. Have been violated. He has further argued that the case was investigated by complainant, who is highly interested in the case; that if the investigation would have been conducted by any other officer then the real facts could have been brought on the record and the appellants could have been proved to be innocent. He has further argued that the complainant has prepared this false case and involved the appellants to save his and other raiding party members from the murder of two persons who were murdered by them from their firing. In support of his arguments he has relied upon Iltaf v. State 1996 SCMR 167; Pomi v. State 1995 MLD 927; Ghulam Muhammad v. State 1997 PCr.LJ 805; Maqsooda Begum v. Ghulam Qadir 1996 SCMR 1539; Sayed Karim v. Anti-Narcotic Force PLD 2003 Karachi 606; Tariq Pervez v. State 1995 SCMR 1345, Tila Muhammad v. State 2003 PCr.LJ 1379 and Ghoush Bakhsh v. State 2000 MLD 618. The other appellants have adopted the arguments of Mr. Marwat and further added that they have been involved in this case falsely.
6. On the other hand the learned Special Prosecutor ANF has stated that the three prosecution witnesses have fully supported the prosecution case and implicated the appellants with the commission of the offence; that the appellants were trying to remove the Charas and Opium but they were apprehended at the spot; that the property was secured from the room which was in the possession of the appellants who are friends and relatives of Daud Khan a Narcotic smuggler.
However he has not supported the case of four appellants Taj Wali, Majeed Khan, Rustam Khan and Abdul Majeed who after firing at the raiding party entered the room as they were not in possession of Narcotic Substances. He has supported the case against the remaining appellants.
7. We have given due consideration to the arguments, gone through the evidence with the help of the learned Advocate for the appellants and find that the prosecution examined complainant Akhtar Hussain Assistant Director. Inspector ANF Ghulam Abbas, constable ANF Rahim Bux, two Mashirs of recovery, arrest of the respondents and I.O.
8. P.W.1 was Inspector Ghulam Abbas. He stated in his deposition that on 30-12-1998, the complainant Akhtar Hussain Afridi in charge ANF Police Station received information that in the Den of Daud Pathan situated at Bohri Compound, huge quantity of narcotic was available, therefore, he along with other staff of ANF left ANF Police Station at 11-45 a.m. And went to the Office of Rangers, situated in Latifabad, Hyderabad, where other staff of Rangers including Col. Javed Aslam and Deputy Director Law Ahmed Saba were present, who reached from Karachi. They held a meeting and chalked out a program to raid the Den of Daud Pathan. In all ten vehicles went to Bohri compound to raid the den of Daud Pathan. They asked persons to act as mashirs but they declined, therefore, at about 1-00 p.m. They entered in the Bohri compound but the culprits Taj Wali, armed with Kalashnikov, Majeed Khan, Rustam, another Majeed armed with pistols started firing on the raiding party. Thereafter they entered in the den. The complainant and, raiding party chased them. They went inside the room where they found the other respondents also present. The above named 4 respondents were also there. All were armed with weapons. On the table two bundles were lying. The respondents tried to remove the said bundles but they were restrained and then they were apprehended. From their possession arms and ammunition were secured. One of the bundles, lying on the table was opened which contained 72-1/2 kgs. Of Charas. Another bundle was opened which contained 15 kgs of opium Twenty slabs of Charas were separated as sample. Five kilograms of opium were also separated for sending them to Chemical Analyzer for examination.
Both the properties were sealed. The remaining property was also sealed. One of the officials of ANF informed the complainant that two persons were murdered due to unknown firing and their bodies were lying there. Such Mashirnama was prepared and he signed it. He further deposed that the samples sent to Chemical Analyzer were not available in the Court.
9. In the cross-examination he admitted that he did not disclose in his police statement that the staff of ANF from Karachi arrived at Hyderabad Qasim Rangers and there was a meeting before the raid; that when they appeared at Rohri compound there Was a direct firing upon them and the staff of Rangers. In the cross-examination he further disclosed that in his police statement he had stated, that on the day of the raid they chased the accused; that when the accused tried to take away narcotics they prevented them from doing so and made them to sit by raising their hands; that from the possession of Taj Wali 15 live bullets of Kalashnikov were secured. From accused Saeed Majeed two live bullets were secured. From accused Saeed and another Majeed 3 live bullets were secured. When these pieces of evidence were confronted to the Investigating Officer, the complainant Akhtar who recorded the statement of Ghulam Abbas, he disclosed that P.W.
Ghulam Abbas did not state in his 161 Cr. P. C. Statement that as soon as they entered in the Bohri compound accused started firing at the Rangers; that they chased the accused; that they prevented the accused from removing the narcotics; that accused surrendered before them by raising their hands; that 15 rounds of Kalashnikov were recovered from accused Taj Wali; that from accused Saeed and Majeed three live bullets and from Rustam, and another Majeed two live bullets were secured. Thus the Mashir Ghulam Abbas has made improvements in his statement before the A Court, In the cross-examination he further stated that the Rangers and staff of ANF had not fired at the accused. He further deposed that ANF staff including himself did not carry arms and ammunition to Hali Road P.S
10. The evidence of second Mashir Rahim Bux and complainant are also on the above lines as disclosed by Mashir Ghulam Abbas.
11. Mashir Rahim Bux further deposed that when the complainant reached Bohri compound there was firing from their front side and then they proceeded towards the accused but the above named 4 accused persons started running towards a room situated in the Bohri compound. In the cross-examination he deposed that he had stated in his police statement that complainant Afridi informed him that he had received the spy information; that in the office of Qasim Rangers a meeting of officers was held before the raid was conducted; that the accused started firing at them; that the accused then ran and took shelter in a room; that the accused were told to surrender and raise their hands by pointing their weapons at them; that they recovered 15 rounds of Kalshnikovs; that the charas recovered in the case consisted of different sizes of slabs viz. Big and small; that four cutters were recovered and that the two persons who died were died because of the firing of the accused. The Investigating Officer was inquired as to whether the witness had disclosed the above facts in his statement recorded under section 161, Cr.P.C. To which he replied in negative. Thus this witness also made improvements in his statement recorded during the course of his evidence. He admitted that B he had not stated in the police statement that they went to the office of Rangers; that from the accused Rustam 5 live bullets, from the accused Saeed Majeed two live bullets and from another accused Majeed two live bullets were recovered. In the cross- examination he further disclosed that the accused who were armed with firearm weapons did not fire at them when they entered in the room; that the accused were jointly present in the room and were standing by the side of front wall of the room. He also confirmed the position that samples sent to Chemical Analyzer were not available in the Court.
12. The complainant Akhtar Hussain who also conducted the investigation of the case further deposed that he received the spy information at about 8-40 a.m. In the cross-examination he admitted that no one from the Rangers or staff of ANF fired in their defence and as soon as the culprits started firing and ran towards the den they alighted from the vehicles and chased them; that when they reached in the room they saw the accused standing in the room in haphazard manner; that the staff of Rangers had not made firing on the day of the incident. He further stated that he did not state in the F.I.R. Or challan that the firing was made from Meenara of the Mosque; that the accused shouted that narcotics be removed; that Taj Wali, Habib Khan and 50 persons ran away from the place of incident; that the room of the incident was about 12' x 14' and the table 4'x6'.
He also confirmed that the samples sent to Chemical Analyzer were not available in the Court.
13. The prosecution also examined Inspector, Abid Zulifikar, the Incharge ANF P.S. Hyderabad. As the complainant and his successor were transferred, therefore, he simply submitted supplementary challan against the acquitted accused because the Court granted them pre-arrest bail.
14. After examining the evidence of all the three witnesses we find that all the three witnesses have made improvements in their statements recorded by the Court from the FIR and 161, Cr. P.0 statements on material aspects of the case. The said improvements and contradictions have been proved in accordance with law. In such a situation, the evidence of such witnesses requires strong and independent corroboration.
15. "However, we have further minutely examined their evidence and find that four accused persons who were allegedly firing at the police party went inside the den and there was no firing made by the raiding party at the accused persons in their defence. When these four accused entered in the room, they were not carrying any narcotics substances with them and the learned Special Prosecutor has rightly stated that the physical possession of the narcotics in the case of these four respondents has not been proved as the bundles were already lying in the room. We also agree with the above submission of the learned Special Prosecutor."
16. According to the complainant when they entered in the room they saw, not only, the four respondents who entered in the room after the alleged firing at the raiding party, but more than 60 persons were present. Out of them more than 50 persons ran away. The complainant further admitted that the room was 12' x 14', and a table 6' x 4', was lying in the room. It is not appealing to the common sense that a group of more than 65 persons could be accommodated in such a small room. However, there is no evidence on the record that the said room had two doors and the culprits ran away from another door. If the room had only one door, then how it was possible that more than 50 persons could have run away from the door. When the raiding party, consisting of Rangers and ANF officials, who came in 10/12 vehicles, were available outside the door of the said room. These facts have adversely affected the prosecution story.
17. Apart from the above facts, it is the case of the prosecution that Charas and opium were lying on the table in two bundles and the respondents were trying to remove the same. If they wanted to remove the bundles, then they could have attempted to remove the same from the table but no bundle was lying on the ground or on any other place, except, on the table. However according to Mashir Rahim Bux the appellants were standing by the side of wall and according to complainant the appellants were standing in the room in haphazard manner. In such a situation how they were removing the Charas and opium when the same were lying in two bundles? If the bundles were being removed from the table then in doing so the bundles would have been not on the table but the bundles would have been in the hands of some of the appellants or lying on the ground.
Nothing has been said by any of the witnesses that the bundles were in the hands of any appellants or lying on the ground, but all the P.Ws have stated that the bundles were lying on the table and the appellants were standing by the side of wall in haphazard manner. These facts are not fitting with the circumstances of the case.
18. Both the Mashirs did not state in their police statements that the respondents had tried to remove the narcotic substances. The said contradictions were proved through the complainant, Investigating Officer who recorded their statements. The evidence of the complainant and Investigating Officer is that the accused had shouted that the narcotics be removed but he did not state such facts in his FIR as admitted by him. As such these statements are improvements during the course of the evidence, which are on the material points of the case and that are going to the root of the case. Therefore, these improvements cannot be taken lightly.
19.When more than 65 persons were available in the room at the time when the raiding party entered in the said room, as per evidence the complainant, then individual liability of physical possession of articles lying on the table cannot be fixed on any particular accused person. Nobody was caught from those 50 persons who ran away from the room. But the case of the prosecution is that the present respondents were arrested from the room. Mere presence in the room would not be enough to connect the respondents with the physical possession of the narcotics lying on the table in the room unless a positive evidence is led that the room or den belonged to those persons or that they were in its constructive possession or they were holding or removing the bundles but no such evidence has been led by the prosecution on the above aspects of the case to prove the possession of the room or narcotics by the respondents so as to fix the responsibility of possession of Narcotics upon them.
20.Furthermore, if there was firing made by the four respondents then the police could have recovered empty cartridges or bullets from the said place but no efforts have been made to secure such circumstantial piece of evidence. It is the case of the prosecution that two persons died at the spot because of the firing and nobody knows as to how those two persons died the complainant exonerated himself and the members of the raiding party from making fire-arm shots at the respondents in their self defence. Mashir Ghulam Abass went one step further by stating that they had no weapons with them thus a doubt has been created about firing made upon the raiding party by the four respondents. The murders of two persons remain the mystery which has not been solved. The allegation of the respondents is that the said murders were committed by the raiding party and the false case has been prepared to save the raiding party from the murders.
This Court is not in a position to give findings in these proceedings as to who committed the murders but the Court can take into consideration such facts to determine the evidentiary value of the statements of P. Ws.
21. Furthermore, according to Mashir Ghulam Abbas 20 slabs of Charas as sample were sealed at the spot whereas the complainant and second Mashir Rahim Bux deposed that the said Charas weighed 20 Kgs. The Chemical Analyzer report has been examined which shows that the expert had received two parcels. The contents of parcel No,1 as per report are as under:- "Parcel No,1 containing (16) sixteen packets each packet containing (2) two slabs of charas wrapped in plastic paper and four packets each packet containing one slab of charas (Total 36 slabs) each wrapped in plastic."
22. According to Chemical Analyzer report the Charas received by the expert was in 36 slabs whereas Mashir Ghulam Abass disclosed that 20 slabs of Charas were sealed in the packet, that was sent to Chemical Analyzer for examination and report. It is clear that the Charas received by chemical analyazer as sample is not tallying with the number of slabs of the Charas sent by the prosecution as per details given by the Mashir Ghulam Abass. The remaining two witnesses did not disclose the number of the slabs available in the packet. When there is conflict between the number of slabs in between the statements of witnesses and the Chemical Analyzer report then it has become necessary that the same should have F been examined fy the Court at the time of trial or the packet should have been shown to the witnesses to ascertain whether the sample sent to Chemical Analyzer was the sample which was prepared by them and sealed at the spot. But such property was never produced before the trial Court as such the trial Court was deprived of examining the valuable pieces of evidence so as to resolve the controversy in the matter.
Furthermore according to the witnesses each slab of Charas was 1 kg. And there were 72 slabs of Charas along with a slab of 1/2 kg. Therefore, the total weight of the Charas was 72-1/2 kgs. But from the Chemical Report the said fact has been belied as each slab received by the Chemical Analyzer was not weighing 1 kg. Thus a doubt has been created about the samples of charas sent to Chemical Analyzer. In these circumstances, a heavy responsibility lies upon the prosecution to produce the sample before the trial Court for its examination. Though the Chemical Analyzer reported that only 100 grams of Charas were consumed and the remaining property has sealed which was to be collected from his office within 15 days from the date of the said report. But the prosecution did not care to collect the sample from the Chemical Analyzer or if they had collected then the same was not produced before the Court for the reasons best known to them. As such a valuable piece of evidence was withheld by the prosecution which has adversely affected the prosecution story.
23. It is pertinent to point out that under section 21 of the Narcotic' Substances Act, 1997 the raiding party was required to obtain a warrart. For the search of any place. The said section reads as under:-- "21. Power of entry, search seizure and arrest without warrant.-(1) Where an officer, not below the rank of Sub-Inspector of police or equivalent authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape such officer may;
(a) enter into any such building, place, premises or conveyance;
(b) break open any door and remove any other obstacle to such entry in case of resistance;
(c) seize such narcotic drugs, psychotropic substances and controlled substances and other materials used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and
(d) detain, search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under sub-clause (1), the officer referred to in the subsection shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer."
24. The Honourable Supreme Court of Pakistan in the case of State v. Hemjo reported in 2003 SCMR 881 examined the implication of section 21 of Act 1997 and at page 883 it has been observed as under: "An Officer not below the rank of Sub-Inspector, police, or equivalent authorized in this behalf by the Federal Government or Provincial Government in exercise of his power under section 21 of the Control of Narcotic Substances Act, 1997, if he is satisfied that a warrant of arrest as provided under section 20 of the Act cannot be obtained, can enter into the premises without a search warrant and make search on the basis of personal knowledge or on receipt of information of commission of an offence mentioned in the above Act, by any person. In the present case, the Excise Inspector on receipt of information, went to the house of respondent and made his personal search and then by making house search, recovered Charas from the bed room of the house, without satisfying the requirement of section 21 ibid. The combined study of sections 20 and 21 of the Control of Narcotic Substances Act, 1997 would show that only in exceptional cases in which the search warrant cannot possibly be obtained before conducting the raid, an officer authorized in this behalf can proceed for conduct of raid without the warrant but this power cannot be allowed to be used in every case in the normal circumstances
24. Thus its is clear that the requirement of the search warrant can be dispensed with if the search warrant cannot possibly be obtained from the Court before the search is conducted. In the present case, the complainant received spy information at about 8-40 a.m. Apparently it was conveyed to headquarter at Karachi as the Rangers from Karachi and Deputy Director Law Mr. Ahrnad Saba came from Karachi and reached at Hyderabad at 11-45 a.m. Then a meeting took place in the Qasim Rangers Headquarter and thereafter the raiding party reached the Bohri compound at 1-00 p.m. To raid the den of Daud Pathan. The date of the incident was 30-12-1998. It was Wednesday.
The Courts were opened. The complainant had ample opportunity and time to have obtained the search warrant from the Court of Magistrate to conduct the raid and search the den of Daud Pathan as per section 21 of the Act, 1997 but no efforts were made by the raiding party to obtain such warrant. They have clearly disobeyed and violated the provisions of section 21 of Act, 1997. It is well-settled principle of law that if law provides a particular thing to J be done in a particular manner then it should be done in that manner or it should not be done at all. We are conscious of the fact that noncompliance of section 21 would not by itself vitiate the trial or the trial of the accused can be declared a bad in the eye of law but the anxiety which the Hon'ble Supreme Court of Pakistan had shown in the above mentioned authority should be viewed seriously as the offence involve capital punishment therefore the relevant authorities should not conduct themselves in violation of law in every case in the normal circumstances. K The warrants can be dispensed with in exceptional cases in which the search warrant cannot possibly be obtained before conducting a raid but a general licence cannot be given to the raiding party to violate the statutory provision of law. The evidentiary value of raid conducted in violation of section 21 of Act, 1997 has been reduced . As such the Court should be on guards while accepting such piece of evidence unless some explanation is furnished by the prosecution to justify the raid in violation of section 21 of the Act, 1997.
26. It is pertinent to point out that Akhtar Hussian Afridi Assistant Director ANF received the spy information, conducted the raid in violation of section 21 of Act, 1997, without furnishing any explanation, lodged the F.I.R. Conducted the entire investigation of the .Case as such he was complainant, witness and Investigation Officer. Furthermore,' the provisions of section 103, Cr.P.C.
Are not applicable in narcotics cases. L. The offence involves capital punishment and the case rests upon only ANF officials, therefore, heavy responsibility lies upon the prosecution to produce a solid piece of evidence, which eliminates all possibilities of false involvement of an accused person, and the evidence should be free from all doubts. In these types of cases, the Court should also scrutinize the evidence very minutely. If a single doubt appears in the evidence, then it should be liberally given to the accused, because it is very easy to involve an innocent person in these types of cases as all the witnesses are invariably police witnesses and subordinate to the complainant who is also invariably an Investigation Officer. The complainant is highly interested in the case as he had detected the offence and would like to see L that the accused should be convicted therefore he should not be made the judge of his own cause. As such his version should be investigated by another officer, which will ensure the fair investigation of the complaint of the complainant.
27.The practice of complainant being also an Investigating Officer is increasing day by day, which should be stopped immediately: The investigation should be conducted by entrusting the same to any other police official preferably to a superior officer to that of the designation of the complainant. In this way, a check can be placed on manipulation of the evidence by the complainant against an innocent person, which is very essential in the present day's time, when we receive complaints of false involvement of the accused persons due to some personal animosity with the police or releasing the real culprits because of various reasons police officials who are themselves becoming complainants, witnesses Thus ,it is high time that a check should be placed on the activities of the M and Investigating Officers. Under these circumstances we direct the Director General ANF, I.G. Police, Secretary Excise and Taxation and other concerned officers of other agencies who are involved in the investigation of those types of cases to issue a direction to their subordinates who are detecting the cases that they should not act as Investigating Officers and after detecting the cases, the investigation of, the cases should be entrusted to a superior officer of the complainant. In this way the grievance of the accused persons would be redressed as arguments are being advanced before us that had the investigation been conducted by any other superior police official then the true facts could have been brought on the record and the false involvement of the accused persons could have been checked at the very initial stage o investigation. This will also ensure fair play between the parties.
28.After considering the material available on the record we are of the considered view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt.
The learned Special Prosecutor has also not supported the prosecution case in respect of the respondents Taj Wali, Abdul Majid son of Abdul Hamid, Rustam and S. Majeed Khan son of Haji Abdul Haleem, under these circumstances we gave the benefit of doubt to the respondents while passing short order.
29.Above are the reasons of our short order dated 27-9-2001 by which we had allowed the appeals and acquitted the respondents.
30.A copy of this judgment be sent to D.G. ANF, I.-G. Police Sindh, Secretary Excise and Taxation Officers and other officers who are involved in the investigation of Narcotic cases for compliance of the direction. Such report be furnished through M.I.T. Within 30 days of receipt of the copy of the Judgment.