' IKRAMULLAH KHAN, intend to dispose of the instant two Criminal Appeals bearing Nos. 187-P/2013 and 183-P/2013 filed by both the appellants against their conviction, by this single judgment as both the appeals were preferred against the same impugned judgments, whereby the appellants were convicted and sentenced under section 9-C CNSA, 1997, on trial in case FIR No, 620 dated 24- 5-2012, Police Station Bhana Mari, Peshawar to imprisonment for life and to pay fine of Rs,20,000/-
(each) and in default of payment of fine, shall undergo further SI for Six (6) months. Benefit of section 382-B, Cr.P.C. Was extended to the accused.
2. The local Police of Police Station Bhana Mari, Peshawar on prior information, arranged a barricade on Ring Road Peshawar near PAF post, the suspected car bearing registration No,RC-832, was intercepted, and on search, 15 packets of chars, were recovered concealed therein the cavity meant for placing spare wheel, in the rear side of the vehicle, which when weighed, came out as 15 kgs. Recovery memo was scribed on the venue, and samples were taken therefrom each packet, for the purpose of analysis, which were sealed in a parcel, while rest of the narcotics substances were sealed in a separate parcel.
3. Accused Sayyar Muhammad alias Speen Gul son of Rehmatullah who was found at the moment driving the vehicle and another acquitted accused Amjad Kamal son of Syed Nabi, who was sitting on the passenger seat, were taken into custody by the Police party and the complaint in shape of Murasila was penned down by the complainant SHO Rehmat Ullah, which was forwarded to the Police Station, for registration of the formal FIR through one constable Sifat Ullah belt No,1258 of the same Police Station. On receipt of Murasila it was converted, in verbatim into the formal FIR, by one Munir Khan Sub Inspector Police Station Bhana Mari.
4. The case was Investigated and during investigation, appellant-convict namely Sajjad Gul was also arrested, being the person who had allegedly hired the vehicle, from which the contraband was recovered.
5. On completion of the formal investigation, all the three accused were sent for trial before the trial Court.
6. The learned Special Judge, framed the formal charges against all the three accused and prosecution was permitted to lead its evidence, which was accordingly done. On close of the prosecution evidence, the learned trial Judge, recorded the statements of the appellants/accused along with the acquitted accused, in pursuance of the provisions contained in section 342, Cr.P.C.
7. Both the parties, through their respective learned counsel availed the opportunity of hearing and on conclusion of trial, the learned Special Judge, convicted the appellants thereunder section 9 CNSA, 1997, and sentenced every appellants for a term of imprisonment for life and a fine of Rs,20,000/- (each) and in default of payment of fine, to undergo SI for six months, however benefit of the provisions of section 382-B, Cr.P.C. Was accordingly extended to both of the appellants, while the 3rd co-accused namely Amjad Kamal was acquitted of the charges on the sole ground that he was being proved by medical board as total blind person.
8. The appellants, being aggrieved by the impugned judgment of conviction passed against them, have invoked the jurisdiction of this Court, thereunder the provisions contained in section 48 of the CNSA, 1997, read with section 410, Cr.P.C., 1898, by filling two separate appeals, bearing Nos.187- P/2013 and 183-P/2013, respectively. The State has not filed any appeal against the acquittal of the co-accused.
9. The learned counsel for the appellant in Appeal No, 183-P/2013 contended that the impugned judgment is perverse one, based on surmises and conjectures, insofar, the appellant Sajjad Gul is concerned. Further, while advancing his argument, submitted that, no evidence has been adduced against the appellant, that the appellant had any nexus whatsoever with the commission of the offence; that mere production of a forged receipt of Rent-A-Car company, was not sufficient proof which warranted to inflict capital punishment upon the appellant, prayed for acquittal of the appellant. While the learned counsel for the appellant in Criminal Appeal No,187-P/2013, contended that on the same set of evidence, the learned trial Court has acquitted the co-accused, while the role contributed to the present appellant was at par with the acquitted accused; that the prosecution has not proved its case against the appellant beyond reasonable doubt; that there exist material contradiction amongst various prosecution witnesses and the case against the appellant has not been proved safely and no capital punishment could be awarded on shaky and uncorroborated testimony of interested witnesses (Police official), while no one there from the public had been made witness to the alleged process of recovery; that the contraband had recovered therefrom the secret cavity situated in the rear side of the vehicle, whereas the appellant was a companion of the co-accused appellant in Appeal No,183/2013 and was unaware of having contraband in the car -in question; that the complainant was an interested witness, who had manipulated evidence against the appellant, requested for the acquittal of the appellant.
10. On the other hand, the learned Additional Advocate General, who made his appearance good on behalf of the State, supported the impugned judgment and contended that the impugned judgment has been passed by a competent Court of law thereafter proper appreciation of evidence on record and argued that the prosecution has proved its case by producing confidence inspiring evidence against the appellants and brought on record reliable and unshakable evidence.
11. We heard all the learned counsel for appellants as well as for the State and scrupulously considered their arguments in view of the evidence on record.
12. The record predicts that prosecution in order to prove its case against the appellants recorded the statements of as much as 9 witnesses before the learned trial Court.
13. Prior to dilate upon the merit of the case, it would be not out of context to give a precise view of the testimony of important prosecution witnesses, produced during trial against the appellants.
' PW-1. Abdul Ghafoor IHC, Police Station Bhana Mari. Marginal witness to the recovery memo.
Exh.PW-1/1 vide which the I.O. Recovered and took into possession the registration book bearing No, RC-832/Islamabad in the name of Amjad Ali P-1 and on rent a car receipt P-2 in the name of accused Sajid Gul, recovered from the dash board of the said motor car.
' PW-2 Munir Khan, SL On receipt of murasila incorporated the contents of murasila in the shape of FIR which was Exh.PA-1.
' PW-3 Rakhmat Ullah Khan, SHO. Deposed that in routine gasht in the Illaqa while one informer give me information that huge quantity of narcotics will be smuggled through motor car registration No,RC-832/Islamabad Corolla white color from Tribal Territory to the down areas of the country. On this information he along with Sifatullah 1258, Fazal Illahi, 4616 others near Ring Road PP PAF made barricade, meanwhile the car registration No,832 white color coming from Pishtakhara side. They signaled it for stopping but the driver increased the speed of vehicle but they chased the vehicle through official vehicle. After chasing the vehicle they arrested the driver of the same car and also another person who was sitting in front seat. During the search they recovered and took into possession from the Diggi beneath the carpet charas (P-3) which came out on weighment each packet consist of 1/1 KG, total 15 KGs. They took into possession charas and vehicle in question and separate 5/5 grams from each packet and sealed into parcel Nos.1 to 15 and the remaining quantity was sealed in parcel No,16 and affixed 3 seals of monogram BM. The driver disclosed his name Sayyar alias Spin Gul son of Rehmat Ullah and another one who was sitting on front seat of vehicle disclosed his name Amjad Kamal. He prepared the recovery memo which has Exh.PW-3/1 in the presence of marginal witnesses and the same was signed by the witness on the spot. He also drafted the murasila which was Exh.PA/1. He sent the murasila for registration of FIR to the Police Station through Constable Sifat Ullah 1258. He also prepared the card of arrest of accused which is Exh.PW-3/2 and Exh.PW-3/3, respectively. He also drafted application Exh.PW-3/4 through which he sent the parcel Nos.1 to 15 to the Forensic Science Laboratory. The site plan was also prepared on his pointation by I.O. After completion of investigation he submitted complete challan against accused while challan under section 512, Cr.P.C. Against accused Sajid Gul.
' PW-4. Fazal Illahi No,4616. Marginal witness of recovery memo deposed that vide recovery memo complainant took into possession 15 KGs. Charas from the Diggi beneath the carpet from the place of stupny of car registration No,832 RC Islamabad, engine No,4309299, Chassis No,IVZE 140- 2089448, model 2011, white color, 5/5 grams was separated for Forensic Science Laboratory and sealed the same into parcel Nos.1 to 15 while the remaining in parcel No, 16 and affixed three seals with monogram of BM, in my presence.
' PW-5 Sahib Gul son of Akbar Gul aged about 40/41 years. Deposed that he was the owner of motor car No,RC-832/ Islamabad. The same was purchased by him through a stamp deed/bargain receipt from Amjad Ali. The car in question is a leased vehicle of the bank and he used to pay Rs,30,000/- per month as installment. He had given his said motor car to Madina Rent a car, Basharat Market Hayatabad who used to ply the same on rent. He came to know that the Police had recovered charas from his motor car and had taken the same into possession. He had got no concern whatsoever with the trafficking of charas. PW-6 Yousaf Shah. No,841. Deposed that he was posted as DFC in Police Station Bhana Mari, Peshawar and was entrusted with warrant under section 204, Cr.P.C., 1898 against accused Sajid Gul son of Shahzad Gul r/o Manga Mohallah Piran District Mardan. Warrant was Exh.PW-6/1 and his report was Exh.PW-6/2. He was entrusted with proclamation notice under section 87 Cr.P.C. Against accused Sajid Gul son of Shahzad Gul r/o Manga Mohallah Piran District Mardan. The proclamation notice and his report was Exh.PW-6/3.
Today he saw his report on warrants and proclamation notice which were in his hand writing and correctly bear his signatures. He had made every effort to arrest the absconding accused but accused intentionally avoiding his lawful arrest and there was no hope of his arrest in near future.
PW-7 Abdul Ghaffar SHO, Police Station Bhana Mari, Peshawar, deposed that he submitted supplementary challan against accused Sajid Gul which was Exh.PW-7/1. He bad seen the same which was correct and correctly bears his signature. PW-8 Arif Ullah son of Muhammad Amin r/o Lakarai Peshawar. States that he and Rizwan were partners in Madina Rent-A-Car, situated at Basharat market, Hayatabad, Peshawar. Motor car No,RC 832 Islamabad was owned by Sahib Gul son of Akbar Gul, r/o Mangah and he had given the same to them to ply the same on rent. On 2-5- 2012, he gave the said motor car to Sajid Gul son of Shahzad Gul r/o Mangah on rent and the receipt already exhibited as PW-1/2 of the same was available on their record. He had come to know that the Police had recoverea charas from the said car. He had seen the receipt which had correctly bears his signature. PW-9 Farooq Khan CIO, Police Station Town, Peshawar. Deposed that during the days of occurrence, he was posted as SI/CIO, Police Station Bhana Mari. After the registration of FIR, the case was handed over to him for investigation. He visited the spot and prepared the site plan, which was Exh.PB. After the thorough search of the Car No,RC 832 Islamabad, he recovered one Rent receipt which had already exhibited Exh.PW-1/2, one copy of registration book which had already Exh.PW-1/3. In this respect he prepared the recovery memo which had already exhibited Exh.PW-1/1 in the presence of marginal witnesses. On production both the accused before JMIC one day custody was granted. After interrogation both the accused were sent to judicial lock up. He also recorded the statement of witnesses namely Rizwan, Arifullah and Sahib Gul under section 164, Cr.P.C. During the course of investigation one Sajid Gul was also found accused. Warrant under sections 204, Cr.P.C. And 87 Cr.P.C. Against accused Sajid Gul was obtained. After the completion of investigation the same was handed over to SHO for further proceedings. After the recalling of BBA of accused Sajid Gul, he produced him before JMIC for obtaining 7 days' custody, but the application was turned down and the accused was sent to the judicial lockup. He recorded the statement of accused Sajid Gul and P. Ws. Also. He also annexed photocopy of stamp paper which was produced by one witness Sahib Gul who was owner of the vehicle. After completion of investigation, the same was handed over to SHO for further proceedings.
14. When, going through and thereafter scanning the record, it has been admitted by the appellant in a Appeal No,187--P/2013 namely Sayyar that at the time of interception of the car, he was taken into custody present there in the car. It was also admitted that the contraband was recovered therefrom the car in question.
15. The only plea, taken by the appellant Sayyar during trial as well as before this Court was that the local Police got free the real culprit appellant Sajid Gul and dragged him in the case, and that the car wherefrom the contraband was recovered had hired on rent by the appellant Sajid Gul. A friend of the appellant Sajid. Gul, on his demand put some spices in the rear dugs of the car, which later on was find as contraband, by the local Police on search of the car.
16. It is settled principle of law that accused can takes as many ground as he could during trial, even though inconsistent too, however, disproof of such pleas, could not adversely effect the case of the accused, but, when an accused desired thereof the Court to believe in and give a favourable judgment based on the contention put forward by him, in such situation, burden shift to the accused to prove the plea raised by him, through some conceivable evidence.
17. What would be the case, but the general criminal law, never absolve the prosecution therefrom its primarily responsibility to prove its case against the accused beyond reasonable doubt but the provisions contained in section 29 of the CNSA, 1997, is a deviation therefrom the general law.
18. The provisions contained in Article 117 of the Qanun-e-Shahadat Order, 1984, place burden of proof on the person, who desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
19. Any person, being charge for the commission of an offence and if such an accused, take a particular plea and desires that such plea of innocence be accepted by the Court, then in such state of affairs, the accused shall prove, the plea, which he has raised.
20. The provisions contained in Article 119 of the Qanun-e-Shahadat Order, 1984, reads as:-- "The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless. It is provided by any law that the proof of that fact shall lie on any particular person".
21. Though, an accused not to be expected to prove the defence plea in the manner the prosecution has to prove its case but the accused should bring some conceivable evidence on record, which should substantiate its plea of defence. Reliance be placed on case of "Sikandar Hayat v. The State" (2003 PCrLJ 97).
22. The appellants Sayyar, in order to prove its innocence, tried to shift the charges and fix responsibility on the shoulder of the co-appellant Sajid Gul, such statements/plea, taken by an accused needs deep appreciation of evidence and utmost care shall be taken for its acceptance.
Bald and uncorroborated statement recorded thereunder section 342, Cr.PC., 1898, could not be a good ground for acquittal of an accused involved in heinous kind of offences.
23. The plea taken by the appellant that the other appellant Sajid Gul was got free by the Police and he was made an scape goat, is not attractive to a prudent mind as there is no any an iota of evidence that either the co-appellant was previously known to the Police or has released the appellant on any other consideration in this regard. Strong probative and reliable evidence is required to accept a statement of an accused, which would not only effect acquittal of him but has the repercussion of convicting another accused too.
24. It is settled law that if a person alleges a fact and which is specially within his knowledge, the burden of proving that fact is upon him. Reliance be placed on the case of "Mian Muhammad Nawaz Sharif and others v. The State and others" (PLD 2002 Karachi, 152) .
25. As the appellant has taken a special plea, in his statement recorded under section 342, Cr.PC., 1898, he was bound to prove the same by adducing some cogent and convincing evidence and could not shift this burden to the prosecution or the other co- accused.
26. Any ground of innocence, available to an accused, shall be taken at the earliest stage. Any such plea, not taken at the earliest available opportunity, shall not be accepted without great care and caution, when taken at the last stage of conclusion of trial, such stance, of the accused shall be scrutinized with utmost care in the light of all other available evidence on record.
27. A bald and uncorroborated plea of an accused, would not help him to save himself from the responsibility imposed upon him by the law, in case he had taken a special plea of innocence.
Reliance be placed on the case "Kashif Siddique and 2 others v. The State" (2008 PCr.LJ 1039).
28. The appellants are booked and tried for the offence thereunder the provisions contained in section 9 of CNSA, 1997, which is a special law has its own procedure.
29. The provisions contained in section 29 of the CNSA, 1997 read as;-- ' Section 29. Presumption from possession of illicit articles.-In trials under this Act, it may be presumed, unless and until the contrary is proved that the accused has committed an offence under this Act in respect of--
(a) any narcotic drug, psychotropic substance or controlled substance;
(b) any cannabis, coca or opium poppy plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the production or manufacture of narcotic drug, psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance or controlled substance has been produced or manufactured, for the possession of which he fails to account satisfactorily.
30. The provisions ibid of the CNSA, 1997 provides that it would be presumed that the accused has committed the offence unless accused succeeded in rebutting such presumption through reasonable evidence. Reliance be placed on case of "Sabir Khan v. The State" (2007 YLR 904).
31. However, the prosecution shall not be absolved from its primarily duty to prove its case against the accused beyond doubt, but when the prosecution discharged its this duty, then the accused charged under CNSA, 1997, shall bring on record some susceptible evidence to substantiate its plea of innocence. Reliance be placed on the cases "Fida Muhammad v. State" (2006 PCr.LJ 316) and "Rahim Gul v. State" (2011 PCr. LJ 1769).
32. As the appellant was arrested red handed, driving the car, from which, the contraband was recovered, which has been proved by the prosecution, against the appellant (Sayyar) beyond any shadow of doubt, could not be washed out by simple and bald statement of the appellant that he was innocent.
33. The ground taken by the learned counsel, that the recovery had been made on the general road but no one from the public had associated with the process of search, carries no weight as in accordance with the provisions contained in section 25 of the CNSA, 1997, the application of section 103, Cr.PC., 1898 is specifically excluded there form all kind of searches and arrest conducted under the provisions of CNSA, 1997. Reliance be placed on case "Zafar v. State" (2008 SCM R 1254).
34. The prosecution, has proved the recovery of the narcotics, from the car, which was in immediate possession of the appellant-convict when it was intercepted by the Police, while the appellant was on the driving sent, with another acquitted accused, who was blind one, and the narcotics were not so concealed in such a manner, whereas an ordinary man, a driver in case, not owner of the car, could not detect it by ordinary prudence, but in the present circumstances, it was hidden just beneath the carpet where usually spare wheel is kept, could not give even a remote inference that the appellant-convict was not in knowledge of the narcotics.
35. The narcotics were recovered therefrom the conscious possession of the convict-appellant which had been proved by the prosecution beyond any reasonable doubt through cogent, reliable and convincing evidence.
36. No mala fide or ill will of the Police official, existed against the convict. Police witnesses in such like circumstances were as good witnesses as any other private person. Reliance be placed on case of "Muhammad Mushtaq v. The State" (2008 SCM R 742).
37. Keeping in view the reasons given hereinabove, no interference is warranted in the impugned judgment in so far as the conviction of the appellant in Appeal No,187-P/2013 namely Sayyar son of Rehmat Ullah is concerned, hence Appeal No, 187-P/2013 is accordingly dismissed and the conviction and sentence inflicted upon convict appellant Sayyar is upheld.
38. Insofar as the appellant in a Appeal No,183-P/2013 is concerned the said appellant has been charged in the instant offence, during investigation of the case, on the statement of PW-8.
39. PW-8 was the person, stated to be doing the business of "Rent-A-Car" who recorded his statement under section 161, Cr.PC., 1898 and statement under section 164, Cr.PC., 1898 on 28-5- 2012, where after the appellant-convict was arrested, such belated statements creates doubts, and possibility of deliberation and fabrication could not be ruled out.
40. The receipt recovered therefrom the dashboard of the car, carries a date 2-5-2012 while the car was apprehended on 24-5-2012; no cogent evidence in this regard had been adduced by the prosecution, that the car had not been changed hand during this period.
41. It is not proved by the prosecution, that appellant had paid any amount in advance as usual to the PW- 8 to hire the car in question.
42. Even the proposed owner, PW-5 has not been spoken a single word that how the other PW-8 makes payment to him..
43. The receipt does not carry the name of the appellant. It has been issued in the name of one Shehzad, which had not been produced as a witness or had made an accused in the case.
44. There is no mention of the duration, for which the car was allegedly hired out by PI- 8 to appellant Sajid Gul.
45. The statement recorded under section 161, Cr.PC., 1898, by either accused or any other prosecution witness carries no evidentiary value and could not be proved against co-accused, being inadmissible in evidence. However, there under the provisions contained in Article 43 of the Qanun-e-Shahadat Order, 1984, which envisaged that when more person than one are being tried jointly for the same offence, and a confession made by one of such person was proved, such confession may be taken into consideration against the co-accused, being tried jointly for the same offence, as circumstantial evidence.
46. But in this case, the co-accused has not made any confession, a bald uncorroborated statement of the co-accused, recorded in course of proceeding under section 342, Cr.PC., 1898 could not be used against the appellant is conclusive proof, against him.
47. The statement of PW-2 is a circumstance, which shall not be accepted as substantive evidence without great caution, for an offence, which carries a capital punishment.
48. The prosecution had not discharged its burden to prove the case against the appellant in Appeal No,183-P/2013 through confidence inspiring and reliable evidence beyond reasonable doubt.
49. It is general principle of law that a single dent in the prosecution case would be a sufficient ground for acquittal of an accused.
50. It is by now settled principle of law that the standard of proof against an accused facing charges under offence, carrying capital punishment shall be above board, cogent and reliable too.
No person shall be held responsible and be convicted on uncorroborated circumstantial/shaky evidence.
51. The prosecution has not succeeded, in bring home the guilt of the accused, beyond reasonable doubt and in such circumstances, the appellant- convict namely Sajjad Gul deserve to be extended the benefit of doubt.
52. Therefore, keeping in view the reasons given hereinabove, the Appeal No,183/2013 filed by appellant Sajid Gul is allowed and the conviction and sentence awarded to him through the impugned judgment is accordingly set aside. He be released forthwith from the jail if not required in any other criminal case.
53. These were the reasons for our short order of the even date.
54. Appeal No, 183/2013 is accepted while Appeal No,187-P/2013 is dismissed.