IRFAN SAADAT KHAN, J.---These Criminal Jail Appeals have been filed against the Judgment dated 30-7-2010 passed by Special Court-I, C.N.S., Karachi whereby the learned Judge after finding the accused namely (i) Madeen Gul son of Jamroz Khan (ii) Israr son of Muhammad Jan (iii) Shabbir son of Abdul Rehman (iv) Bilal Hussain son of Hazrat Hussain (v) Yar Muhammad son of Muhammad Shard, involved in drug trafficking of charras weighing 5195 kg, found them guilty of offence punishable under section 6/9(c) of CNS Act 1997 (The Act), awarded sentence to suffer R.I.
For life imprisonment and also to pay fine of Rs. 100,000 each and in case of default of payment of fine to further suffer R.I. For Six months. However, the accused would be entitled of the benefit of section 382-B, Cr.P.C.
2. Briefly stated the facts of the case are that on 1-7-2009 ANF authorities received information that International Drug Peddlers Sher Alam and Abid Hussain through their companions Madeen Gul, Israr, Bilal Hussain, Shabbir Khan and Yar Muhammad were trying to smuggle huge quantity of charras in Truck No. C-1075 via Container No. IRSU-492421-5. It was informed to them that the said charras was being kept at Plot No. 11/4, near Maripur Treatment Plant. Hawks Bay Road, Karachi and the above named persons will transfer the charras to the Karachi Port. On receiving the said information a team comprising of officials, on the directions of the High-ups, Syed Sher Ali Shah Sheerazi S.-I. ANF P.S. ANF Clifton Karachi along with ASI Muhammad Muzzamil, ASI Mutalib. ASI Ali Gul, ASI Jafer Nadeern, Constable Amir Mukhtar, Constable Naeem Butt. Constable Akram, Constable Shaukat Iqbal and other ANF staff including the Spy in two mobiles proceeded from P.S. At 6-00 a.m. And reached at the said Godown at 6-30 a.m. An entry in this regard was also kept as Entry No.13. When the raiding party reached the place they found that the gates of the Godown were closed. They knocked the door and asked the passersby to act as witness, who refused to do so. Hence S.-I. Muhammad Muzzamil and P.C. Aamir Mukhtar were made the mushirs. Upon knocking the door one person opened the door and upon seeing the police party in uniform tried to escape but was apprehended by the Police party. When the said party entered into the Godown they saw two Trucks bearing No .C-1075 and Z-2581 parked there. Container No.IRSU-492421-5 was loaded on one of the truck. Four persons were present in the Godown who upon seeing the Police party tried to run away, who were also got hold of by the Police party. Upon inquiry those persons disclosed their identity as Madeen Gul who claimed to be the driver of Truck No. C-1075, Muhammad Jan who identified himself as cleaner of the said truck. Bilal Hussain who claimed to be cleaner of Truck No.Z-2581, Shabbir Ahmed driver of truck bearing No.Z-2581 and Yar Muhammad who claimed himself to be Chowkidar of the said Godown. Upon inquiry of the above named persons they disclosed that they, with the help of Sher Alam and Abid Hussain, had concealed charras in the secret cavities of the container loaded on the Truck and both these persons were present outside the Godown and the said charras kept in the container belongs to them. When the Police party searched outside the Godown no clue of these two persons was found out. The Police party then searched the container they found bundles of cloth were loaded in the said container. At this moment the accused persons disclosed that charras was being kept in the secret cavities of the container, which was hidden behind the iron sheets. The Police party then broke the said iron sheets and after opening the said sheet found 250 yellow colour plastic kattas marked as "Urea 46". The said kattas were then opened by the police and it was found that each bag contained 20 foil packets each marked as "Dawn Cafe". However when the said bags were opened charras in the shape of slabs was found in those packets. Each packet was thereafter weighed separately and each packet came to one Kg. Meaning thereby that in each bag 20 Kg of charras was packed. When the total weight of the charras was calculated it came out to 5000 kg.
Samples thereafter were drawn from each packet of each bag and in all 25 packets were separated for chemical analysis. Each bag was given separate serial number. The accused also disclosed that some more charras was hidden underneath the sleeper seat of the truck, which also was disclosed to be kept there on the instructions of Sher Alam and Abid Hussain. When the said place was searched five white plastic bags were recovered and when these plastic bags were checked out of one plastic bag 35 foil packets wrapped with yellow solution tape was found whereas in the remaining four plastic bags 40 foil packets wrapped in yellow solution tape were found out. Thus in all 195 packets were recovered from the said 5 white plastic bags and upon opening the same charras was found in each packet weighing one kg. Meaning thereby that a total 195 kg charras was recovered on the pointation of the accused persons. When the grand total of the entire charras recovered was weighed it came to 5195 kgs. Samples thereafter were drawn from each packet found from the truck also. On search of the Truck No. C-1075 Registration Book, Excise Tax Certificate, Insurance Book and Road Permit etc. Were recovered. Upon personal search of the accused persons some cash, mobile and CNIC etc. Were recovered. However from Madeen Gul key of the Truck No.C-1075 and from Shabbir Ahmed key of the Truck No. Z-2581 was also recovered. Upon inquiry they all disclosed that in collaboration and consultation with Sher Alam and Abid Hussain they had concealed the charras in the container and in the truck. Mushirnamas were prepared in presence of mushirs S.I. Muhammad Muzzamil and P.C. Aainir Mukhtar. On completion' of the routine investigation challan was submitted before the trial Court, which after finding the accused persons guilty of offence punishable under section 6/9(c) of the Act awarded sentences to them, as mentioned above. It is against this consolidated order that the present appeals have been filed.
3. Mr. M. Aslam Sheikh learned counsel appeared on behalf of the accused Yar Muhammad and submitted that the accused was wrongly implicated in the case as he was a Chowkidar only and had nothing to do either with the trucks or the container as he had no knowledge about the presence of charras in the truck or container. He submitted that the accused is a poor person and it is beyond apprehension that a poor person, like the accused, could possess such a huge quantity of charras. The learned Counsel has further relied on section 265-C, Cr.P.C. And submitted that the learned trial Court while passing the order has not considered that the provisions of section 265-C(d), Cr.P.C. Have not been complied with by the I.O. And thus the legal requirement in this regard have not been fulfilled. The learned Counsel also relied upon Articles 79, 38 and 39 of the Qanun-e-Shahadat Ordinance, 1984, and submitted that the trial Court has also not considered the provisions of these Articles, which had rendered the decision to be not in accordance with law and therefore, the order is liable to be set aside. In support of his above contentions the learned Counsel relied upon the decisions reported as Haji Inayat and another v.
The State (2010 PCr.LJ 825) and Ghulam Hussain and 9 others v. The State (2011 PCr.LJ 72).
4. Mr. Saifullah learned Counsel appeared on behalf of the accused Madeen Gul and Israr. He submitted that the accused persons were not identified by the complainant I.O., which is a prerequisite condition in a criminal trial. He submitted that the two witnesses examined were government officials and hence their deposition is highly doubtful. He further submitted that the accused persons has nothing to do with the recovery of the contraband items, as according to the learned Counsel the above named accused persons were in fact arrested one day prior to the date of the incidence and have illegally been involved in this case. He further submitted that the accused are poor labourers and nothing was recovered from their possession. The learned Counsel then submitted that the accused may be released. In support of his above contentions the learned Counsel relied upon the following decisions:-
(1) Mian Muhammad Arshad v. The State [2003 PCr.LJ 762]
(2) Amanat Ali and 2 others v. The State [2008 SCMR 991]
(3) Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others [1998 SCMR 25]
(4) Muhammad Iqbal v. The State [1984 SCMR 930]
(5) Noor Alam v. The State 12003 PCr.LJ 2003]
(6) Sher Khan v. The State [2003 MLD 259]
(7) Zahoor Ahmed Awan v. The State [1997 SCMR 543]
(8) Nek Muhammad and another v. The State [PLD 1995 SC 516]
(9) Shawaz Khan v. The State [2009 PCr.LJ 480]
(10) Sherzada v. The State [1993 SCMR 149]
(11) Munawar Hussain Manj v. The State [2003 YLR 1035]
(12) Johar Ali and another v. The State [2003 PCr.LJ 680]
(13) Nazar Hussain v. The State [2007 YLR 1601]
(14) Din Muhammad v. The Crown [1969 SCMR 777]
(15) Abid Ali and 2 others v. The State [2011. SCMR 2081]
(16) The State v. Tariq Mehmood [1987 PCr.LJ 2173]
(17) Muhammad Idrees Butt and 4 others v. The State [2004 YLR 3017]
(18) Rab Nawaz and others v. The State [PLD 1994 SC 858]
(19) Munir Ahmed alias Munni v. The State [2001 SCMR 56]
(20) Syed Karim v. Anti-Narcotics Force [PLD 2003 Karachi 606]
(21) Muhammad Janas and another v. The State [2010 SCMR 1016]
(22) Sikandar v. The State [PLD 1963 SC 17]
5. Mr. Waseem Samoo, representing the accused Bilal, adopted the arguments of the two counsel above and draws our attention to page 61 of the paper book and stated that in the cross- examination of P.W.1 he has mentioned that the packets, from where the said charas was recovered, contained mark "Down Cafe", whereas in the Chemical Examiner's report, available at page 75 of the paper book, it is mentioned that the packet contained the mark "Minas Down Cafe".
Learned counsel further submitted that it is evident from the Chemical Examiner's report that the foil packets sent to him for examination contained the label "Fermipan", whereas no discussion of such label is available from the deposition of the P.Ws. Which according to the learned counsel is a vital piece of evidence and has totally been ignored by the prosecution as they have failed to mention the correct and true description of the goods allegedly recovered from the accused persons. He, therefore, prayed that the accused may be released by giving them benefit of doubt.
In support of his above contentions the learned Counsel has relied upon the following decisions:--
(1) 2011 YLR 2276
(2) Meharban v. State [2011 PCr.LJ 8]
6. Mr. Nusrat Gul Malik, learned counsel appeared on behalf of the accused Shabbir and adopted the arguments of the three counsel above and submitted that no effort was made by the police party for arresting the main culprits of the case namely Sher Alam and Abid Hussain and have arrested the poor labourers from the spot. He submitted that no specific role has been assigned to the accused Shabbir. He also submitted that two persons were made mushirs in the present case, however, for the reasons best know to the prosecution, one mushir was dropped.
7. Learned A.P.-G., on the other hand, supported the order passed by the trial Court and. Stated that no major contradiction has been pointed out by the counsel of the accused. He submitted that no proof has been given by the accused that they were arrested one day prior to the day of the incidence. He submitted that seizure musliirnama and deposition of the P.Ws. Are not only in conformity but also support each other. He also submitted that admittedly when there was no enmity between the accused and the police why the police would foist a false case of recovery of more than 5195 kg charas from the accused persons. He submitted that accused Yar Muhammad had admitted that he possessed the keys of the godown, hence, his statement that he had no knowledge of the charas, recovered from the godown, hardly merits acceptance. Learned A.P.-G.
Also invited our attention to Article 129 of the Qanun-eShahadat Order and stated that as the accused persons were arrested from the place of incidence, hence they could not be absolved from the charges levelled upon them and they were rightly charged in this regard. He also submitted that running away of the accomplice of the accused persons proves that they were also involved in the present crime and ran away due to the fear of their arrest. Learned A.P.-G , however, admitted that no permission was taken by the A.N.F. Officials in this regard before making the raid on the godown. He also admitted that the requirements, as enumerated in sections 20 and 21 of the C.N.S. Act, have not been complied with. However, he submitted that no mala fide or ulterior motive was pointed out by the accused and the only plea taken in this regard was that they were poor persons, which could not be made the ground of their release, as they were apprehended red- handed from the place of the incidence and a huge quantity of charas was recovered from their possession. In support of his contentions the learned Special Prosecutor relied upon the following decisions:--
(1) Mehrab Khan v. The State [PLD 2002 Quetta 58]
(2) Wajid Ali Shah v. The State [2002 MLD 1982 Peshawar]
(3) Khawar v. The State [2003 PCr.LJ 811]
(4) Zafar v. State [2008 SCMR 1254]
(5) Muhammad Mushtaq v. State [2008 SCMR 742]
(6) Bahawal Khan v. State [2008 YLR 2158]
(7) Lai Muhammad alias Haji Laloo v. State [PLD 2009 Karachi 212]
8. We have heard all the learned counsel at length and have also perused the record and the decisions relied upon by them.
9. The deposition of P.W.1 Syed Sher Ali Shah Shirazi, who was S.-I. At P.S. ANF Clifton. Karachi, reveals the basic facts to be the same as given above. However, in his cross-examination mentioned that it is incorrect to suggest that when the police party reached the godown Ameer Khan and Fawad were present outside. He also admitted that he had not seen any person running away from the godown. He also stated that it is incorrect that before the arrest of the accused he had already arrested eight persons. He also stated that it is incorrect to suggest that when they entered into the godown the accused Yar Muhammad was not there. He also stated that the police party spent six hours at the godown in completing their search and mushirnama was prepared on the completion of the formalities. He submitted that after his return from the P.S. The entire charas along with the separated samples were deposited in the Maalkhana. He submitted that the iron sheet, which was welded, was broken with hammer and cutter with the help of the staff members. He stated that army personnel were also with him, however there was no army officer. He also admitted that he did not have a written order from the high-ups regarding conducting the investigation of this case, however, voluntarily stated that he was a competent officer to conduct the said investigation. He also submitted that the owner of the godown was not made accused in the present case, however, voluntarily submitted that the godown was on rent. He further stated that during interrogation accused Yar Muhammad disclosed that he was a Chowkidar hired by one Jumma Khan, who was the owner of the godown.
10. P.W.1 also stated that he recorded 161, Cr.P.C. Statements of the witnesses on the very day of the incidence at about 1700 hours. He also stated that he recorded the statements of the accused also on the same date. However, admitted that the copy of the said recorded statements were not supplied to the accused. He also stated that in the said statements the accused had admitted their involvement in commissioning of the offence. However, admitted that no such confessional statement was ever recorded before any Magistrate. He stated that the container was received by the absconding accused Farhan, who delivered documents of the container to Farooq, proprietor of Messrs Faraz Enterprises. He also admitted that the above observation has not been mentioned in any of the 161, Cr.P.C. Statement recorded by hid. He submitted that the accused had disclosed before him that the cavities in the container were made by them and the said items were hidden and concealed also by them. He also admitted that no charras was recovered from, the physical possession of the accused Yar Muhammad and the cloth loaded on the container was grey cloth.
He also admitted that the documents denoting number of bales of grey cloth and other clothes have been provided to him. He also admitted that no proof of depositing those bales in the Maalkhana has been produced by him. He also admitted that the samples were sent for chemical examination after delay of two days.
11. P.W.1 also admitted that he had mentioned that on the packets from , where the contraband items were recovered by him the packets contained mark of 'Down Cafe', whereas as, per the Chemical Examiner's report those packets contained the mark of Minas Down Cafe. However, he reiterated his submission that the word 'Down Cafe' was written on the said packets. He submitted that he had recorded the section 161, Cr.P.C. Statement of Jumma Khan, the owner of the godown.
He also stated that Yar Muhammad was the Chowkidar of the absconding accused. He also admitted that Yar Muhammad is a resident of l3ajor Agency. P.W.1 also admitted that the information of the availability of the huge quantity of charas was given to him by his high ups at 2- 00 a.m. Night. He admitted that he had not collected any documentary evidence to show that the accused Madeen Gul, Shabbir and Bilal were the agents or employees of absconding accused Bakhat Zada, Farhan and Abid. He also admitted that the spy had only informed him about the presence of charas and nothing has been told about the presence of the absconding accused at the premises. He also admitted that he made no effort to ascertain the ownership of the truck, however, voluntarily stated that a letter was sent by him to Peshawar to collect the said information which detail is available on record. He also admitted that the owner of the vehicle was not made accused in the present case. He. However, admitted that none of the accused were either owners of the vehicle or owners of the godown and not even tenants of the said godown.
12. The deposition of P.W.2 Muhammad Muzammil, S.-I. Of ANF, reveals the basic facts to be the same as that of P.W.1. However, in his cross-examination submitted that the record and entry for depositing the contraband items in Maalkhana was not produced by him in the Court. He further admitted that there was to mention in the mushirnama that army personnel were with them at the time of the raid. He also admitted that there was no mention about cordoning of the godown at the time of the raid. He also admitted that he had no knowledge that whether Sher Alam and Abid Hussain were outside the godown at the time of raid and when a disclosure about the presence of Slier Alam and Abid was made by the accused persons a search was made outside the godown but these persons were not there. He also admitted that there is no mention in his statement that the iron sheets were cut with the help of hammer and cutter. He also stated that the said iron sheets were cut open on the pointation of the accused. He also admitted that there was no mention in the mushirnama that both the vehicles were parked adjoining to each other in the godown. He also admitted that the samples were taken to the laboratory for chemical examination on 3-7-2009 but stated that he did not deposit the same for chemical examination on the said date.
13. P.W.2 further stated that it is incorrect to suggest that at the time of the raid inhabitants residing in the vicinity gathered at the spot and they were deliberately not made mushirs or witnesses in this case.
He also admitted that the packets of the samples do not contain signatures of any ANF official, however, voluntarily added that each sample packet was given a separate serial number, however, admitted that crime number was not mentioned on the boras/kattas, however, stated that the same was mentioned and perhaps has been erased. He submitted that he had no knowledge that Messrs Friends Corporation issued delivery orders regarding handling the cargo. He submitted that when the police party reached the godown nobody was there outside the godown. He submitted that it is incorrect to suggest that the owner of the godown was purposely not involved in the case.
He stated that no documentary evidence has been produced to show that the accused persons were the agents or the employees of the absconding accused Abid Hussain and Sher Alam. He submitted that he has no idea whether I.O. Of the case had taken any employment register into custody or not. He submitted that it is incorrect to suggest that he along with S.H.O. Sherazi raided the house of the accused Sher Alam and Abid Hussain and apprehended his brothers from their house and thereafter released them, He also admitted that it is incorrect to suggest that the accused were neither owners of the godown nor that of the truck and container. The statements of the accused persons recorded under section 342, Cr.P.C. Reveals that they have refuted all the allegations levelled upon them and stated that they were innocent and were falsely involved in the present case. The counsel representing accused Yar Muhammad had also produced documents showing that his family was residing in a refugee camp in Saman Bagh.
14. After the perusal of the record and the depositions of the P.Ws. We have come to the conclusion that in the present case the role of Yar Muhammad, Chowkidar was different from the role of the other co-accused namely Madeen Gul, Israr, Bilal and Shabbir Ahmed. We, therefore, deem it appropriate to deal with the appeal of Yar Muhammad separately. It is an admitted fact that Yar Muhammad was shown to be the Chowkidar of the Godown as according to the P.Ws. Keys of the godown were recovered from his possession. It is also seen from the record that neither key of the container or truck nor any document including driving license etc was recovered from his possession to connect him with the container and the truck, from where the charras was recovered. It is also an admitted fact that when the door was knocked by the police the person who opened the door and allegedly tried to run away was Yar Muhammad and none else. It is also clear from the deposition of P.Ws. That the four persons who were standing beside the container and truck, who also tried to run away, were the persons other than Yar Muhammad. In the deposition of P.Ws. They have categorically admitted that Yar Muhammad was the Chowkidar of the Godown and nothing was recovered from him except some visiting card, a mobile phone and cash Rs. 270.
15. It is also seen from the record that no employee register was obtained by the prosecution to prove that Yar Muhammad was not the Chowkidar of the said Godown. The learned Counsel produced before us certain documents to prove that Yar Muhammad was only the Chowkidar of the said Godown and had nothing to do with the contraband items recovered from the Godown.
He submitted that the accused is a poor person having no means to have such a huge quantity of charras in his possession. The learned Counsel also produced before us a copy of the photograph of the family showing that the family of the accused resides in refugee camp and thereafter submitted that it is beyond apprehension that he could either be considered to be an international drug peddler or an accomplice of the drug traffickers. He therefore, was of the opinion that the accused in view of the submissions is liable to be acquitted. The learned Special Prosecutor ANF agreed that the role of the accused Yar Muhammad is different from the role of other accused however submitted that as he was arrested from the place, from where the said contraband items were recovered, hence for all practical purposes he is to be considered as an accomplice of the other accused. We have, as mentioned above, observed that nothing incriminating had been found against the appellant Yar Muhammad as it is seen that P.Ws. Have categorically admitted that nothing was recovered from his physical possession moreover no effort was made to verify the fact that whether the accused was a Chowkidar of the Godown or an accomplice of the other accused as neither any employment register nor any other document had been obtained in this regard.
16. It has also been brought to our knowledge that at present the son of accused Yar Muhammad is doing the job of the Chowkidar in the said godown in the place of his father, which also establishes that accused Yar Muhammad was the Chowkidar of the said godown and had nothing to do with the items recovered in this regard. We have also seen from the record that the owner of godown Jumma Shah was not examined by the Prosecution, which also proves that no serious effort was made by the Prosecution to implicate the accused with the offence. The Prosecution also failed to connect the accused with the absconding accused Bakhat Zada, Farhan and Sher Alam when admittedly he was an employee of Jumma Shah, the owner of the godown, and not of the absconding accused. It is also seen that there is no ocular evidence of the crime to connect the accused with the commissioning of the offence as there was no witness to state that it was Yar Muhammad who had hidden the charras in the container or the truck. Even the spy had not named Yar Muhammad among the suspected drug peddlers. It is also an admitted fact that the charras was hidden in secret cavities of the container and underneath the sleepers' seat in the truck, hence it is impossible to state that by taking a mere look at the ,container or the truck it could be said that some contraband items were hidden in them.
17. All these above contradictions/irritants if read in juxtaposition it will be seen that the prosecution has failed to connect Yar Muhammad with the recovery of the said contraband items and mere presence of the accused from the place would not implicate him in the involvement of the said crime. After going through the deposition of P.Ws. We have not been able to find any connection of the appellant with the other co-accused persons or with the ownership of either container or truck or that he was a driver or cleaner of the said vehicles. We therefore are of the opinion that in his case the Prosecution has not been successful in connecting him with the present crime and a very serious doubt is created that whether he was connected with the co-accused or not. We therefore are of the considered view that as reasonable doubt has been created with regard to the role of the accused and as the Prosecution has not been able to establish his case in the circumstances the accused is liable to be given the benefit of doubt. We are guided by the principle that it is better to acquit 100 guilty persons than to charge one innocent person, which is the prime responsibility for the safe administration of justice. We therefore in view of the observations made above acquit the appellant from the present charges. He may be released forthwith if not required in any other case.
18. We will now take up the appeals of other co-accused persons who were found by the police party standing nearby the container and the truck and upon whose pointation these contraband items were recovered. It is seen from the record that the spy had given information to the ANF Department about the presence of the charras in the godown. The spy had also informed that the international drug peddlers would try to smuggle the charras with the help of their agents. It is seen from the record that from personal search of Madeen Gul, alleged to be the driver of one truck, key was recovered and from the personal search of Shabbir Ahmed, alleged to be the driver of another truck also, a key was recovered. Hence so far as the role of Madeen Gul and Shabbir Ahmed is concerned, it is established that they were the custodians and the drivers of the trucks. It is also seen that when the police party apprehended them they specifically pointed out not only about the secret cavities in the container but also about the charras kept in one of the truck. They also admitted that they were in collaboration and consultation with Abid Hussain and Sher Alam and have concealed the said charras on their instructions. It is also seen that it was not denied by the counsel representing these accused persons with regard to either non-recovery of the charras or that the accused persons were not the drivers, cleaners and the custodians of the container and trucks. Not a single evidence has been produced by the learned Counsel for the appellants to prove their assertion that the accused were poor labourers and were arrested one day prior to the date of the incidence. In the statement recorded under section 342, Cr.P.C. Of the accused Shabbir Ahmed, he had admitted that he was a driver.
19. It is also seen that the Chemical Examiner's report was in positive, necessary legal requirements in this regard have been fulfilled by the Prosecution. The difference in the marking 'Don Cafe' as mentioned by P.W.1 and the mark on the forensic report as 'Minas Don Cafe' and Fermipan', in our view is only a minor contradiction which would not make any dent in the case of the Prosecution. It is also seen from the record that the contraband items were recovered on the specific pointation of the accused persons which also proves beyond doubt that they were in the knowledge of fact that the contraband items have been C secretly kept in the container and the truck. The samples were also drawn in accordance with the law. So far as the allegation that complainant and I.O.
Were the same persons, suffice to observe that it has already been held in a number of decisions given by the superior Courts that the complainant could be an I.O. We also do not find any significant material contradiction, improvement and discrepancy etc. In the deposition of P.Ws., barring few minor contradictions, which are ignorable. We have also seen that there is no enmity of the police with the accused persons to falsely implicate them. The decisions relied upon by the learned Counsel for the appellants are distinguishable as in some of those judgments it was held that when there are contradictions and discrepancies in the statement of P.Ws. Accused are liable to be acquitted, whereas in the present case no major contradiction and discrepancy has been found out. The appellants have also relied upon some judgments to prove that capital punishment cannot be given in the cases when there is no consistency in the deposition of P.Ws., whereas in the present case we have found that the depositions of P.Ws. Have remained consistent and no major contradiction has been found in this regard. The appellants thereafter drew our attention to certain decisions where the witnesses were not found to be reliable, whose facts are quite distinguishable from the facts of the present case. Our attention was also invited to a decision where no public was associated with the investigation but that case also is distinguishable on the ground in that case the accused were apprehended from a bus stop which was a thickly populated area whereas in the present case the accused were arrested from a godown which could not be considered to be a public place. The learned Counsel for the appellants have also relied upon some judgments regarding the role of the driver or cleaner etc. But those cases also are found to be quite distinguishable from the facts of the present case. The learned Counsel also relied upon certain decisions wherein it was held that Prosecution should make out its case beyond any doubt and in case of any doubt the benefit should go to the accused. There is no cavil to the above proposition but in the present case it is seen that Prosecution was able to bring home the charges levelled against the accused persons and all the charges levelled in this regard by the prosecution have not been refuted in strict sense so as to create a benefit of doubt in the present case. The learned Counsel for the appellants have also relied upon some judgments wherein it was held that if nothing is recovered from the physical possession of accused persons they can't be convicted.
Suffice to say that no doubt nothing was recovered form their physical possession but a huge quantity of charms of more than 5195 kgs was recovered on their specific pointation, which fact was not controverted by the Counsel representing the appellants.
20. It is a trite law that the court while testing the testimony of the witnesses should consider that whether there is consistency in the deposition of P.Ws. Or not and in the present case it is seen that the deposition of P.Ws. Have mostly remained the same, unshettered and consistent hence it could not be said that Prosecution has not proved its case beyond reasonable doubt. It is also a trite proposition of law that no universal principle could be applied to any case with regard to prove the fact that whether the Prosecution has been able to make out its case beyond any reasonable doubt or not but each case has to be considered by looking at the record, facts and circumstances and deposition of P.Ws. Etc and in the present case in our considered view the Prosecution was able to make out a case against the accused persons without any reasonable doubt.
21. In the criminal jurisprudence Prosecution witness is not tested on the basis of quantity but on the basis of the quality of the evidence. It is not a person but the statement which is to be seen and adjudged. Reference in this regard may be made to the decision reported as Abid Ali and 2 others v. The State (2011 SCMR 208). Though the accused Madeen Gul and Shabbir Ahmed were standing beside the vehicles but it could not be denied that the keys were not recovered from their possession, which is a confidence-inspiring evidence showing the possession of those vehicles. So far as the case of Israr and Bilal is concerned, both are said to be cleaners but it is also established that they were connected with the said vehicles as on their pointation also the said contraband items were recovered, which proves their connection with the contraband items and in our considered view were rightly convicted by the learned trial Court.
22. So far as the decisions relied upon by the Special Prosecutor is concerned it is seen that it was held in the decision of Bahawal Khan v. The State (2008 YLR 2158) wherein it was observed as under:- "S.9(c)--:-Appreciation of evidence---Evidence of the prosecution was very convincing and no cogent reason was available to involve accused in the case falsely---Pursuant to a raid.
Conducted by the police, both accused were apprehended and a heavy quantity of narcotics was recovered from them---Such a huge stuff could not be foisted upon falsely---Evidence of recovery in respect of quantity of narcotic substances recovered and sent for chemical analysis was consistently established by two prosecution witnesses---Report of the Chemical Examiner with regard to recovered ,substance was also positive---Other prosecution witnesses too had supported the prosecution version ---Some discrepancies or contradictions, could exist in the statements of prosecution witnesses but they remained consistent on material points---Accused had not alleged their enmity with the police officials nor anything had been brought on record in that respect---Police officials were as good witnesses as anyone else---Accused had stated in their statement under S.342, Cr.P.C. That they had been roped in the case on account of their enmity with two persons but no material had been brought on record to substantiate their said plea---Mere assertion of accused that they were innocent was of no consequence--Defence version advanced by accused appeared to be an afterthought---Prosecution had proved its case against accused beyond any reasonable doubt".
In an another judgment the Hon'ble Supreme Court of Pakistan in the case of Zafar v. The State (2008 SCMR 1254) observed as under:-- "So far as the objection of the learned Counsel for the appellant that the Investigating Officer is the complainant and the witness of the occurrence and recovery, the matter has been dealt with by this Court in the case of State through Advocate-General Sindh v. Bashir and others PLD 1997 SC 408, wherein it is observed that a Police Officer is not prohibited under the law to be complainant if he is .a witness to the commission of an offence and also to be an Investigating Officer, so long as it does not in any way prejudice the accused person. Though the Investigating Officer and other prosecution witnesses are employees of A.N.F., they had no animosity or rancor against the appellant to plant such a huge quantity of narcotic material upon him. The defence has not produced any such evidence to establish animosity qua the prosecution witnesses. All the prosecution witnesses have deposed in line to support the prosecution case. The witnesses have passed the test of lengthy cross-examination but the defence failed to make any dent in the prosecution story or to extract any material contradiction fatal to the prosecution case. The prosecution has been successful to bring home the guilt of the appellant to the hilt by placing ocular account, recovery of narcotic material, the Chemical Examiner report G.I., Exh. P.3. The learned counsel for the appellant has not been able to point out any error of law in the impugned judgment and the same is unexceptionable.
For what has been discussed above, the appeal being devoid of any merits is dismissed".
In an another judgment a Division Bench of Balochistan High Court in the case of Mehrah Khan v.
The State (PLD 2002 Quetta 58) observed as under:-- "It cannot be said that appellants, who were drivers/transporters of the vehicles up to other end were not aware of its contents. They were in conscious possession of the contraband items".
Hence in the light of the above facts and decisions we have come to the conclusion that the contraband item recovered belongs to the accused persons as the same was recovered on their pointation specifically if viewed in the light of the fact that key of the container and the truck was also in their possession and no document was produced by them either before the trial Court or before us to prove that they were neither guilty of the offence nor they were able to produce any independent witness to prove that they had any pervious enmity or grudge with the police party.
We, therefore, dismiss their appeals and up hold the order passed by the learned trial. Court and maintain the sentence awarded by the trial Court to the accused namely Madeen Gul son of Jamroz, Israr Ali son of Muhammad Jan, Shabbir Ahmed son of Abdul Rehman and Bilal Hussain son of Hazrat Hussain. All the accused persons were found guilty of the charge punishable under section 6/9(c), of the CNS Act and were rightly awarded to suffer R.I for life imprisonment each and to pay. Fine of Rs.1,00,000 each and in case of default of payment of fine to suffer R.I for six months more. The accused shall however be entitled for the benefit of section 382-B, Cr.P.C.
23. The upshot of the above discussion is as follows:--
(i) The accused Yar Muhammad is acquitted from the charges levelled upon him and so far as the order passed by the learned trial Court in his case is concerned, the same is hereby set aside:
(ii) However the accused namely Madeen Gul, Israr, Shabbir Ahmed and Bilal Hussain are found to be guilty of the offence under section 6/9(c) of the CNS Act and are convicted in the manner as prescribed above and the order passed by the learned trial Court in so far as their cases are concerned the same is hereby upheld.
24. The above Appeals are disposed of in the extent and manner as indicated above.