MIRZA VIOAS RAUF, J. The instant appeal is directed against the judgment dated 13th of March, 1999 passed by the learned Judge Special Court Control of Narcotic Substances, Lahore, whereby the appellant and his co-accused were convicted under Sections 9(c) & 15 of The Control of Narcotic Substances Act, 1997 in case FIR No.19 dated 25th of May, 1997 registered at Police Station Anti- Narcotics Force, Lahore and were sentenced as under :- {{ TABLE }} Sana Ullah Rigorous imprisonment for three years and six months. Abdul Ghafoor alias Imran Rigorous imprisonment for three years and six months. Zeeshan Ahmad Rigorous imprisonment for three years and six months. (4) Rizwan Ahmad Rigorous imprisonment for three years and six months. {{ TABLE }} Benefit of Section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to the appellant as well as his co-accused.
2. Precisely the facts necessary, as divulged in the statement of Ahmad Jalil Raja, Group Leader, complainant (PW3) are as under:- "On 27.5.97 I was investigating the case FIR No.19/97 as I.O. During the investigation two accused persons namely Sina Ullah and Zishan Ahmad disclosed that they can get recovered heroin from one of their associate namely Mohammad Sadaqat. Upon this information I constituted a raiding party under the supervision of Major Abdul Rab and others and in the company of accused persons Sina Ullah and Zishan Ahmad raided the house of Mohammad Sadaqat situated in Kocha Kharaiyan inside Lahore Gate Lahore. The house No. Was 3815/8. The house was locked. Upon the pointation of accused-persons mentioned above the lock was broken open and the house was searched. From a room on the roof of steel almirah 10 gm heroin P.1 was recovered which was taken into possession vide memo. Ex.PE and the recovery memo was signed by the witnesses namely Raja Khalid Mehmood and Sahib Khan. 2 gm heroin was separated for chemical examination. The parcels were sealed and staped ANF.
The Director Intelligence, ANF, Islamabad, informed to the Regional Director, ANF, Lahore vide letter No.10(2)/ANF/Int/97 dated 12.3.97 that one Pakistani National, namely Amin Majid Sindhu, was apprehended on Bandara Nakay Airport by Colombo Police Narcotics Bureau and 2.100 kg heroin was recovered from his possession, accused flew from Karachi by Air Lanka flight No.U-1-423. The said person is resident of Almajid Building near Railway Crossing Mohallah Jatan Rahwali District Gujranwala. The said letter and the letter from Director Intelligence Islamabad are Ex.PF and Ex.PG respectively. According to this letter the heroin was carried by Amin Majid Sindhu just as carrier for Abdul Ghafoor. On receipt of above said information Regional Director, ANF, Lahore directed me to register a case and proceed for further investigation of the same whereupon I registered the present case. I prepared the report dated 25.5.1997 Ex.PH and on the basis of which FIR Ex.PH/1 was recorded."
3. On the basis of above said facts, case FIR No.19 dated 25th of May, 1997 was registered under Articles 3 & 4 of The Prohibition (Enforcement of Hadd) Order, 1979, Sections 9(c) & 15 of The Control of Narcotic Substances Ordinance, 1997 read with Section 120-B of The Pakistan Penal Code, 1860 at Police Station Anti-Narcotics Force, Lahore. After registration of case, formal investigation was started and on conclusion of the same, report under Section 173 of The Code of Criminal Procedure, 1898 to the extent of accused/appellant alongwith his co-accused namely Abdul Ghafoor, Zeeshan Ahmad and Rizwan Ahmad was submitted before the learned trial court and they were sent to face the trial. Haji Wisal alias Siyal co-accused was also arrested and to his extent, report under Section 173 of The Code of Criminal Procedure, 1898 was submitted but he could not be produced before the Court as he was confined in Peshawar Jail. Whereas co-accused Badar Munir, Mohammad Sadaqat and Zainul Aabdin were not arrested and they were declared proclaimed offenders.
Therefore on receipt of report, the learned Judge Special Court Control of Narcotic Substances, Lahore framed the charge against the appellant and his co-accused namely Abdul Ghafoor, Zeeshan Ahmad and Rizwan Ahmad under Sections 9(c) and 15 of The Control of Narcotic Substances Act, 1997 to which they pleaded not guilty and claimed trial.
4. In order to prove the alleged recovery, the prosecution examined as many as five witnesses. Ch. Mohammad Ismail Magistrate 1st Class, Chakwal appeared as PW1. He recorded the statements of the accused/appellant and his co-accused namely Badar Munir, Mohammad Sadaqat and Zainul Aabdin under Section 164 of The Code of Criminal Procedure, 1898. Sahib Khan SI, being one of the recovery witness appeared as PW2. He narrated the events which led to the alleged recovery.
Ahmad Jalil Raja, Group Leader, who was complainant as well as Investigation Officer of the case, was examined as PW3. Muhammad Sarwar Bhutta SI appeared as PW4, he was one of the recovery witness. Mian Sajjad Ahmad was also examined by the prosecution as PW5. Learned Special Public Prosecutor then closed the prosecution evidence. After completion of prosecution evidence, statement of accused/appellant and his co-accused were recorded under Section 342 of The Code of Criminal Procedure, 1898. The accused/appellant in his statement under Section 342 of The Code of Criminal Procedure, 1898 pleaded his innocence and denied the allegations leveled against him. He submitted that he has been falsely involved in this case on account of collusion with one Khawaja Sadiq Wyne just to show efficiency by the Anti-Narcotics Force Department. The accused/appellant neither appeared in his own defence in terms of Section 340(2) of The Code of Criminal Procedure, 1898 nor produced any defence evidence. On conclusion of evidence and hearing both the sides, the learned trial court vide its judgment dated 13th of March, 1999, convicted the appellant and his co-accused Abdul Ghafoor, Zeeshan Ahmad and Rizwan Ahmad, as already mentioned in paragraph No.1 of the instant judgment.
5. Learned counsel for the appellant submitted that there is no evidence available with the prosecution to prove the guilt of the accused and the conviction was recorded illegally and unlawfully. He maintained that the impugned judgment is based on self-contradictory evaluation of evidence. Learned counsel contended that the prosecution has badly failed to establish any contact of the appellant with the main accused. He further contended that the statement of the appellant recorded under Section 164 of The Code of Criminal Procedure, 1898 is not admissible in evidence, as the learned Judicial Magistrate has violated the mandatory provisions of law while recording the said statement. In support of his contentions, learned counsel has relied upon "MUHAMMAD AMIN versus THE STATE" (PLD 1990 Supreme Court 484), "ABDUL LATIF versus STATE" (PLJ 1999 SC 264) "BAGH ALI versus MUHAMMAD ANWAR AND ANOTHER" (1983 SCMR 1292) and "MUHAMMAD ISRAR and another versus THE STATE" (2002 P Cr. L J 1072).
6. Conversely, learned Senior Special Prosecutor appearing on behalf of Anti-Narcotics Force submitted that the instant case was registered against the appellant on the basis of information received from Sri Lanka where the main accused Amin Majid Sindhu was arrested on account of recovery of heroin. Learned Senior Special Prosecutor contended that the prosecution has led overwhelming evidence against the appellant and he was rightly convicted by the learned trial court. He emphasized that the statement recorded under Section 164 of The Code of Criminal Procedure, 1898 was duly proved by producing the concerned Magistrate as PW1. Learned Senior Special Prosecutor contended that the co-convicts did not challenge their conviction and even the present appeal was filed after a considerable delay. Learned Senior Special Prosecutor argued that the appellant was previously convicted in case FIR No.138 of 1996 and he is a known drug peddler.
7. We have heard the learned counsel for the appellant as well as learned Senior Special Prosecutor for Anti-Narcotics Force and also perused the record with their assistance.
8. The charge against the appellant consists of two set of allegations. First, the appellant alongwith co-convicts was Implicated in the present FIR after inquiry conducted by the Anti-Narcotics officials in pursuance to receipt of information (Exhibit-PF) from Colombo. After his arrest, statement under Section 164 of The Code of Criminal Procedure, 1898 was got recorded before the Magistrate on 7th of June, 1997. The perusal of said statement clearly reveals that the same is not sufficient to prove the guilt of the appellant neither any concrete link is established from the said statement with the main accused who was arrested in Sri Lanka which resulted into start of inquiry.
In order to prove the credence of the statement recorded under Section 164 of The Code of Criminal Procedure, 1898, the prosecution examined Ch. Muhammad Ismail Magistrate as PW1.
While examining the statement of said prosecution witness, we found that there are glaring illegalities committed by him while recording the statement under Section 164 of The Code of Criminal Procedure, 1898. He has failed to comply with any of the requirement laid down in Section 164 of the Code ibid. We while examining the statement itself found that even the signature of the appellant was not obtained at the foot of his statement as required under the law and it appears as the same was reduced into writing after obtaining the signature of the appellant on a blank paper. This aspect also finds support from the statement of accused under Section 342 of The Code of Criminal Procedure, 1898 as in an answer to question No.11, he uttered as under :- "The ANF police had received a dis-information and they under some mis-conception arrested me in this case falsely and in fact this false case had been registered by ANF police by joining hands with one Khawaja Sadiq Wyne with whom I used to run joint business of Poultry Farm and who intended to take over the whole business by keeping me away from said business. So he inconnivance with I.O. Of this case got the instant case falsely registered against me and when I was arrested in this case Ahmad Jalil Raja I.O. Showed me the last worn blood stained clothes of Hamayun Gujjar and threatened me that I would face the same fate if I failed to make any statement except what he dictates. Under these circumstances and continuous pressure he obtained my signatures on a white paper."
This observation further got strengthen from the statement of Mian Sajjad Ahmad (PW5) who during his cross-examination deposed as under :- "Volunteered Ahmad Jalil Raja threatened me to associate me in the investigation of this case and he showed me the warrant of arrest issued against me by the learned Ilaqa Magistrate. I stated before the court that Ahmad Jalil Raja threatened me that if I did not make the statement according to his wish I will have to face harassment (~~~~~~~ ). It is correct to suggest that Sina Ullah accused is resident of Abdullah Pura, Faisalabad. It is correct to suggest that Sina Ullah is a business man and he is engaged in business of medicine."
The learned trial court even its judgment have observed that the Illaqa Magistrate did not record the statement of the accused in accord with the mandatory provisions of Section 164 of The Code of Criminal Procedure, 1898.
9. In view of above circumstances, we are of the considered view that the first limb of the prosecution evidence is not proved in accordance with law and the conviction cannot be based on such a weak piece of evidence. Reliance in this respect can be placed on "MUHAMMAD AMIN versus THE STATE" (PLD 1990 Supreme Court 484). The relevant extract from the same is reproduced below :- {{ URDU TEXT }} The same view was reiterated in the cases of "ABDUL LATIF versus STATE" (PLJ 1999 SC 264) "BAGH ALI versus MUHAMMAD ANWAR AND ANOTHER" (1983 SCMR 1292) and "MUHAMMAD ISRAR and another versus THE STATE" (2002 P Cr. L J 1072).
10. The second portion of charge against the appellant was based on the alleged recovery of ten grams heroin from the house of Muhammad Sadaqat (proclaimed offender) on the alleged pointation of the appellant and the recovery of Rs.24,00,000/- from him. In order to prove this part of the charge, the prosecution examined Mian Sajjad Ahmad as PW5 whose evidence has already discussed above. The prosecution thus failed to lead any cogent evidence in order to prove that the recovery of Rs.24,00,000/- is derived from drug trafficking as the said sole witness did not support the prosecution case and even he was not declared hostile by the prosecution. In order to prove the recovery of ten grams heroin, the prosecution examined Sahib Khan SI (PW2) and Ahmad Jalil Raja Group Leader as PW3. As per their statements, the appellant alongwith Zeeshan Ahmad co-accused led to the house of Muhammad Sadaqat (proclaimed offender) wherefrom ten grams heroin was recovered. However when Sahib Khan SI (PW2) was cross-examined on this aspect, he deposed as under:- "About 4/5 members of the raiding party remained outside the house rest of the members entered into the house/place of recovery. Some of the members of the raiding party including me, on the direction of I.O, started making search of the house. However, others remained present with the accused outside the house." (Underlining is ours for emphasis).
From the above portion of statement, it is evident that the story of prosecution that the appellant led to the recovery of ten grams heroin is without any substance. The search was conducted by the Anti-Narcotics Force officials by their own on the direction of Investigation Officer and admittedly the appellant remained outside the house in custody of the Anti-Narcotics officials.
11. After analyzing the relevant evidence with regard to the both set of charges, we are of the unanimous opinion that the prosecution evidence is deficient in all respects. The prosecution has badly failed to prove any nexus of the appellant with the main accused namely Amin Majid Sindhu as well as with the alleged recovery of ten grams of heroin. The perusal of impugned judgment clearly reflects that the findings of guilt were recorded on the basis of presumptions which is not permissible under the law.
12. While adverting to the contention of learned Senior Special Prosecutor with regard to the issue of delay in filing the instant appeal, we observe that the appeal was filed with delay but the same was condoned vide order dated 14th of June, 2006 and the said order was assailed by the respondent through criminal petition No.313-L of 2012 before the Honourable Supreme Court of Pakistan but the same was dismissed as withdrawn.
13. Though during the arguments, learned Senior Special Prosecutor has also referred to the previous conviction of the appellant but nothing was brought on the record to this effect during the trial. The previous conviction can only be proved in terms of Section 265-I of The Code of Criminal Procedure, 1898. The same is reproduced below for ready reference :- "265-I. Procedure in case of previous conviction. (1) In a case where, by reason of a previous conviction the accused has been charged under Section 221, sub-section (7) the Court, after finding the accused guilty of the offence charged and recording a conviction shall record the plea of the accused in relation to such part of the charge.
(2) If the accused admits that he has been previously convicted as alleged in the charge, the Court may pass a sentence upon him according to law, and if the accused does not admit that he has been previously convicted as alleged in the charge the Court may take evidence in respect of the alleged previous conviction, and shall record a finding thereon and then pass sentence upon him according to law."
14. In the light of above discussion, we hold that the prosecution has badly failed to prove its case against the appellant. The prosecution evidence suffers serious infirmities and the same was lack of any credence. The case of the prosecution is fraught with doubts and for earning the acquittal, the accused is not obliged to establish number of circumstances creating doubts but even a single circumstance, creating a reasonable doubt in the prudent mind is sufficient to extend the benefit of the same to the accused. Guidance in this respect can be sought from "MUHAMMAD ZAMAN versus THE STATE and others" (2014 SCMR 749) and "MUHAMMAD ASHRAF and others versus THE STATE and others" (PLD 2015 Lahore 1).
15. The nutshell of above discussion is that the prosecution has not been able to bring home the guilt of accused beyond any hint of doubt. Thus while extending the benefit of doubt to the appellant, we are inclined to allow the instant appeal by setting aside the judgment dated 13th of March, 1999 passed by the learned trial Court and after holding the appellant not guilty of the offence acquit him from the charge against him and his surety is also discharged.