1. ' ABDUL RASHEED KALWAR, J.--- By these common reasons we dispose of Criminal Appeal No,D-182 of 2004 and Criminal Jail Appeal No,D-205 of 2004 filed by the appellant. The appellant had preferred above mentioned appeals before this Court being aggrieved and dissatisfied with the conviction and sentence awarded by Special C.N.S. Hyderabad Sindh vide impugned judgment, dated 12-7-2004 in Special Case No,105 of 2001. The trial Court had convicted the appellant under section 9(c) of C.N.S. Act, 1997 and sentenced him to suffer imprisonment for life with fine of Rs,5,00,000 and in case of nonpayment of fine, he had to suffer two years' more imprisonment.
2. However, benefit of section 382-B, Cr.P.C. Was given to him.
3. ' The appellant was booked under section 9(c) of C.N.S. Act, 1997 vide Crime No,16 of 2001 having been lodged on 21-9-2001 at 1-00 a.m. At Police Station, Excise Crime Branch, Hyderabad.
4. ' The facts of the prosecution case as' per F.I.R. Are that on 20-9-2001 complainant Inspector Mumtaz Ali Narejo, Excise Inspector, Crime Branch, Hyderabad received spy information and on the direction of E.T.O. He along with Excise Inspector Nisar Ahmed Shehwani, E.D. Shabir Ahmed, E.C.
5. Nisar Ahmed, E.C. Ahtesham, Mazhar Ali Rajput, E.C. Azeemullah and driver E.C. Abdul Karim along with Muhammad Khan Abro, Excise Inspector Hala Circle left police station after keeping Roznamcha Entry No,6069 in a Government vehicle and reached at pointed placed i.e. Ansari Petrol Pump, at Giddu Chowk, Hyderabad. A pick-up belonging to Abbot medicine supplier company bearing Registration No,KG-0497/KIA was parked there. Appellant was standing near the driver side of the pick-up. He tried to escape away on seeing the Excise Police Party, but he was apprehended by the Excise Police. The appellant told his name as Shawas Khan son of Raz Khan by caste Sabzoi Pathan to the Excise Police. From his personal search, the Excise Police recovered Rs,350 and the key of the vehicle. The Excise Police Party searched the vehicle. Photostat registration papers were found from the dash board. The police found that cartons were lying in the back of pickup, which were taken out and opened. 49 polythene bags containing Charas were found from those cartons.
6. In all these were 915 slabs each weighing one kilogram and total weight of Charas was 915 kilograms. 22 big polythene bags were filled each with 39 packets and one bag was filled with 34 slabs. 23 slabs were sealed separately in polythene bag for sending them to Chemical Examiner whereas remaining polythene bags of Charas were separately sealed. E.J. Mazhar Ali and E.C.
7. Azeemullah were appointed as Mashirs and in their presence Mashirnama was prepared. The case property and the appellant were brought at above mentioned police station where F.I.R. Was lodged. The samples were sent to Chemical Examiner and the appellant was challaned to face the trial before the Court of Special Judge, C.N.S. Hyderabad.
8. ' The learned Special Judge, C.N.S. Hyderabad framed the charges against the appellant on 16-11- 2002 under section 9(c) of C.N.S. Act, 1997, to which appellant pleaded not guilty and claimed trial.
9. ' On 9-2-2004 P.W.1 Mashir Mazhar Ali was examined, who produced Mashirnama of recovery and arrest where on 14-4-2004 P.W.2 complainant Mumtaz Ali was examined by the Court, who produced copy of F.I.R., Chemical Examiner's report, Roznamcha Entry No,6069, Photostat copy of delivery acceptance letter, dated 19-9-2001 issued by Abbot Pakistan Limited in favour of appellant and another delivery of acceptance of the vehicle in the name of Salahuddin, whereafter prosecution closed the side.
10. ' On 21-4-2004 statement under section 342, Cr.P.C. Of the appellant was recorder., whereby he denied the prosecution case. Regarding P.Ws., he stated that they are excise officials and interested one. He did not claim the case property. He did not opt to examine himself on oath.
11. However, he cited Naeem Hyder as defence witness. He pleaded innocence and he further explained the position as follows:--- "I am falsely implicated in this case. On the day of incident at about 8-00 p.m. I was sitting at a hotel opposite to Mahrab. Two Pashto one Sindhi speaking persons were also sitting. Near the hotel one Toyota Corrolla car and a pick-up shown in this case were available. Excise Police came, arrested we all four and took to their office. After one hour the pick-up of the present case was brought. I am serving as Checker with All Pakistan Tankers Association and am to check oil tankers.
12. At about 3-00 a.m. One ArsIla Khan got released, Athor Khan, Sher Ali, Samejo and third person after making payment of Rs,10,00,000 (Rupees ten lacks). Nothing was recovered from my possession. Police had let off real culprits and implicated me falsely in this case. I pray for justice."
13. ' The appellant's Advocate closed defence side on 25- 5-2004 without examining the witness cited by the appellant in his statement under section 342, Cr.P.C.
14. ' After hearing the parties, impugned judgment was passed on 12-7-2004.
15. ' Learned Advocate for the appellant raised following contentions:---
(1) Appellant was not found sitting in the vehicle from which the contraband Charas was recovered.
(2) The key of the vehicle was neither sealed on the spot nor produced in the Court.
(3) The cartons containing Charas were destroyed and have not been produced in the Court.
(4) No independent person was associated as Mashir.
(5) Investigating Officer and complainant are the same.
(6) Investigating Officer is dishonest man against whom the case of Anti-Corruption is pending.
(7) Original documents have not been produced before the Court.
(8) No person from Abbot Company has been examined by the Investigating Officer.
(9) The back door of the vehicle was locked with China made lock which was not produced in the Court along with its key.
16. ' Learned State Counsel has opposed the arguments of learned appellant's counsel saying that the recovery of Charas is not disputed and key is recovered from the appellant, which establishes his control and possession of the vehicle. The delivery letter in the name of appellant is available on record. Section 103, Cr.P.C. Is not applicable in view of the authority reported in Fida Jan v. State 2001 SCM R 36 and Muhammad Khan v. State 2008 SCM R 1616. He has also stated that there is no harm if the Investigating Officer and the complainant of the same and he has placed reliance on case reported as Muhammad Hanif v. State 2003 SCM R 1237. According to him, the appellant was driver of the vehicle, therefore, he is responsible for the consignment of Charas, recovered from the vehicle.
17. The appellant can only be saddled with the liability of the offence when his possession and control over the vehicle is established by the prosecution. To our view the prosecution has failed to establish the appellant's possession and control over the vehicle. Because, the appellant was not sitting in the vehicle. By merely standing beside the vehicle does not establish his possession and control over the vehicle. Since the Charas was found from the vehicle pertaining to Abbot Company, therefore the Investigating Officer was duty bound, either to implicate the responsible officials of that company as co-accused in the offence or at least he should have cited them as their witness in order to confirm whether the appellant was driving their vehicle as their employee or not. This lapse on the part of the prosecution does not seem to be bona fide on the part of the Investigating Officer. The complainant/ Investigating Officer in his cross-examination has admitted that he had recorded the statement of an official of Abbot Company yet he had not produced him before the Court as witness. Another thing which could have established appellant's nexus with the vehicle was the key. On the point of key, both the prosecution witnesses are inconsistent about the recovery. P.W. Complainant Mumtaz Ali in his examination-in-chief has stated that the key of the said vehicle was recovered from front pocket of the appellant whereas Mashirnama contradicts that statement that the key of the vehicle was recovered from side pocket of the appellant. No doubt the Chemical Examiner's report is in positive and the substance sent to him was found to be a Charas. The Chemical Examiner's report in absence of confidence inspiring, ocular evidence is not helpful for bringing guilt to the appellant. The delivery acceptance letter, dated 19-10-2001 showing the name of appellant is also not reliable as this is a photostat copy and manipulation cannot be ruled out. The person who has provided copy, had not come to the Court to produce that document and officer himself for cross-examination. Therefore, on the basis of this letter, it cannot be said that the vehicle was in possession of the appellant. The recovery of Charas from the vehicle cannot ipso facto be proof of the guilt of the appellant unless possession of vehicle is proved against appellant through confidence inspiring evidence, which is lacking.
18. ' The Charas was allegedly filled in the cartons and those cartons have not been produced in the Court. Excise Police had filled bags with the recovered Charas as per their own choice. Why the Excise Police did not preserve and produce the cartons in Court is a question for which prosecution could not furnish plausible explanation. Therefore, as a natural consequence thereof shadow of doubt has also been created for which appellant is entitled to take benefit thereof.
19. ' From other point of view, if it is taken for granted, that the appellant was driver of the vehicle and he had the control and possession of the vehicle in that case the prosecution was still bound to prove that the driver was in knowledge of the contents of cartons. Nothing has been brought on record by the prosecution to establish that the Charas wrapped in the cartons was within the knowledge of the appellant. The employer of the appellant may not have shared the knowledge of contraband consignment packed in the cartons with the appellants.
20. ' No doubt as per dictum laid down in case-law reported as Muhammad Hanif v. State 2003 SCM R .1237 the Investigating Officer and complainant can be same person, but in present case whole proceedings of investigation are tainted with mala fides, therefore, the complainant's own interest for conducting investigation himself is not just fair and proper. Had there been a different Investigating Officer he could have either contended the responsible officer of Abbot Company with the offence or at least he would have arranged for securing his testimony before the Court.
21. The appellant has not claimed ownership of the vehicle so also the registration book does not bear his name. The possession of the appellant over the vehicle containing Charas has not been proved.
22. The service of the appellant with the Abbot Company has not been established on record, therefore, charge against appellant has not been proved beyond reasonable doubt.
23. Nevertheless, the contention of learned counsel as to non-association of independent Mashirs in the recovery proceedings is appealing and attractive, but under section 25 of the C.N.S. Act, 1997 the applicability of section 103, Cr.P.C. Has been excluded, therefore, this contention raised by learned counsel is without force, therefore, repelled.
24. The cumulative effect of all above factors resulted into recording of acquittal of the appellant, which we had done by setting aside the impugned judgment and the conviction vide short order, dated 4-2-2008 and these are the reasons thereof.