JUDGMENT FAZAL-I-HAQ ABBASI, J. Sabir Shah alias Saloo appellant has filed the instant appeal against the judgment dated 23-11-2010 passed by learned Addl. Sessions Judge Shabqadar, whereby the appellant was convicted under section 9(c), C.N.S.A. And was sentenced to undergo 5 years' R.I. With a fine of Rs.50,000 or in default to undergo 6 months' R.I. With benefit of 382-B, Cr.P.C.
2. Abdur Rashid Khan S.H.O. (P.W.3) sent Murasila Exh.P.A./1 stating therein that on prior information about smuggling of narcotic from Tribal Territory, he along with other police officials laid picket at Yakka Ghund Check Post on 26-2-2010 when at 10-00 a.m. a Car XLI bearing Registration No.ALT 256/Sindh coming from Mohamand Agency was stopped for checking, wherein a person was sitting in the driving seat, who disclosed his name as Sabir Shah alias Saloo son of Mir Ahmad Shah resident of Mian Kalay Charbagh Swabi. Motor Car was got searched through Khurshid Khan A.S.-I.
And Opium was recovered from secret cavity made in the Fuel Tank of the said Motor Car, on weighing the Opium same was found to be 17 K.Gs. Out of which 5 grams were separate for chemical analysis. Remaining quantity (Exh.P.1) and the sample were sealed into separate parcels through recovery memo (Exh.P.W.3/1). Accused was arrested and the Murasila was sent through Constable Rasool Khan No.552 to P.S. For registration of the case, as such F.I.R. No.$4 da.Ted 26-2-2010 under section 9(c)
C.N.S.A. Was registered at P.S. Saro Kalay District Charsadda.
3. After registration of the case investigation was entrusted to Abdullah Jan S.-I. (P.W.6), who proceeded to the spot, prepared site plan Exh.P.B. At the pointation of complainant and the witnesses and recorded the statements of P.Ws. Under section 161, Cr.P.C. Ali Khan S.-I. (P.W.5) vide application Exh.P.W.5/1 - produced the accused Before the court for physical remand of the accused, as such one day custody was granted. He also took into possession photo copy of Registration Book of the Motor Car in question, agreement and Authority Letter vide recovery memo Exh.P.W.1/1. After completion of the investigation Abdur Rashid Khan S.H.O. (P.W.3) submitted complete Challan against the accused.
4.After commencement of the trial, prosecution in order to 4 prove its case examined 6 P.Ws.
Najibullah (P.W.1) stated that he is witness to the recovery and possession of registration copy in respect of Motor Car bearing No.ALT 256/Sindh along with Agreement and Authority Letter through recovery memo. Exh.P.W.1/1. P.W.1. Admitted in cross-examination that the accused facing trial was not the owner of the Motor Car and that the documents taken into possession through Memo.
P.W.1/1 are not before the Court. Khan Muhammad MHC P.W.2), on receipt of Mursila Exh.P,A./1 registered the F.I.R. Exh.P.A.
5. Abdur Rashid S.H.O. (P.W.3) is the complainant, who supported the story given in Mursila Exh.P.A./1.
He further stated that through application-Exh.P.W.3/2 he sent the sample of 5 grams to FSL and the report thereof is Exh.P.Z. In cross-examination he admitted that the Motor Car wherefrom the contraband was recovered was not before the Court and that the contraband was pressed into the Tank with different shapes. He further stated in cross-examination that he cannot specify the number of each shape of contraband. This P.W. Also admitted that he had not mentioned the name of owner of the vehicle in challan form and that accused was not the owner of Motor Car, according to Registration Book one Abdur Razzaq was the owner of the vehicle, who was not cited as an accused in the challan. However, he denied the suggestion that nothing was recovered from the accused nor he was arrested from the Motor Car, that accused was innocent and was enroped falsely due to ulterior motive. Arif FC No.345 (P.W.4) stated that he is marginal witness to recovery memo Ex.P.W.3/1 through which 17 K.Gs. Of Opium was recovered and taken into possession by the complainant from the secret cavity of the fuel Tank of the Motor Car, out of which a sample of 5 grams was separated for FSL and sealed into parcel No.1 while the remaining 16995 grams were sealed into parcel No.2. The complainant also took into possession Motor Car bearing No.ALT 156/Sindh. In cross-examination, the witness stated that the alleged contraband was in different shapes and he cannot specify the number of each shape. He further stated that 5 grams were separated from the whole lot and not from every `Teki'. During cross-examination on the request of defence counsel, the trial Court deseased the case property and made observation that "the parcel No.2 was oprtid and the slabs of the opium were found 40 pieces in round shapes which were contained in a paper carton, each piece was found intact, however, two big lots cannot be opined/observed in respect of separation of sample". After examining 6 P.Ws. The prosecution closed its evidence.
6. Accused was examined under section 342 Cr.P.C. And he denied the allegations by stating that he has committed no offence and is innocent and involved.
7. Learned trial Court after hearing the arguments of the parties convicted and sentenced the accused as stated above.
8. Arguments heard and record perused.
9. According to Abdur Rashid S.H.O. (P.W.3) the alleged contraband was recovered from the secret cavities made in the Fuel Tank of Motor Car No.ALT 256/Sindh and the accused was found driving said Motor Car when the same was stopped and searched. Abdur Rashid S.H.O. (P.W.3) has not taken into possession the driving licence of the accused and if he was not having the same, he was not challaned under provisions of Motor Vehicle Ordinance, so as to prove A that the same person was driving the Car in question at the relevant time when the recovery of contraband was effected.
According to this P.W. Accused was not the owner of the Motor Car and one Abdur Razzaq was the owner Neither Abdur Razzaq was examined as P.W. So as to prove that the Motor Car in question was handed over to accused by him and that at the relevant time was being driven by the accused, nor said Abdur Razzaq was arrayed as an accused in the case. It was duty of the prosecution to prove the connection of accused with the Motor Car from which the contraband was recovered. The prosecution witnesses are contradicted by each other. It is stated by Abdur Rashid Khan P.W.3 that he separated only 5 grams from the whole stuff as it was in form of a lot, while Arif No.345 (P.W.4) stated that the recovered contraband was in different shapes. However he cannot specify the number of each shape. When the case property was deseased by the trial Court, it was found in 40 pieces, in round shape, which were contained in a paper carton, each piece was found, intact. There is no explanation that what was the hurdle in the way of Abdur Rashid Khan (P.W.3) for not obtaining samples from each piece of the recovered contraband and sending the same to FSL to for opinion and report. Moreover,. It is not clear on record what was the weight of each piece and that how sing lot went into 40 pieces.
10. When it is not proved beyond reasonable doubt that in fact the accused/appellant was driving the Motor Car in question at the relevant time and when Abdur Razzaq the alleged owner of the Motor Car was neither made an accused nor examined as P.W. And when Khurshid Khan A.S.-I. Who conducted the search of the Motor Car, recovered the alleged contraband was abandoned by the prosecution and when the complainant and recovery witness are contradicted to each other on material points, the case property was found different and when weight of each piece of the contraband is not ascertainable, and when the Car wherefrom recovery of alleged Opium was effected was neither produced nor exhibited in the trial Court. Then in such a situation conviction cannot be maintained on such evidence. Therefore, we hold that the prosecution has miserably failed to establish its case against accused beyond reasonable doubt.
In the above circumstances impugned judgment dated 23-11-2010 passed by Addl. Sessions Judge Shabqadar is not sustainable, which is set aside and the accused is acquitted of the charge levelled against him. He be released forthwith if not required in any other case. These are the reasons for our short order of even date.
Before parting with this judgment we would like to observe that the investigation now a-days is conducted very casually, carelessly and in haphazard manner, leaving lacunas in cases either due to incompetence, inefficiency or for some other considerations, benefit of which always goes to the accused persons. It is high time that legislation should be made, providing punishment for.
Defective investigation, like under section 27 of the Anti-Terrorism Act, 1997. Copy of this judgment be sent to Secretary, Law and Justice Division Government of Pakistan, Islamabad for placing the same before the worthy Law Ministry for perusal and necessary action.