1. ' MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.---Appellant (Altaf Ashraf) is facing trial in case F.I.R.
2. No,35/2007 dated 16-4-2007 for the offence under sections 9 (c)/15 of Control of Narcotic Substances Act, 1997 registered at Police Station ANF, Lahore pending in the Court of Special Judge, C.N.S.A. Lahore. Application of the appellant under section 265-K Cr.P.C. Seeking acquittal from the charge was dismissed by the trial Court vide order dated 16-1-2009 and through this appeal legality of the said order has been challenged on the grounds that though appellant is named in the F.I.R. But the role attributed to him is that on seeing the raiding party he fled away from the spot and that the entire case of the prosecution against the appellant is based upon confessional statement of his co-accused namely Muhammad Khalil made befOre Magistrate under section 164, Cr.P.C. And that the said statement of co-accused cannot be relied upon to convict the appellant in the absence of any independent corroborative piece of evidence. Learned counsel has also relied on case titled Jahangir Malik v. The State (2005 YLR 3258) in support of his arguments.
3. ' Conversely learned counsel for ANF Authorities submits that in addition to the statement of co- accused made under section 164 Cr.P.C. The date available on the record also shows that appellant was the master mind and had supplied the travelling documents i,e, passport, ticket VISA etc. To his co-accused who was deputed by the appellant for taking narcotic out of the country.
4. Learned counsel finally submits that data available on the record is sufficient to show the involvement of the appellant for the commission of heinous offence and that the learned trial Court has rightly dismissed the application of the appellant moved under section 265-K Cr.P.C.
2. In brief the facts of the prosecution case as narrated in the F.I.R. Are that on 15-4-2007 the co- accused of appellant namely Muhammad Khalil was apprehended at Lahore Airport Departure Lounge and two Kilogram of heroin was recovered from his luggage. Statedly Muhammad Khalil was to travel in Flight. TG-506 Scheduled for Bangkok. During interrogation Muhammad Khalil (co- accused) disclosed that the said narcotic was supplied to him by the appellant who is present outside the lounge. On this information raiding party came out of the departure lounge and on seeing them appellant fled away from the spot, statedly later on appellant was arrested on 19-6- 2007. Data available on the record further reveals that during investigation said co-accused of appellant namely Muhammad Khalil was also produced before the Magistrate and he made statement under section 164 Cr.P.C. Stating therein that said narcotic along with travelling documents were supplied to him by the present appellant who had promised to pay him Rs,50,000 on his return from Bangkok.
5. ' During the trial Khalil Ahmed (co-accused) at the time of framing charge confessed his guilt while stating that narcotic weighing two Kilogram was recovered from his luggage at the Lahore Airport on 16-4-2007 at 10-50 p.m. This statement is absolutely silent with regard to the involvement of appellant as one of the co-accused. The relevant portion of the statement reads as under:-- "Stated that on 16-4-2007 at 10-50 p.m. At the ANF Counter, Departure Lounge, Allama Iqbal International Airport Lahore I was intercepted by the ANF authorities and during brief checking 2 Kgs of heroin was retrieved from the secret cavities of suit case then carried by me. I plead guilty to the charge and place myself at the mercy of the Court. I am the sole bread earner of my family consisting of old parents and two younger sisters. I request for a lenient view."
6. Admittedly except the statement of co-accused under section 164 Cr.P.C. Prosecution has not collected an ioto of evidence to establish the involvement of the appellant for the said offence.
7. Similarly statement of co-accused under section 164 Cr.P.C. Was recorded in the absence of appellant and thus no opportunity was proyided to the appellant to cross examine Muhammad Khalil (co-accused). This statement of co-accused cannot be used against the appellant as a substantial piece of evidence especially when he (co-accused) while confessing his guilt before the trial Court had not named the appellant as one of his co-accused.
8. ' It is not safe to rely upon the sole testimony of an approver or accomplice without corroborative piece of evidence. In case titled Federation of Pakistan v. Muhammad Shafi Muhammad, Advocate and 3 others (1994 SCM R 932) the observation of their lordships reads as under:-- "----Testimony of approver or accomplice---Necessity of corroboration-Rule of prudence that the testimony of an approver or accomplice is to be corroborated in material particulars by independent evidence has almost hardened into a rule of law---Conviction on the basis of sole testimony if an approver or accomplice thus is not safe."
9. ' Similar view has been taken by a Division Bench of Karachi High Court in case titled Jahangir Malik v. The State (2005 YLR 3258). The same reads as under:-- "Evidence of an accomplice cannot be accepted on its face value for convicting a co-accused unless it is corroborated in material particulars by other reliable and cogent evidence."
10. ' On the other hand in the present case as observed earlier not an jota of evidence except statement under section 164, Cr.P.C. Of co-accused is available on the record to connect the appellant with the commission of offence.
11. ' For the said reasons, we are of the view that the impugned order is not sustainable the same is set aside and appellant stands acquitted from the charge. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.