' MUSHIR ALAM, J.---By this single judgment, we intend to dispose of both the listed appeals, as they arise out of the same F.I.R. And impugned judgment.
2. The appellants Sharif Taj, Riaz Mian and Adil Sher had filed Criminal Petition for Leave to Appeal No.37-K of 2013 challenging the concurrent conviction judgments recorded by the learned Special Judge (CNS), Hyderabad as well as the High Court of Sindh, Circuit Court, Hyderabad, dated 16-7- 2010 and 5-3-2013, respectively, for an offence under section 9(c) of Control of Narcotic Substances Act, 1997 thereby sentencing them to suffer imprisonment for life and fine of Rs.200,000 each and in default thereof to undergo RI for six months with benefit of section 382-B, Cr.P.C.
Besides the above named appellants, one Muhammad Saleem, appellant in Criminal Appeal No.46-K of 2013, was also charged along with the accused persons and meted out the similar conviction and sentence. Leave to appeal was refused to the extent of appellant Sharif Taj, whereas it was granted to consider the cases of Riaz Mian and Adil Sher, by this Court, vide order dated 13-5-2013.
3. Leave to appeal was also granted by this Court in Criminal Petition No.52-K of 2013, filed by Muhammad Saleem, noted hereinabove, and both the appeals were ordered to be heard together, vide order dated 4-11-2013.
4. Facts, in brief, as set out in the F.I.R., are that on 27-5-2008, on spy information regarding smuggling of narcotics, a Bus bearing Registration No.LXX-6395 was intercepted by ANF police in front of Ayub Restaurant, Hyderabad National Highway at the road leading towards Hala.
According to the F.I.R., on the pointation of the spy, one Sharif Taj was identified as the principal accused, who disclosed himself to be the owner of the bus and further disclosed that his luggage comprised of four iron boxes, two gunny bags and one nylon gunny bag lying on the roof of the bus. Muhammad Muzammil Ahmed, SubInspector/SHO, ANF Police Station, Hyderabad, who conducted the raid, Climbed over the roof of the bus with Sharif Taj, who identified his luggage, which was brought down. Accused Sharif Taj took out the keys from his right pocket and opening of the boxes led to the recovery of narcotic substances total weighing 420 kilograms of chars and 17 kilograms of opium. Personal search of said Sharif Taj led to the recovery of one .30 bore pistol along with eight live rounds. The recovered narcotic was taken into custody, samples were prepared and he was formally arrested along with his ca-accused namely Muhammad Saleem, alleged to be driver; Riaz Mian, stated to be co-driver; and Adil Sher, the conductor of the bus. From their persons, it is stated that some money and cell phones were also recovered. All the, accused persons were sent up for trial. Charge was framed against them on 26-11-2008 for possessing, controlling and selling 420 kilograms of chars and 17 kilograms of opium. The prosecution examined Sub-Inspector ANF Muhammad Muzammil Ahmed as P.W.1 and HC Rahim Bukhsh as P.W.2. The statements of the apprehended accused were recorded under section 342, Cr.P.C.
Wherein they denied the prosecution story and pleaded false implication.
5. The learned trial Court, vide judgment dated 16-7-2010, convicted and sentenced all the four accused persons, as noted in the narrative above. The appeals preferred by the accused also met the same fate, vide impugned judgment dated 5-3-2013, passed by the High court of Sindh, Circuit Court, Hyderabad. Hence, these appeals with leave of the Court.
6. Mr. Ilam Din Khattak, learned Advocate Supreme Court, representing the appellants, contends that there is nothing on record to show that the appellants were driver, co-driver and or conductor of the bus wherefrom it is alleged that the subject narcotic was recovered. He next contended that recovery of the subject narcotics, if any, was effected on the pointation of Sharif Taj, who not only claimed the ownership of the bus, but also pointed out the impugned iron boxes and gunny bags said to have contained the subject narcotics. He added that the keys of the boxes were also recovered from the possession of the accused Sharif Taj. He stated that when the owner himself came forward, there was no reason to impute any knowledge of the said baggage, containing narcotic substance to the appellants. It was next urged that the recovery was effected on the pointation of Sharif Taj, who is the principal accused and his petition for leave to appeal was refused by this Court, vide order dated 13-5-2013. He further stated that there, is no incriminating material or evidence on record that could connect the appellants with the commission of crime, as recorded by the learned trial Court as well as the High Court through the impugned judgment.
7. Mr. Habib Ahmed, learned Special Prosecutor, ANF, has contended that the driver and the co- driver of the bus are saddled with the responsibility, as held in the case of Muhammad Noor v. The State (2010 SCM R 927). He stated that it was a huge quantity of narcotic, which was being transported through the aforementioned bus and without the connivance or participation of the driver, co-driver and the conductor of the bus, the same could not have taken place. He has vehemently supported the impugned judgment.
8. We have heard the learned counsel for the parties and have minutely gone through the material available on record. It is noted that in the F.I.R., it was specifically mentioned that one Sharif Taj disclosed himself to be the owner of the bus and also claimed four iron boxes and three gunny bags, lying on the roof of the bus and on examination, it is detailed that a huge quantity of narcotic substance was recovered. No where in the F.I.R., it has been mentioned that the recovered narcotic was in the joint possession of the appellants nor in the charge dated 26-11-2008, but they were saddled with the joint possession of the same.
9. Muhammad Muzammal Ahmed (P.W.1), the star witness of the recovery, categorically stated in his evidence that "on my summary inquiry Sharif Taj disclosed that he is the owner of the bus and his luggage having four iron boxes and 3 bags are lying on the roof of the bus. On which we climbed over the roof of the bus along with Sharif Taj who identified his luggage. On pointation, his luggage boxes step down. Accused gave the keys of his boxes to me in presence of witnesses" and further narrated, in detail, the recovery from each of the iron. Boxes and gunny bags. In cross- examination, he admitted that "on the pointation of Muhammad Saleem nothing was recovered".
He also stated that "it is correct that property so recovered were recovered on the roof of the bus".
In his cross-examination, he further stated that "I do not know when the luggage is booked the Adda Manager is responsible for booking the same. I do not know that driver is responsible for the same". Similar evidence was given by HC Rahim Bukhsh (P.W.2).
10. Mr. Habib Ahmed, learned. Special Prosecutor, ANF has not been able to point out any piece of evidence that could connect the appellants Riaz Mian, Adil Sher and Muhammad Saleem with the commission of the subject crime. When the owner of the bus was riding the bus and the statement of P.W.1 was that the baggage was booked by the Adda Manager, it cannot be said that under the given facts and circumstances, there was any material on record to show that the baggage was either kept on the roof of the bus by the cleaner and or any of the driver to attribute knowledge of transportation of huge quantity of narcotic so recovered. The learned Special Prosecutor has also not been able to point out any incriminating piece of evidence against the appellants that could connect any of them with the commission of the crime or saddle them with the knowledge that they were privy to the IB COMMISSION of the subject crime.
11. For whaf has been discussed above, the listed appeals are allowed the impugned judgment of the High Court, dated 5-3-2013, maintaining the conviction and Sentence, recorded oy the learned trial Court against Riaz Mian and Adil Sher (appellants in Criminal Appeal No. 3-K of 2013) and Muhammad Saleem (appellant In Criminal Appeal No.46-K of 2013), are set aside; they are acquitted of the charge; and they will be set at liberty forthwith, if not required in any other custody case.