' ABDUL HAMEED DOGAR, C.J.--- These appeals with leave of this Court are directed against judgment dated 25-5-2004 passed by learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No,130 of 2001 filed by appellant Muhammad Arif Baloch was dismissed, however, the sentence of death was converted into life imprisonment. The sentence of fine amounting to Rs,10,00,000 (Rupees one million) or in default thereof to undergo R.I. For two years and benefit of section 382-B, Cr.P.C. Was also granted to the appellant/accused.
2. Briefly stated facts giving rise to the filing of F.I.R. No,17 of 1997 are that one Khalid Khan during investigation of case F.I.R. No,37 of 1997 disclosed that his group was preparing to smuggle heavy quantity of narcotics abroad which was concealed at a place situated in Bahawalpur and that appellants Arif Baloch and Haji Salim Memon could point out the said place. Resultantly the appellant was arrested from Karachi on 18-9-1997. During investigation, appellant disclosed that two and a half tons of superior quality "Charas" was concealed by him and his group members, namely, Haji Salim Memon, Khalid Khan, Atta Muhammad Shah, Syed Tanvir Hussain Naqvi and Faiz Mustafa Bukhari, in Tehsil Ahmedpur Sharqia for exporting to Australia. A raiding party consisting of Major Abdul Rab, complainant Ahmed Jalil Raja D.S.P., ANF Lahore, Syed Hassan Ijaz, Deputy Director, Subedar Pervaiz Iqbal, Hawaldar Muhammad Sarwar SSG, Sepoy Zain Ullah and a number of persons from ANF, was constituted and on the pointation of appellant Muhammad Arif Baloch a raid was conducted in a deserted factory near Chowk Bhatta, Tehsil Ahmed Pur Sharqia District Bahawalpur. After breaking lock of the building 120 plastic Torras were recovered which contained 20 packets each weighing 2400 kilograms of Charas, 10 grams, from each packet, were separated for chemical examination.
3. Investigation was carried out and on completion thereof the accused persons were challaned to the Court of Special Judge, ANF, Lahore for trial, under section 9(c) and 15 of the Control of Narcotic Substances Act, 1997. It would be pertinent to mention here that during trial, except the appellant, the co-accused persons namely Muhammad Salim Memon, Syed Tanvir Hussain Naqvi, Khalid Khan and Atta Muhammad Shah were acquitted of the charge by the learned trial Court, under section 265-K, Cr.P.C.
4. In his statement recorded under section 342, Cr.P.C. Appellant pleaded false implication and while answering to the question as to why the P.Ws. Had deposed against him he replied as under:- -- "As a matter of fact I was arrested from Karachi on the pretext of extorting a confession against one Senator Asif Ali Zardari husband of former Prime Minister Mohtarama Benazir Bhutto which I denied.
Consequently to pressurize me further I was tortured, humiliated and implicated in the instant case along with other fabricated cases but I resisted for the truth."
5. On conclusion of the trial, appellant Muhammad Arif Baloch was convicted under section 9(c) of the C.N.S.A, 1997 and sentenced to death along with a fine of Rs,10,00,000 (Rupees one million) or in default thereof to further undergo R.I. For two years.
6. Feeling aggrieved appellant filed Criminal Appeal No,130 of 2001 which was dismissed, however, the sentence of death was converted into life imprisonment vide impugned judgment.
7. We have heard Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court for the appellant and Sh. Riazul Haque, learned Special Prosecutor ANF, at length and have gone through the record and proceedings of the case in minute particulars.
8. It is vehemently contended by Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court appearing on behalf of appellant Muhammad Arif Baloch that arrest of the appellant in case F.I.R. No,37 of Police Station ANF, Lahore and his subsequent arrest in F.I.R.No,17 of Police Station ANF, Bahawalpur was entirely afflicted by malice and political victimization that has been overlooked by the learned Courts below. According to him appellant has been falsely implicated in this case with ulterior motives and the sentence of appellant is not maintainable as the learned trial Court had acquitted the actual culprits under section 265-K, Cr.P.C. And has thrown the whole burden upon the appellant. According to him appellant is a highly respectable businessm an but was maliciously implicated in the case with a view to obtain alleged confessional statement under duress against Senator Asif Ali Zardari husband of the former Prime Minister of Pakistan. Learned counsel further contended that on the basis of the aforesaid alleged statement case F.I.R. No,525 was registered at Police Qila Gujjar Singh against the appellant as well as Senator Asif Ali Zardari. Since the appellant did not support his so-called confessional statement, therefore, as a punishment he was involved in the present case. As regard the alleged recovery of narcotics learned counsel contended that the same is highly doubtful as neither any person from the public was not associated with the raid proceedings nor police station ANF Bahawalpur was intimated about the raid being conducted which clearly casts doubts regarding the story of the prosecution connecting the appellant with the alleged crime. Learned counsel contended that entire investigation of the case was conducted in a dishonest manner, as the alleged recovery of Charas was affected from the area located within the territorial jurisdiction of police station ANF Bahawalpur but except registration of the formal F.I.R. The entire investigation was conducted by ANF, Lahore without any justification and order. Learned counsel prays that in view of above submissions the conviction and sentence of the appellant be set aside and he be acquitted of the charge.
9. On the other hand Sh. Riazul Haque, learned Special Prosecutor ANF controverted the above contentions and contended that since the learned High Court has already taken a lenient view and he has filed Appeal No,639 of 2006 for enhancement of the sentence of the accused Muhammad Arif Baloch, therefore, he may not be acquitted of the charge. He contended that in the circumstances of the case the learned trial Court was justified in granting sentence of death to the accused.
10. We have considered the arguments raised at bar by the learned counsel for the parties and have also gone through the record and proceedings of the case in minute particulars. Appellant Muhammad Arif Baloch in his statement recorded under section 342, Cr.P.C. Has taken the specific plea that he was arrested from Karachi in order to extract a confession from him against Senator Asif Ali Zardari to which he did not accede. Consequently he was implicated in the present case but this aspect of the matter has not been taken into account by the Court below. Moreover, all the co- accused except the appellant were acquitted under section 265-K, Cr.P.C. Therefore, on the principle of consistency he is also entitled to the same benefit. The prosecution has failed to prove its case against the appellant beyond any reasonable doubt. The statements of P.W.3 and 4 suffer from material improvement, besides they are interested witnesses and therefore that statements could not have been relied upon.
11. These are the reasons of our short order of even date which reads as under:--- ' "For the reasons to be recorded later Criminal Appeal No,638 of 2006 (Muhammad Arif Baloch v.
The State) is allowed. The conviction and sentence of appellant is set aside and he is acquitted of the charges. Since appellant has been acquitted from the charges as such the orders of confiscation/forfeiture of his properties, if any, shall stand vacated. Appellant present in Court is informed about the orders.
(2) In consequence of above, Criminal Appeal No,639 of 2006 (State v. Muhammad Arif Baloch) about enhancement of sentence is dismissed.