Ch. Mahmood Akhtar Khan, J.--We intend to decide Criminal Appeals Nos,328 of 2007 and 377 of 2006, one filed through Superintendent Central Jail Rawalpindi and one through the appellant's Counsel.
2. Necessary facts out of which the aforesaid appeals arise are that F.I.R. No, 114 dated 22.6.2005 under Section 9-C Control of Narcotic Substances Act, 1997 at Police Station Attock Khurd on the statement of Syed Mushtaq Hussain Excise Inspector against Khudai Gul appellant on the allegation of having recovered 25 Kilograms opium from his possession at M:ultan Mansoor Check Post. After due investigation, the accused was challenged to Court.
3. Learned trial Court framed the charge against the accused to which he pleaded not guilty and claimed trial.
4. In order to prove its case the prosecution examined six witnesses in all and tendered in evidence report of Chemical Examiner Ex.PE which is positive. After prosecution evidence the accused was examined under Section 342 Cr.P.C. He denied the prosecution case and pleaded false implication in the case. However, he did not make any statement on oath under Section 340(2) Cr.P.0 or produced any evidence to disprove the allegations levelled against him. The learned trial Judge after appraising the evidence brought on record and considering the arguments advanced at bar found the accused guilty of the charge and convicted and sentenced him as stated above. Hence, the instant appeals.
5. We have heard the arguments of learned counsel for the parties and have carefully scrutinized the entire record of the case with the valuable assistance of learned counsel for the parties.
6. Mr. Aftab Ahmad Khan, learned counsel appearing for the convict-appellant contended that entire trial of the case is null and void, ab-initio and no judgment could be announced on the basis of such trial; that the impugned judgment is based on mis-reading any non-reading of the evidence and it was just a fabricated case; no contraband was ever recovered from the possession of the appellant; no in independent witness was ever associated at the time of the alleged recovery of the contraband by the I.O. which is also a clear violation of Section 103 Cr.P.C.
7. Raja Javed Ashraf, Deputy Prosecutor General argued that the appellant is directly involved in the commission of offence and recovery has been affected from his possession there was no animosity of the Excise Officials with the accused to falsely involved him in narcotics case.
8. In order to prove charge against the accused/appellant the prosecution examined Muhammad Altaf, Excise Inspector as PW-1. He deposed that 18 packets of opium P1/1-18 were recovered, which were weighed 18 kilograms, out of which 10 grams was separated into a sealed parcel for chemical analysis. He further deposed that all the packets were collectively weighed by Excise Inspector without opening the same. He also stated that Excise Inspector recorded the statement of accused in his presence and in presence of Habib Ullah Constable. Syed Mushtaq Hussain Excise Inspector while appearing as PW-2 stated that on search of bag it was found with Bair' fruit alongwith 18 packets of opium P1/118 which were collectively weighed as 25 killograms out of recovered narcotics, 10 grams was separated for chemical analysis. He categorically stated that accused speaks Persian. He could not spell Urdu or Punjabi. Habib Ullah Excise Constable was examined as PW-4. He stated that accused could only speak and understand Persian. This position was also confirmed by Muhammad Riaz S.I. who was the Investigating Officer of the case. All the PWs are unanimous on the point that the bus in which the appellant was traveling was full of passengers.
Neither the driver nor cleaner of the bus or any one out of the passengers was ever associated during investigation in any capacity.
9. Admittedly the appellant was unable to understand Urdu, Punjabi or. English. At the time of framing of charge, during the statements of the PWs or at the time of recording of statement of the accused under Section 342 Cr.P.0 the accused could not have understood the proceedings of the Court. Section 361 Cr.P.C. says that when ever any evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open Court in a language understood by him. Section 361 Cr.P.0 is mandatory provision, object of which is that the accused should be in a position to know personally the allegation and incriminating circumstances appearing against him so that he may defend himself effectively. In addition to the aforementioned, it is an admitted position that no interpreter was appointed by the Court as such none was present available to the accused/appellant at the time of recording of his statement under Section 342 Cr.P.C. Thus the statement of the accused u/S. 342 Cr.P.0 does not conform to the mandatory provision of law.
10. Perusal of the record indicates that the prosecution has not been able to prove its case against the convict/appellant which merits outright acquittal. There is no direct or circumstantial evidence to connect him with the commission of the offence. There are material contradictions in the statements of the P.Ws which are not worth relying upon. Learned trial Court did not observe the mandatory provisions of Section 361 Cr.P.C., therefore, the entire trial against the appellant is void, ab-initio. From whichever angle we see it, the prosecution case is full of doubts, the benefit whereof entitles the convict/appellant to be li acquitted. Consequently, we allow this appeal, set aside the impugned conviction and sentence of the appellant and acquit him of the charges brought against him. He shall be set at liberty forthwith if not wanted in any other case.