' AZIZULLAH M. MEMON, J.---Learned Special Court-II (CNS) Karachi vide judgment dated 10th June, 2004 (impugned through these appeals) found present accused/appellants guilty for committing offence punishable under section 9C of Control of Narcotic Substances Act, 1997 and sentenced each of them to suffer R.I. For 10 years and also each to pay fine of Rs,1,00,000 (Rupees one lac) or in default of such payment further to suffer imprisonment for six months, with benefit under section 382-B, Cr.P.C. Pertaining to Special Case No,75 of 2004 (Old No,1402 of 2003).
2. Heard Mr. Shaukat Hayat and Mr.Aamir Mansoob Qureshi for appellants and Mr. S. Mahmood Alam Rizvi Standing Counsel for the State.
3. Vide short order dated 31st March, 2005 both the appeals were allowed and both appellants were directed to be released forthwith if not required in any other case; following are the reasons for the said short order.
4. Prosecution story, briefly, is as under:-- ' On 2-8-2001 complainant Inspector Khaliduddin of ANF Clifton Police Station along with Assistant Director Mahmood Baig Constable Siraj Khan, Constable Shahid Raza and other ANF Officials received information, on the basis whereof they proceeded to the Excise Office situated at Grumandir, Karachi; on their reaching there, the ANF party (in presence of Excise and Taxation Officer Shaukat Hussain Bukhari AETO Sohrab Khan and Excise Inspector Muhammad Salim) got opened the room of appellant AETO Muhammad Ashraf Shaheen and that the appellant Excise Inspector Hussain Abid Jafri and then checked the articles/property articles therein; it is alleged that 3 packets of heroin powder were unlawfully retained in their possession by the appellants weighing 2 kilograms and 900 grams which were recovered from the Almirah lying in the said room 5 bottles of wine were also recovered from the same; 200 grams of heroin powder were taken out from the said recovered property for referring the same for chemical examination; and one bottle of wine (out of the said recovered property) were also separately taken out for referring the same for chemical examination; it was further alleged that one other packet containing heroin powder of the weight of 50 grams was also recovered from the wooden box, out of which 10 grams were taken out for chemical analysis. Such mashirnamna of recovery was prepared at the spot in presence of mashirs; the said property were duly sealed and were then taken to the Police Station ANF Clifton where complainant Inspector Khalidduin Khan registered F.I.R. On behalf of the State; after the investigation got completed, appellants were sent up to the learned Special Court for Anti- Narcotics to face the trial.
5. Both the appellants pleaded not guilty to the charge framed against them and claimed to be tried.
6. In support of its case, prosecution examined Inspector Khaliduddin at Exh.11, who produced memo. Of recovery of the case property, chemical report issued by the Government Chemical Analyst, F.I.R. Of the case at Exh.P.4,memo. Of recovery of the weapons and ammunition from the room of appellants at Exh.P.5., memo. Of returning of the properties to the ETO at Exh. P.6, copy of F.I.R. No,186/2001 at exhibit P.7, a letter at Exh.P.8; prosecution also examined AETO Haji Sohrab Khan mashir at Exh. 13, Excise and Taxation Officer Faraz Soomro at Exh. 14, Excise Inspector Muhammad Salim and S.I. Jahangir Khan; then the prosecution closed its side of the evidence.
7. Appellant Hussain Abid Jafferi denied the allegation in his statement under section 342, Cr.P.C.
And stated that the Almirah and the box were never in their exclusive possession and/or control and further that the room in question was for the common use of officers as well as of the subordinate staff of the Excise and Taxation Department, who used to perform their officials duties in 3 different shifts, from time to A time. They further stated that the witnesses falsely deposed against them due to departmental rivalries; appellant Muhammad Ashraf Shaheen stated that he never used the said room where from the recoveries were allegedly made. They did not examine themselves as their defence witnesses under section 340(2), Cr.P.C. Nor examined anybody in their defence.
8. It may be noted down here that separate challans were submitted before the Judicial Magistrate of the competent jurisdiction in respect Of wine and liquor allegedly recovered from the possession of the appellants, as alleged.
9. Learned trial Judge believed the depositions of complainant/Investigating Officer Khaliduddin AETO Haji Sohrab, Inspector Muhammad Siraj Khan mashir and Inspector Muhammad Salim to be true and on the basis thereof he recorded the finding that the prosecution proved the guilt against the accused/appellants; they were convicted and sentenced as stated above.
10. The evidence of the prosecution witnesses has been carefully gone through by us; AETO Haji Sohrab Chandio deposed before the trial Court that room of Abid Jafri and Ashraf Shaheen was pointed out by ETO Faraz Soomro which was found locked from outside and was broken open, and the raiding party then entered therein, search was made and heroin type powder was recovered from wooden box/trunk lying in the room; some arms/weapons were also recovered from there.
This witness further deposed apart from that so many sealed case properties were lying thereon names of accused persons had been inscribed for the purpose of identity, in the cross- examination this witness stated there was neither sign board of the accused persons on the door of the room nor on the Almirah nor on the wooden box/trunk did not know who used to sit in that room and to use the Almirah and the box; further that he did not know as to who had access to the said Almirah and the wooden box. He further admitted that no mention was made in the mashirnama of recovery as to who had pointed towards the office room to conclusively say that the same was in the possession of appellants Abid Jafri and Ashraf Shaheen. He further admitted that no mention is made in that mashirnama of recovery as well as in the 161, Cr.P.C. Statements of the witnesses regarding any lock having been put on the Almirah (out of which recoveries were made) and further that memos. Of the recoveries mention that so many sealed and unsealed properties from the year 1998 to 2003 were recovered. He further stated in the cross-examination it is correct that Article A contains brown sand stones and it no way can be said as brown heroin powder; to my knowledge, at the time of recovery the powder was of white colour but not of the shape of brown sand stone.
11. P.W. Muhammad Siraj Khan deposed before the trial Court that it is correct that he had no information about the room of the accused persons, the wooden box and the Almirah.
12. P.W. Muhammad Salim also deposed in his cross-examination that Article A produced in Court during the trial did not contain white powder as a whole, "comprising of some white small substance but could say as to what it comprised of in the real sense. It is correct that some dark white colour sand stone like pieces are lying in Article A. I cannot say if the same is not hereon.
13. The appellants are not shown to have been available at the place of the alleged recovery. So also the evidence clearly indicates that the Almirah and the wooden box were in the common use of many officials of the Excise and Taxation Department and thereby it stands proved that the appellant was not in the exclusive possession thereof: The identification of the recovered material as heroin powder (produced before the learned trial Court) is also stated by the witnesses to be stone like material.
14. The word possession implies a physical capacity to deal with the thing as one likes to the exclusion of every one else and a determination to exercise that physical power on one's own behalf. It implies dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity to the object.
15. The officials of the Anti-Narcotics Force entered into an official premises in joint possession of many officers/officials of the Excise and Taxation Department; as deposed to by the witnesses. It has come in the evidence that most of the properties found lying in the Almirah were the case- properties of the cases, trial wherein either proceeded before the Competent Courts of law or were still pending. All such facts clearly indicate that the appellants were neither in the exclusive use of the Almirah nor in the exclusive possession of the recovered material which were alleged to be in their possession. Thus, prosecution failed to prove its case against the appellants. Hence vide above stated short order, both these appeals were allowed and the impugned judgment of conviction and sentence awarded by the trial Court against the appellants was set aside, and they were acquitted of the charge, with directions to release them forthwith it not required in any other custody case. Above are the reasons for the said short order.