' IRFAN SAADAT KHAN, J.---By this common judgment we propose to dispose of the Criminal Appeal No, 441 of 2010 filed by the appellant Niamatullah Khan and Criminal Acquittal Appeal No,451 of 2010 filed by the State against the common judgment dated 7-9-2010 passed by the Special Court-I, CNS, Karachi whereby the appellant Nimatullah Khan was found to be guilty of the offence punishable under section 9(c) of CNS Act, 1997 and was convicted to suffer R.I. For life and fine of Rs,2,00,000 and in case of default in payment of fine to suffer further R.I. Of one year. However, benefit of section 382-B, Cr.P.C. Was extended to the accused. The connected Criminal Acquittal Appeal has been filed by the State against the above judgment whereby co-accused Muhammad Tahir Khan, Nadir Khan, Shafqat Ali and Hassan Ahmed Khan were acquitted.
2. Briefly stated the facts of the case are that the S.H.O. P.S. ANF Clifton Karachi received information from the superior Officials that international narcotics peddler Niamatullah was bringing huge quantity of narcotics in Hino Truck bearing Registration No,JU-3699, with intention to deliver the same at Millennium Mall, Gulistan-e-Jauhar near Askari Petrol Pump. On this information a raiding party was prepared comprising of the S.H.O. P.S. ANF, A.S.-I. Ali Gul FC Shamraiz, PC Aamir Mukhtar, PC Abdul Hafeez, PC Pervez Shah, PC Rahib Khan and other ANF Staff along with Driver Shahbaz.
Entry in this regard was also made in police station vide Entry No,9. At about 1600 hours the said party proceeded to the designated place in two vehicles and also took the spy from the way and arrived at the pointed place at about 1700 houRs, The said vehicle was stopped at about 1730 hours near Askari Petrol Pump opposite to Millennium Mall in which four persons were present and another vehicle Honda Civic bearing Registration No, AHS 677, which was along with the truck, was also stopped. On the pointation of the spy the driver of the said car was identified as Niamatullah Khan. The passersby were asked to act as witness who refused to do so therefore PC Aamir Mukhtar and PC Abdul Hafeez acted as mashirs of the case. When the accused Niamatullah Khan was, interrogated he disclosed about the presence of Charas in a shopper bag lying inside the car near the hand break. He also pointed about a carton lying on the back seat of the car which as per the accused also contained the charas. The accused further disclosed presence of charas in truck also. On personal search of Niamatullah Khan Cash Rs,2,500, 2 mobile phones a coloured copy of CNIC and different keys were recovered. The carton was containing the words "Inject disposable Syringes", when the same was opened seven packets of charas wrapped with solution tape were recovered therefrom.
3. Four persons were apprehended from the truck who when interrogated disclosed their names as Nadir Khan, Tahir Khan, Shafaqat Ali and Hassan Ali Khan. While the matter was being interrogated Niamatullah Khan took out a key from his pocket and unlocked the container/cabinet on the rare side of the truck and upon checking of the same 22 cardboard cartons with the mark 'Inject Disposable Syringes' were found. Six cartons with mark "PLI Fragile 54 MM Cigarette Filter" were also found. All these cartons were opened and upon checking 8 packets with Khaki colour solution tape were found. The packets were opened and charas in shape of slabs in all 40 packets were found from the five cartons and in all from the car and the truck a total 240 Kgs. Charas was recovered.
Samples were taken from each packet for sending the same for chemical examination and each packet was given a separate number. Upon search of the truck registration documents were recovered as per which the vehicle belongs to one Muhammad Tahir. The recovered property and the vehicles were seized and accused persons were taken into custody. Memo of arrest and recovery were prepared on the spot. On completion of the investigation, F.I.R. Was lodged against the accused persons, samples were sent for chemical examination and challan was submitted before the trial court, which after hearing the parties at length and examining the evidences passed the order impugned herein.
4. Mr. Sibtain Mehmood, learned counsel for the appellant Niamatullah Khan, has submitted that the case of the prosecution is full of contradictions and the order passed by the trial Court suffers from some serious defects and submitted that the accused may be acquitted keeping in view the facts and circumstances of the case. He submitted that in the F.I.R. Car number has been mentioned as JU-3699 whereas in the challan car number has been mentioned as AHS 677, which is a major contradiction. He submitted that there is variance in the deposition of the P. Ws., with regard to place of incident as at one place it is stated that accused persons were arrested at the Millennium Mall whereas at the other place it is mentioned that they were arrested opposite the Millennnium Mall, which according to him is a major contradiction. He further submitted that there is improvements in the deposition given by the P. Ws. As at one place name of father of accused Niamatullah was mentioned as Abdullah whereas at the other place it has been mentioned as Abadullah. He vehemently submitted that in the deposition of P.W.1 he has stated that while searching the accused all the items were taken away from him which included the cash, mobile phones, keys, coloured copy of CNIC etc. Whereas in the same deposition it was stated that the container/cabinet was opened by the accused by taking out a key from his pocket. Learned counsel submitted that when each and every item was taken away by the police from the accused how it was possible that he could take out yet another key from his pocket to open the container.
Learned counsel submitted that this appears to be a major contradiction, so far as the deposition of P. W.1 is concerned, who is a police official.
5. Learned counsel went on to argue that it was stated that case property was produced in court whereas at another place it has been mentioned that container was desealed in presence of SPP and DC. Learned counsel submitted that this again is a major contradiction, as when the case property was produced before the court in sealed condition how come the same was desealed in presence of SPP and DC. He further submitted that there is no mention about one Pervez Shah being part of police raiding party in the deposition of P.W.1 whereas in the Roznamcha entry his name was mentioned to be a part of the raiding party. He submitted that admittedly the accused was in car which belongs to rent a car company, however it is strange that the said rent a car company was never examined by the Prosecution. He further submitted that in the form of the rent a car company the alleged signatures of the accused are totally different from that appearing on the CNIC. Learned counsel in this regard also produced before us the original CNIC of the accused Niamatullah and vehemently submitted that there is a marked difference in the signatures available on the rent a car form and on the CNIC. As per the learned counsel the signatures on rent a car form are forged signatures, which have been foisted upon by the ANF party as the accused was having some differences with one of the A.S.-I. Posted in ANF Department namely Asif Ali upon whose instigation the present case has been foisted upon him. He submitted that no investigation was carried out with regard to place where it was alleged that the said contraband items were placed in the truck. Learned counsel further submitted that no investigation of the truck owner was made by the prosecution, which causes heavy doubt in this regard. He further submitted that rent agreement produced by the prosecution also does not bear the name, father's name and signatures of the accused person which as per learned counsel is a forged and fabricated document. In support of his above contentions he has relied upon the following decisions:--
(1) SARWAR. JAN V. THE STATE (2004 PCr.LJ 1224)
(2Y TAJ WALI AND 6 OTHERS V. THE STATE (PLD 2005 Karachi 128)
(3) THE STATE/ANTI-NARCOTICS FORCE THROUGH DEPUTY DIRECTOR V. MUHAMMAD SIDDIQ (2010 YLR 2617)
(4) ALI HASSAN V. THE STATE (PLD 2001 Karachi 369)
(5) SYED KARIM V. ANTI-NARCOTICS FORCE (PLD 2003 Karachi 606)
(6) NAZEER AHMED V. THE STATE (PLD 2009 Karachi 191)
(7) ADIL HUSSAIN V. THE STATE (2003 YLR 1901)
(8) ABDUL MAJEED AND ANOTHER V. THE STATE (2004 MLD 568)
(9) TARIQ PERVEZ V. THE STATE (1995 SCMR 1345)
(10) JAMIL SHAH V. THE STATE (1997 SCMR 1494)
(11) ASHIQUE HUSSAIN CHANDIO V. THE STATE (PLD 1992 Karachi 5)
(12) MUHAMMAD ASLAM JAVED V. ZAHUR AHMED AND OTHERS (2008 YLR 638)
(13) ABDUL LATIF V. INSPECTOR-GENERAL POLICE AND OTHERS (1999 PCr.LJ 1357)
(14) MUHAMMAD IQBAL V. THE STATE (1984 SCMR 930)
(15) MUHAMMAD SIDDIQUE V. PROVINCE OF SINDH THROUGH HOME SECRETARY KARACHI AND 2 OTHERS PLD 1992 Karachi 358)
(16) ASMA KHATOON V. SYED SHABBIR HUSSAIN SHAH A.C.M. AND FCM COURT-VI KARACHI WEST and 2 OTHERS (PLD 1996 Karachi 517).{{TABLE}}
6. On the other hand, Mr. S. Ashfaque Hussain Rizvi, learned Special Prosecutor ANF, submitted that the order passed by the trial court is an exhaustive and a speaking order. He submitted that the accused persons were caught red handed from the spot with huge quantity of narcotics in their possession hence the present accused persons do not deserve any leniency in this regard. He further submitted that all the items were recovered on the specific pointation of the, accused hence it cannot be said that a false case has been foisted upon them, or they had no knowledge about the same. He submitted that' it was the accused Niamatullah who pointed out the specific places from where the said contraband items were recovered. He further submitted that some minor contradictions would not vitiate prosecution proceedings as it is an admitted position that accused persons were carrying huge quantity of narcotic for delivering the same to some party.
Non-production of Randari was not a fatal defect as according to him it has nowhere been said that the accused was not arrested from the spot or some other place. He further submitted that there is no contradiction with regard to deposition of P.W.1 about recovery of the key as upon personal search a number of items were recovered but the key remained available with the accused in his pocket which could not be located and the appellant himself produced the same for opening the container/cabinet of truck from where the contraband items were hidden. He submitted that this is a minor contradiction and no adverse inference in this regard could be drawn. He submitted that depositions of P. Ws. Had remained unshaken and were confidence- inspiring as no major contradiction has been pointed out. He submitted that the present case is to be seen as a whole and not in piecemeal and in a broad spectrum a prima facie case of conviction is made out hence no leniency may be granted to the accused in this regard, as drug trafficking is considered to be a crime against the society. He submitted that all the prerequisite conditions and legal formalities have been fulfilled including the formalities of sections- 20 and 21 of the CNS Act hence the conviction awarded to the accused by the Trial Court may be affirmed by dismissing this .Appeal. In support of his above submissions he relied upon the following decisions:-
(1) ZAFAR V. THE STATE (2008 SCMR 1254)
(2) ABDUL RASHEED V. THE STATE (2009SCMR 306)
(3) MUNAWAR HUSSAIN ALIAS BOBI AND 2 OTHERS V. THE STATE (1993 SCMR 785)
(4) SARFARAZ GUL V. THE STATE (PLD 2004 SC 334)
7. So far as the appeal filed by the State is concerned, he submitted that learned trial Court was not justified in acquitting the four accused persons as they were an ally of the accused Niamatullah and were arrested red-handed from the spot carrying huge quantity of contraband items. He further submitted that though the learned Trial Court has stated that Prosecution Was not able to prove its case against these four accused persons whereas in his opinion the Prosecution has proved to the hilt the case against the present accused and in view of the facts and circumstances of the case these persons may be convicted and the order passed by the Trial Court may be set aside.
8. Mr. Ilmuddin Khattak, learned counsel appeared for the other four acquitted accused persons named above in Criminal Acquittal Appeal No,451 of 2010 submitted that all these persons are poor labourers and had nothing to do with the recovery of the contraband items. He. Submitted that these persons are either driver, cleaner or labourers who had no role to play in carrying narcotics and their mere presence with the accused cannot be considered to be a charge against them. He submitted that admittedly their names were not mentioned by the spy as only the name of Naimatullah was mentioned; meaning thereby that there was no information available with the ANF with regard to involvement of these four persons in the crime. In the end he supported the order of Trial Court and submitted that the Court after detailed deliberation had rightly come to the conclusion that these persons had neither any knowledge of narcotics nor could be considered to be an ally of the accused Naimatullah and were rightly acquitted in this regard. In support of his above submissions he relied upon the cases of MUHAMMAD NOOR and OTHERS V. THE STATE (2010 SCMR 927), MEHARBAN and 2 OTHERS V. THE STATE (2011 PCr.LJ 8) and GHULAM HUSSAIN AND 9 OTHERS V. THE STATE (2011 PCr.LJ 72).
9. We have heard all the learned counsel at considerable length and have considered the record and the decisions relied upon by them.
10. The deposition of P.W.1, Syed Sher Ali Shah Shirazi (S.I. ANF), reveals that he was informed by his high-ups only half an hour before he made the raid to apprehend the accused person. He candidly admitted that no information about the other four accused persons was given either by his high- ups or by the spy. He further submitted that the raiding party comprised of 13 to 15 people and they reached at the designated place at about 1700 houRs, He also admitted that he was the complainant and the I.O. Of the case and being S.H.O. Of the said Police Station he does not require any written order from his high-ups regarding the investigation as it was his job. He further submitted that he stayed at the place of occurrence at about two hours which is a thickly- populated area. He also admitted, that he asked the passerby to act as mushir and only upon their refusal he made the other P.Ws. As mushirs of the case. He further submitted that the said vehicle came at the spot at 1730 houRs, He also admitted that there was no secret cavity in the truck, however, voluntarily stated that there was a container fixed in the truck. He also admitted that no contraband item was recovered upon the personal search of any of the accused persons. He also admitted that charas was found in the cartons available in the truck and in the car. He also admitted that in his examination-inchief he had categorically mentioned that the other four accused persons were companions of the accused Naimatullah. He also admitted that no confessional statement of the accused was recorded by him. He also admitted that he had not collected any independent evidence to prove that the other four accused persons were ally of the accused Naimatullah, hence, their involvement in commissioning the offence could not be proved.
He submitted that the mushimama was prepared at the spot. He also submitted that the accused Tahir Khan is an employee of "Agility Co.".
11. P.W.1 also admitted that remand of the accused was obtained on 13-3-2009, however, submitted that he produced the accused on 12-3-2009 before the Magistrate as on that date there was a strike, hence, he produced the accused on the next day i.e, 13-3-2009. He, however, admitted that no proper entry of Randari has been kept by him in this regard. He also admitted that the other four accused persons had no knowledge about the availability of the charas in the cartons placed in the truck. He further submitted that he had no information whether the accused Naimatullah was ever involved in any charge prior to this charge as according to him the name of Naimatullah was given to him by the , spy stating that he was an international drug peddler. He further submitted that they had received information regarding availability of huge quantity of charas in truck only and not that of car. He also admitted that at the time of incident all the shops of Millennium Mall were open, however, no shopkeeper was asked to act as witness. He further submitted that the spy was taken from Nursery. He also stated that except two mushirs I e Amir Mukhtar and Amir Hafeez he had not recorded the statement of other members of the raiding party. He further admitted that upon the search of Naimatullah every item in his possession was taken into custody. He also admitted that colour of the Katta was not mentioned in the mushirnama. He also admitted that samples were not drawn from each packet, however, admitted that the samples were deposited on 13-3-2009 in the Maalkhana of P.S. However he could not produce any receipt in this regard. He also admitted that name of the person who deposited the samples in the laboratory was not available. He also admitted that though a letter was written to Mobile Company for obtaining the record but no record in this regard was either produced before the trial Court or was available with him. He also admitted that the container placed in the truck contained the monogram of a Company namely "J. Logistic International but no investigation in this regard was ever made by him about the said company. He also admitted that J. Logistic International Company was not involved in the smuggling of the narcotics. It is also seen from the record that the SPP ANF had given up the P.W. Amir Mukhtar.
12. The deposition of P.W.2, Abdul Hafeez (P.C. ANT), reveals the basic facts to be same as that of P.W.1, however, in his cross he submitted that P.W.1 did not ask inhabitants of locality to act as witness, however, voluntarily stated that passersby were requested who refused to act as witnesses. He submitted that no description about the weight of the charas has been mentioned in the mushimama. He also admitted that there was no mention either in the mushirnama or in his 161 Cr.P.C. Statement about weighing the contraband items on the electronic scale, whereas in the deposition of P.W.1 he has categorically stated that contraband items were weighed at the spot on the electronic weighing scale, which was available with them. He also admitted that neither any contraband item was recovered from the physical possession of the accused persons nor there was any secret cavity available in the container. He also admitted that no member of the raiding party ever knew Naimatullah prior to his arrest, however, voluntarily submitted that it was only the spy who knew him. He also admitted that no identification parade of the accused Naimatullah was ever made before the Magistrate through spy. He also admitted that the names of A.S.-I. Ali Gul, PC Pervez Shah, PC Muhammad Akram and PC Rahib Khan were not mentioned in the roznamcha entry dated 11-3-2009. He also submitted that soon after pointation they encircled the accused, in the meanwhile the spy disappeared from the place of occurrence.
13. P.W.2 also admitted that no document either from the truck or the car was recovered whereon the name of the accused Naimatullah was mentioned. He also admitted that they received the spy information about the truck only. He also Admitted that no airway bill, bill of lading or any document of consignment was recovered either from the truck or from the car. He also admitted that upon search of the accused Naimatullah they recovered all the items available with him in this regard, however, admitted that in his 161, Cr.P.C. Statement he had mentioned that the accused took out a key from the pocket of his shirt to unlock the container available in the truck. He also admitted that no contraband item was recovered from the cartons marked "Inject Disposable Syringe" from the truck. However, submitted that five cartons marked "PLI Furgyle 54 mm Cigarette" were recovered from the truck in which contraband items were present. He also stated that at the time of the raid there was no rush of the traffic. He also admitted that the accused Naimatullah was not arrested at the investigation of A.S.-I. Asif Ali.
14. The deposition of P.W.3, Muhammad Abid, owner of car showroom (Rent 'A' Car) reveals that on 4-3-2009 his friend. Asad Siddique called him on telephone and informed him that his friend Naimatullah Afridi requires a car on rent upon which he asked him to send your friend so that the car may be delivered to him. He further submitted that on the same date at about 1615 hours when he reached the showroom Naimatullah was present there who gave him a photocopy of his CNIC and thereafter a rent agreement for renting the car bearing Registration No,AHS-677 was executed.
The rent was fixed at Rs,1250 per day and thereafter the car was handed over for 15 days to Mr. Naimatullah. He further submitted that on 18-3-2009 four persons from the A.N.F. Department reached his showroom and enquired about the car which had been handed over to Naimatullah.
On their demand he handed over the relevant documents to those persons. The ANF officials asked him to contact Asad Siddique on telephone and to call him to the showroom. Asad Siddique was contacted by him and was asked to come to the showroom whose statement along with his statement was thereafter recorded by the ANF officials. He, however, admitted that no period of rent was mentioned in the agreement, however, voluntarily submitted that period is always mentioned when the car is returned. He submitted that he had no previous acquaintance with Mr. Naimatullah as he was introduced to him by his friend Asad. He also admitted that name of the guarantor was not mentioned in the agreement. He also admitted that the signature of Naimatullah was also not available on the agreement. He also submitted that he had not made any application for the return of the vehicle. He also stated that the car is registered in the name of his son.
15. The deposition of P.W.4, Muhammad Asad reveals that he is running a shoe store under the name and style of Regal Shoe Store at Karachi. He submitted that he met Naimatullah in a get together about one year before the date of the incidence and thereafter met with him 3/4 times.
He stated that as Naimatullah required a car he helped him in obtaining the same as Abid was his friend. On 19-3-2009 he received a call from Abid who called him to come to his showroom immediately and when he reached there 3/4 persons in uniform were present who enquired from him about Naimatullah. He further submitted that he had no knowledge about the involvement of Naimatullah in any drug trafficking.
16. In the statements recorded under section 342, Cr.P.C. All the accused persons have categorically denied about their involvement in the alleged crime. The statement of Muhammad Tahir Khan reveals that he was working in Agility Co. As an outdoor Assistant. He stated that the prosecution story is false. He also stated that he wants to produce one Imran and Col. (Retd.) Asad Kiyani as his defence witnesses. He stated that on the day of the incidence his Manager informed him about transporting of some medicines, at about 6-00 pm he left the office and proceeded towards his home, however, when he reached at Drig Road signal his truck was stopped, which was being driven by his brother Nadir. He enquired as to what was going on when he found that two vehicles one Honda Civic Car and one Toyota Hi-ace were chasing his truck. He stated that thereafter the police picked him near PAF Museums and that he is innocent and has nothing to do regarding the alleged recovery of the contraband items.
17. The statement, under section 342, Cr.P.C., of accused Nadir Khan Afridi reveals that he was instructed that he had to lift some medicines from Defence. The person who contacted him disclosed his name as Naimatullah and he was asked to bring his truck near McDonald, Sea View.
When he reached there he found two persons who took him to a house at Khayaban-e-Mujahid. He took his truck inside the bungalow where some cartons were lying. He stated that Naimatullah informed him that medicines were lying in the cartons and with the help of Hassan Ahmed and.
Shafqat, who were with him, loaded the said items in the truck. The container was thereafter locked and the key of the container was handed over by him to Naimatullah. Naimatullah informed him that these medicines have to be delivered near Millennium Mall and asked him to reach there and he will meet him at the designated place. He submitted that when he reached the designated place but no one was there. He then proceeded to offer his Asar prayer. Thereafter he received a call from his brother and. Naimatullah asking him where he is at present. He submitted that after offering his prayers he came out of the mosque when two persons approached him and asked him to remain silent and brought him to his truck. Some other persons were also standing there and thereafter these persons searched Hassan Ahmed and Shafqat. The car of Naimatullah was also parked near the truck, then the said persons asked him about what was lying in the truck to which he replied that medicines are there. Thereafter he submitted that he was asked to drive the truck and when he reached near PAF Museum his truck was stopped by ANF people who thereafter brought him to P.S. ANF Clifton. He stated that he is innocent and has got nothing to do with the recovery of contraband items.
18. The Statement, under section 342, Cr.P.C., of accused Hassan Ahmed Khan reveals that he is a loader by profession and on the day of incidence Nadir told him that some items were to be lifted from Defence. He went along with the truck to the designated place from where they loaded disposable syringes. He stated that he had no knowledge about what was present in the said cartons and is an innocent person. The statement of accused Shafqat Ali, under section 342 Cr.P.C., reveals the same story as that of accused Hassan Ahmed Khan. The depositions of accused Muhammad Tahir Khan and Nadir Khan A fridi, recorded on Oath, disclosed somewhat same story as already recorded by them in their statements under section 342, Cr.P.C.
19. The deposition of DW-1, Asad Kiyani, G.M. Agility Logistic Company, reveals that the accused Muhammad Tahir was working as driver cum outdoor assistant in the Company. He also stated that on 11-3-2009 Tahir attended his duty and produced a certificate in this regard. As per his deposition Tahir was not involved in any objectionable activity.
20. The statement, under section 342, Cr.P.C.; of the accused Naimatullah reveals that he has stated that the case registered against him by the A F was false and the story prepared by the ANF Department was concocted. He further stated that no recovery was effected from his possession.
He also admitted that he did not know the other four accused persons. He also stated that neither he obtained the car from Rent 'A' Car nor any agreement was signed by him. He also stated that the signature appearing on the said agreement was forged. He also stated that 4sad and Abid examined by the prosecution were their plotted witnesses and had given their deposition on the instructions of the ANF Department. He also stated that t e items recovered from the car were neither separated nor identified. He stated that the mushirs namely P.C. Hafeez is a subordinate of S.H.O. Shirazi ho had given his deposition on the instru tions of Mr. Shirazi.
21. The decisions relied upon by the learned counsel are discussed herein below:-- ' TARIQ PERVEZ V. THE STATE (1995 SCMR 1345)
In this case Hon'ble Supreme Court has held that "for giving benefit of doubt to an accused it is not necessary that there should be ' Many circumstances creating doubt. If a simple circumstance creating reasonable doubt in a prudent mind about the guilt of the accused then he will be entitled to such benefit not as a matter of grace or concession but as a matter of right".
' MUHAMMAD SIDDIQUE V. PROVINCE OF SINDH THROUGH HOME SECRETARY KARACHI AND 2 OTHERS (PLD 1992 Karachi 358)
In this case it was held that accused is to be produced within 24 hours of his arrest before the Magistrate and if he was not produced within stipulated time, same will amount to patent disregard of the, law and constitutional guarantees.
' SARWAR JAN V. THE STATE (2004 PCr.LJ 1224)
In this case it was held that onus to prove guilt lies upon the prosecution which is to be Discharged by strong circumstances.
' ABDUL LATIF V. INSPECTOR GENERAL POLICE AND OTHERS (1999 PCr.LJ 1357)
In this case it was observed that if investigation was not conducted in a proper manner, finding raised upon such enquiry would be bound to fall on the ground.
' MUHAMMAD ASLAM JAVED V. ZAHUR AHMED AND OTHERS (2008 YLR 638)
In this case signatures of appellant appearing on certain, documents were found to be forged hence he was acquitted.
' ADIL HUSSAIN V. THE STATE (2003 YLR 1901), In this case appellant was acquitted after finding contradictions in the deposition of the P. Ws.
' THE STATE/ANTI-NARCOTICS FORCE THROUGH DEPUTY. DIRECTOR V. MUHAMMAD SIDDIQ (2010 YLR 2617) AND ALI HASSAN V. THE STATE (PLD 2001 Karachi 369)
Acquittal appeal was dismissed keeping in view the fact that no entry for leaving the police station was maintained. There were also contradictions in the memo of recovery, F.I.R. And statement recorded under section 161, Cr. P. C.
' ASHIQUE HUSSAIN CHANDIO V. THE STATE (PLD 1992 Kar. 5)
In this case the appellant was acquitted on the ground of benefit of doubt.
' TAJ WALL AND 6 OTHERS V. THE STATE (PLD 2005 Karachi 128)
The appellant was acquitted on the ground that there had been improvement and contradiction in the statements of MashiRs, The charas received by the Chemical Examiner was not tallying the number of slabs sent for examination. There was also a violation of provision of section 20 of the CNS Act.
NAZEER AHMED V. THE STATE (PLD 2009 Karachi 191)
The appellant was acquitted on the ground that no statement under section 161, Cr.P.C. Of the witnesses was recorded. Moreover no description about the weight of contraband item recovered was mentioned.
' ABDUL MAJEED AND ANOTHER V. THE STATE (2004 MLD 568)
The appellant was acquitted on the ground that sealed case property was not produced in court for verification and in the circumstances the report of Chemical Examiner cannot be safely relied upon.
' SYED KARIM V. ANTI-NARCOTICS FORCE (PLD 2003 Kar. 606)
The appellant was acquitted on the ground that no case with regard to possession of heroin was made out by the prosecution. Moreover, report of Chemical Examiner was having cuttings, overwriting and interpolation hence benefit of doubt was given to the accused.
' MUHAMMAD IQBAL V. THE STATE (1984 SCMR 930)
It was held that mere absence of enmity against witnesses is not sufficient to bring a charge of murder if evidence of such witness is found to be unreliable.
' JAMIL SHAH V. THE STATE (1997 SCMR 1494)
It was held that no doubt in absence of any mala fide or motive for false charge reliance can be placed on the statements of the official witnesses but when recovery of the substance by itself is the main offence the statement of such officials (police witnesses) needs to be properly appraised and minutely scrutinized and the benefit of doubt, if any, arising from the reading of their statements shall be extended to the accused.
' MUHAMMAD NOOR AND OTHERS V. THE STATE (2010 SCMR 927)
In this case the Hon'ble Supreme Court has observed that possess means some sort of knowledge about thing possessed. In other words, prosecution must prove that the accused was knowingly in control of something in the circumstances which showed that he was assenting to be in control of it. It is not necessary to show in fact that he had actual knowledge of that which he had. Prosecution had simply proved the presence of accused in the vehicle and mere presence of accused in the vehicle would not involve them in the case conspiracy or abatement of offence was shown and proved therefore prosecution failed to prove the case against the accused.
' MEHARBAN AND 2 OTHERS V. THE STATE (2011 PCr.LJ 8) (Authored by one of us Irfan Saadat Khan, J).
In this case the appellants were acquitted on the ground that there was an unreasonable delay in sending the contraband items for chemical examination. There was contradiction in the statement of P. Ws. No effort was made to arrest the owner of truck and mere presence of a person in a vehicle was not sufficient for conviction against such person.
' GHULAM HUSSAIN AND 9 OTHERS ' V. THE STATE (2011 PCr.LJ 72) (Authored by one of us Irfan Saadat Khan, J)
In this case it was held that if a doubt is created benefit should be given to the accused.
' SARFARAZ GUL V. THE STATE (PLD 2004 SC 334)
It was held that the statement of official witnesses in absence of serious enmity could be relied upon if remained unshaken.
' MUNA WAR HUSSAIN ALIAS BOBI AND 2 OTHERS V. THE STATE (1993 SCMR 785)
It was held that court has to consider the entire material on the record as a whole and if it is convinced that case is proved conviction should be recorded.
' ZAFAR V. THE STATE (2008 SCMR 1254)
Police employees are competent witnesses like any other independent witnesses and their testimony could not be discarded merely on the ground that they are police employees.
' ABDUL RASHEED V. THE STATE (2009 SCMR 306)
It was held that no enmity was levelled or grudge has been alleged by the prosecution witnesses to falsely implicate the accused as large quantity of heroin cannot be thrust upon the accused in absence of any tangible and concrete enmity which had not been proved by the defence. In the said judgment appeal of the appellant was dismissed by specifically observing that prosecution has been successful in bringing home the guilt of the accused.
22. From a perusal of the above submissions, depositions and case-law cited by the counsel for the parties, we are of the considered view that the case of the prosecution is not free from contradictions.
23. In the deposition of P.W.1. He has categorically stated that all the belongings of Naimatullah were taken into custody which included mobile phone certain keys and copy of CNIC. P.W.2 in his deposition has also affirmed that upon personal search of Naimatullah all his belongings were taken into custody. Now the question would arise that if everything possessed by Naimatullah at that time were secured by ANF authorities how come he took out yet another key from his shirt to open the said container. No plausible reply in this regard has been given by the prosecution.
According to the learned counsel appearing for the accused this is a major lacuna in the case of the prosecution and the benefit of which has to be given to the accused. It is seen that the prosecution has failed to specify this aspect which in our view has been ignored by the learned trial Court..
24. We have also noted major contradiction in the deposition, of P.Ws. Regarding the place of incidence. In the F.I.R. The place of incidence has been mentioned as near Millennium Mall whereas according to the deposition of P.W.1 the place of incidence has been mentioned as opposite Millennium Mall and in the deposition of P.W.2 the same has been mentioned as at Millennium Mall.
The learned counsel for the accused has vehemently argued this aspect by inviting our attention to major contradiction and submitted that no explanation is available with the prosecution with regard to this contradiction about the place of the incidence. We have seen the contents of the F.I.R. And the deposition of P.Ws. And find the submission of the learned counsel to be forceful that there is a marked contradiction with regard to the place of incidence of which no explanation is available with the prosecution. Though the SPP ANF has termed the same to be minor but in our considered view this is a 'major contradiction that the persons making the raid on a particular place were not sure and, certain about the place of the incidence which creates doubt with regard to the case put forth by the prosecution.
25. We have also noted that the case property was desealed in presence of SPP and DC and it was not desealed in the Court. So far as this irregularity is concerned, there is no explanation available with 'the -prosecution that why the case property was de-sealed in presence of SPP and why not in the Court. In the case of Abdul Majeed, quoted supra, it was held by the Court that if a sealed property is not produced in Court it could not be safely relied upon. Applying the principle laid down in the cited case to the present case it would be seen that the case property was produced in de-sealed shape hence, case property could not be safely relied upon.
26.. There is also contradiction with regard to members of raiding party. It is seen from the Roznamcha Entry No,9 that at 1600 hours the persons who went for the raid were S.H.O. Himself, A.S.-I. Ali Gul, PCs Pervez Shah, Muhammad Akram, Rahib Ali, Shamrez Khan, Muhammad Nasir Khan, Amir Mukhtar, Abdul Hafeez, driver Muhammad Shehbaz and others, whereas in the deposition of P.W.1 the names of PCs Muhammad Akram and Muhammad Nasir Khan were not mentioned as members of raiding party. Similarly in the deposition of P.W.2 the names of A.S.-I. Ali and PC Abdul Hafeez were not mentioned. As per the learned counsel this also is a lacuna as the prosecution has failed to' properly mention the names of raiding party. On the other hand as per the SPP ANF this is a minor contradiction which would cause no dent in the case of the prosecution.
In opinion this contradiction, pointed out by the learned counsel, is liable to be ignored as in the Roznamcha Entry the names of all the personnel of the raiding party have been mentioned which include the names of the persons specifically mentioned by P.W.1 and P.W.2 and no new name has been mentioned either by P.W.1. Or P.W.2, hence, this objection of the learned counsel is hereby repelled.
27. We have also noted that there is a. Marked distinction in the signatures of the accused Naimatullah available on the rent a car agreement and available on.His CNIC which aspect had also remained unanswered. In our view this appears to be a major contradiction as no attempt whatsoever was made by the prosecution to verify the signatures of the accused or to send the matter to a Handwriting Expert. The signatures appearing on the Rent-a-Car agreement and on the CNIC are totally different from each other. It is seen that no effort was made by the prosecution to check the veracity of the document that whether the signatures appearing on the agreement were forged or that of the accused. In the case of Muhammad Aslam Javed, quoted supra, the appellant was acquitted by the Court after finding that the signatures of the appellant were forged.
We ourselves during the course of the arguments of the case, compared the signatures of the accused available on the CNIC with the Rent-a-Car agreement and found the same to be different from each other. We have also noted that in the car hiring contract neither signatures of any guarantor are appearing nor that of any witness which also cast doubt about the veracity of the said agreement. P.W.3 has also stated that in the said agreement particulars of the accused have not been mentioned properly i.e, neither his father's name nor address and CNIC number are mentioned in the said agreement which in our opinion if viewed in the light of the fact that signature of the accused appearing on the said agreement also appears to be forged makes the said agreement highly doubtful.
28. Although it was alleged by the accused Naimatullah that the case was foisted upon him on the instigation of A.S.-I. Asif Ali but no poof in this regard was produced by him.
29. There is also contradiction in the deposition of the P.Ws. With regard to weighing of the contraband items. From the deposition of P.W.1 it is seen that the contraband items were weighed on the electronic balance, whereas nothing is mentioned in this regard in the mushirnama about weighing the contraband items on the electronic balance. In the deposition of P.W.2 he has accepted that nothing has been mentioned in the mushirnama as well as in his statement under section 161, Cr.P.C., about the weight of the contraband items and weighing those items on the electronic balance. As per the learned counsel for the accused this also creates doubt about the weight of the contraband items alleged to have been recovered from the accused. We have also noted that there is also contradiction in the deposition of P.Ws. With regard to the fact that P.W.1 has stated that at the time of incident there was rush on the road whereas the same was denied by P.W.2. In the deposition of P.W.1 he has categorically mentioned that at the place of the incidence there was a rush of traffic as it was situated in a thickly-populated area however, he was unable to obtain any private person to act as mushir in the case. It is also seen from the deposition of P.W.1 that all the shops of the Millennium Mall were open at that time, whereas according to the deposition of P.W.2 it reveals that he has categorically denied that the time of occurrence was the time of rush of traffic. This also appears to be a contradiction so far the depositions of the two P.Ws.
Are concerned and no explanation is available with, the prosecution with regard to this contradiction. We have also observed that both the P.Ws. Have admitted that there is no previous record of conviction against all the accused persons. It is strange to note that the accused has been mentioned as an international narcotic peddler and was arrested on the pointation of the spy who had identified him to be an international drug smuggler but both the P.Ws. Have admitted that they have no record of the accused being involved in any charge prior to the present event.
Both the P.Ws. Have also admitted that there is no criminal record of the accused Naimatullah available with them. It is also seen that the moment the spy pointed out towards the car he F vanished away without confirming that the person who was taken into custody was the same person whom he had pointed out. Both the P.Ws. Have also admitted that they have not seen the accused Naimatullah prior to the present incidence; hence, labelling the accused as an international drugs peddler without any cogent material or evidence appears to be uncalled for on the part of the prosecution.
30. We have also noted that samples were not drawn from each packet and receipt of Malkhana was also not produced by the prosecution. It is seen that in all 240 kgs of charas was allegedly recovered from the car and the truck. From the truck total charas of 200 kgs was recovered whereas from the car 40 kgs charas was recovered. As per the deposition of P.W.1 he had drawn 48 samples from the packets for chemical examination, however, the .Conceded that he had not drawn the samples from each packet but had drawn from some packets only. The non-drawing of the said samples from the remaining packets also shows that though samples were taken for chemical examination but admittedly the same were not taken from each packet. To bring home the case of the prosecution without any tinge of doubt the prosecution has to prove its case beyond all reasonable doubts as it is a trite proposition of law that whenever a doubt is created an accused is liable to be acquitted not as a matter of grace but as a matter of right. However, it is seen that in the present case this aspect appears to be lacking. We have also noted that no enquiry was made from the truck owner or from J. Logistic International by the prosecution. It is seen that admittedly when the other four persons were taken into custody along with the truck which contained the logo "J. Logistic International" no effort was made by the prosecution to make some enquiry "from the said company which admittedly had not been done by the prosecution and no plausible explanation in this regard is available with them P.W.1. Has candidly admitted that no investigation whatsoever had been made by him with regard to the said company, however further submitted that the said company is not involved in smuggling of the narcotics which belies his own statement that how come without making any investigation he has come to the conclusion that the said company is not involved in the smuggling of the narcotics. This statement of P.W.1 also raises a number of questions with regard to the veracity of his statement made in this regard.
31. It is also worthwhile to mention that no description about weight of charas was mentioned in the mashirnama. We have also noted that no contraband item was recovered from physical search of accused persons. Both the P.Ws. Have accepted that H nothing was recovered from the physical search of the accused. We have also noted that no enquiry whatsoever was made in respect of the house from where it was alleged that the contraband items were placed in the truck. It has been alleged that all the contraband items were put in the truck from the house situated at Khayabane- Mujahid but it is very strange to note that no attempt whatsoever has been made by the prosecution to make any investigation in respect of the said house as to who owns the house, who lives in it and what connection the present appellant has with the house in question. It is noted that even in the CNIC of the accused his residential address has been mentioned as that of Bath Island but no attempt was even made by the prosecution to search either his house or the alleged house from where the contraband items in sealed cartons were placed in the truck. This inquiry, in our opinion, was necessitated to connect the appellant with the alleged offence and appears to be a major. Blow so far the case of the prosecution is concerned.
32. Learned counsel for the appellant has raised a specific issue that when, admittedly, the appellant/accused was produced before the Magistrate on 12-3-2009 but the Magistrate was not present in his office due to strike and, thereafter, the appellant/accused was again produced before the Magistrate on 1,3-3-2009 but no Randari record, which is a mandatory requirement of the law was maintained by the police. We asked a specific question from the Special Prosecutor, ANF, but no plausible reply in this regard was made, except that it was a mere irregularity. There are a plethora of judgments of the Superior Courts on the point that if law provides a procedure for doing of a thing in a particular manner the same is to be done in that particular I manner or not at all. Reference in this regard may be made to a decision of the Hon'ble Supreme Court of Pakistan in the case of Tehsil Nazim, T.M.A. Okara v. Abbas Ali and others (2010 SCMR II 1437).
33. It has been held in a number of decisions given by the superior courts that for giving benefit of doubt to accused person there need not be a number of circumstantial evidences to prove the innocence even a single evidence appearing to a 'prudent mind creating doubt is more than enough to acquit a person. It is seen from the above observations that in the case of accused Niamatullah the prosecution has failed to bring home its case free from doubts and contradictions.It has categorically been held by Hon'ble Supreme Court in the case of Tariq Pervez (supra) that there may not be many circumstances creating doubt and even if a simple circumstance creating reasonable doubt in a prudent mind exists then he will be entitled to such benefit. In our view the contradictions/ irregularities noted above are enough to create doubt in our mind with regard to the involvement of accused Naimatullah in the said crime. We therefore, by giving the benefit of doubt to the accused hereby acquit him from the charge. He may be released henceforth if not required in any other case. The order passed by the trial Court in the case of Naimatullah thus is hereby set aside.
34. Now coming to the connected acquittal appeal filed by the State, it was categorically admitted by both the P. Ws. That these four persons have no role to play in respect of the alleged contraband items. It is also an admitted position that nothing objectionable was recovered from their physical possession. The DW has categorically mentioned that Tahir Khan is his employee and in this regard had also produced certificate of the company. It is also noted that neither their names were mentioned by the spy nor the high officials of the ANF had given any information in this regard to the raiding party about the involvement of these four persons about drug trafficking. It is also an admitted position that no criminal record of the above four persons was available with the ANF. It is further noted that in the statements recorded under section 342, Cr.P.C. Of Tahir Khan and his brother Nadir Khan it has categorically been stated that they were stopped near PAF Museum which also had created doubt about the story put forth' by the prosecution about their involvement in the alleged crime. From the record it is clear that if for argument's sake it is accepted that contraband items were present in the truck, but the real question is whether these persons had any knowledge about the same or not. The possession of a contraband item has a direct linkage with the knowledge. The person possessing the contraband item may have no knowledge ab'out the same. It has been held in the above noted judgments that for convicting a person possession of contraband item should be necessary with the knowledge and if it is shown that possession was without knowledge then in such case an accused person could not be convicted. It is not the case of the prosecution that the contraband items were recovered on the specific pointation of the accused persons. Hence, in our considered view no tangible and confidence-inspiring evidence was available with the prosecution to convict them and in our view the learned trial court was fully justified in acquitting them by looking at the fact and circumstances. In view of above finding we do not find any illegality in the order passed by the learned Trial Court which in the circumstances is hereby upheld and the appeal filed by the State in this regard is hereby dismissed.
35. Both, the criminal appeal as well as Criminal Acquittal appeal are disposed of in the above terms.