MIRZA VIQAS RAUF, J.---This single judgment shall decide the instant appeal as well as Criminal Appeal No.167/1999, as both these appeals have arisen from the judgment dated 15.02.1999 passed by the learned Special Judge, Control of Narcotic Substances, involving similar questions of facts and law.
2. The appellants in both these appeals have challenged their conviction and sentence awarded to them vide judgment dated 15.02.1999 in case FIR No.7 of 1997 dated 7th of March, 1997 under sections 9(c) and 15 of The Control of Narcotic Substances Ordinance, 1997, read with Articles 3/4 of The Prohibition (Enforcement of Hadd) Order IV of 1979, registered at Police Station, Anti-Narcotics Force, Lahore whereby they were convicted as under:- (1)
Mst. Irshad Begum alias ShadanTwenty five (25) years rigorous imprisonment along with fine of Rs.20,00,000/- and in default thereof to further undergo six months rigorous imprisonment.
(2) Mst. Nasim Akhtar Twenty five (25) years rigorous imprisonment along with fine of Rs.1,00,000/- and in default thereof to further undergo one month rigorous imprisonment.
(3) Mst. Munizza Twenty five (25) years' rigorous imprisonment along with fine of Rs.1,00,000/- and in default thereof to further undergo one month' rigorous imprisonment.
(4) Mst. Safia Bibi Seven (07) years rigorous imprisonment. Benefit of section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to her.
(5) Mst. Shahnaz alias NajoSeven (07) years' rigorous imprisonment. Benefit of section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to her.
(6) Mst. Surraya Bibi Seven (07) years' rigorous imprisonment. Benefit of section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to her.
(7) Muhammad JavedTwenty five (25) years' rigorous imprisonment along with fine of Rs.20,00,000/- and in default thereof to further undergo six months rigorous imprisonment.
(8) Ehsanullah Twenty five (25) years' rigorous imprisonment along with fine of Rs.1,00,000/- and in default thereof to further undergo one month rigorous imprisonment.
(9) Muhammad Anwaar AkhtarTwenty five (25) years' rigorous imprisonment along with fine of Rs.1,00,000/- and in default thereof to further undergo one month rigorous imprisonment.
(10) Aftab alias Guddu Seven (07) years' rigorous imprisonment. Benefit of section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to him.
(11) Mst. Khushnood alias RoobiSeven (07) years' rigorous imprisonment. Benefit of section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to her.
(12) Irshad Begum Seven (07) years' rigorous imprisonment. Benefit of section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to her.
(13) Mst. Mukhtaran Bibi alias BushraSeven (07) years' rigorour imprisonment. Benefit of section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to her.
3. Precisely the facts necessary for adjudication of instant appeal are that Sajjad Ahmad Javed Bhatti, Director Intelligence/Operation, Deputy Inspector General of Police vide his letter dated 3rd of March, 1997 sent the report dated 8th of January, 1997 by Ashfaq Ullah Khan, Consulate of Pakistan Jaddha. Ashfaq Ullah Khan Consul (Welfare) Consulate General of Pakistan, Jaddha in the report recorded that he alongwith Arabic interpreter and dealing Assistant visited Buriman/General Jail, Jaddah and met the ladies detenues held for smuggling of heroin into the Kingdom of Saudi Arabia out of whom Miss Shamim Akhtar aged eighteen years gave the reasonable detail that they came to Saudi Arabia from Lahore by Saudi Flight on 5th of November, 1996 and they are residents of Gujranwala. They were wearing the dresses gifted by her fiance Najo who. Lived in Samanabad, Gujranwala. Ahmad Jalil Raja Investigating Officer conducted the preliminary inquiry and found Shahzad Aslam alias Mutlab, his wife Mst. Irshad Begum alias Shadan, her brother Mohammad Javed, her sister Mst. Safia Bibi, Mst. Azra Bibi wife of Mohammad Anwar and Mst. Najma Bibi wife of Adrees, involved in drug trafficking by exploiting the poverty of women. The gang used to prepare I.D cards and fake passports through Syed Asif Abbas Rizvi L.M.O. This event was reduced into complaint Exhibit-PFF whereupon formal FIR No.7 dated 07.03.1997 under sections 9(c) and 15 of The Control of Narcotic Substances Ordinance, 1997, read with Articles 3/4' of The Prohibition (Enforcement of Hadd) Order of 1979, was registered at Police Station, Anti-Narcotics Force, Lahore.
4. After completion of investigation, the appellants along with their co-accused were sent to face the trial before the learned Special Judge Control of Narcotic Substances, Lahore. The learned trial Court while taking cognizance framed the charge against all the accused under sections 6, 7, 8, 9 and 15 of The Control of Narcotic Substances Act (XXV of 1997) to which all pleaded not guilty and claimed trial.
5. In order to prove the charge, the prosecution examined as many as twenty one witnesses. Miraj Anees, Assistant Deputy Director and Ch. Muhammad Ismail, Magistrate, who recorded the statements of accused under section 164 of The Code of Criminal Procedure, 1898 were examined as PW-1 and PW-19 respectively. The prosecution examined Mst. Saima Adrees alias Gulshan as PW2 and Mst. Nargas Adrees as PW3. Faqir Sain was produced as PW4 who sent his wife Mst.
Shahnaz Bibi for Umra on the offer of Mst. Irshad Begum alias Shadan. Sh. Inamuil Haq PW5, Abdul Hameed PW6, A'sif Abbas PW7, Muhammad Aslam Bhatti PW8, Nasir Abbas PW11 and Abdul Hafeez PW12 were examined and they deposed that Mst. Irshad Begum alias Shadan and her husband procured documents of I. D. Cards and passports from them. Sahib Khan SI PW9 was witness of recovery of few articles by investigating officer. Raja Khalid Mehmood SI was produced as PW10, he was also member of raiding party and witnessed the recovery memo. Nasir Abbas, Deputy Director was examined as PW11 who received a letter dated 26.03.1997. Sh. Abdul Hafeez and Muhammad Ikram appeared in the witness box as PW12 and PW13, they are the residents of same vicinity of accused persons. Bau Latif PW15 is the witness who borrowed compressor machine from Mst.
Irshad Begum accused. Muhammad Sarwar Butta is a recovery witness who appeared in the witness box as PW16. Mst. Allah Rakhi as well as her two daughters and Mst. Inayat Bibi alongwith her daughter performed UMRAH on the expense of accused Mst. Irshad Begum alias Shadan. They were examined as PW17 and PW18, respectively. Major Abdul Rab Deputy Director Anti-Narcotics Force appeared as PW20. He received different letters containing the information about drug' trafficking. Ahmad Jalil Raja Group Leader, being Investigating Officer, was produced as PW21. Learned Special Public Prosecutor after giving up PWs Mst. Nasra Bibi, Ashiaq Hussain, Mst. Shabana alias Bushra Rani, Khalida Zarin, Captain Noor-ud-Din, Rashed Mehmood, Mst. Nighat Tehseen, Mst. Khalida Zareen, Mohammad Ilyas, Mohammad Riaz, Mohammad Boota, Rana Nawaz Bandial, Muhammad Ashraf, Mohammad Zafar Ullah, Rana Faizaullah, Lt. Col. Muhammad Latif Joint Director Operation, Captain Noor-ud-Din, Syed Rahat Ali Shah, Khatid Ali Samari D.L.0 and - Ashfaq Ullah Khan Counsel Welfare Pakistan Embassy Jaddah, being unnecessary, closed the prosecution evidence.
6. After closure of prosecution evidence, the statements of accused were recorded under section 342 of The Code of Criminal Procedure, 1898 whereby, they refuted the prosecution evidence, however, no one opted either to appear in terms of section 340(2) of The Code of Criminal Procedure, 1898 or to lead any defense evidence. The learned trial Court, after completion of evidence and hearing both the sides convicted the appellants as well as their co-accused as already mentioned in paragraph No.2 above.
7. Ch. Abdul Latif, Advocate, learned counsel for the appellants in Criminal Appeal No.62/1999 submitted that the conviction recorded by the learned trial Court is not sustainable on multiple grounds. He added that the FIR itself cannot sustain against the appellants. Learned counsel contended that there is no evidence against the appellants that they have ever participated in any manner in the alleged offence. Learned counsel next contended that the prosecution evidence is deficient on all prospective and the appellants have been convicted on the basis of presumptions and suppositions. Learned counsel argued that the appellants can neither be charged nor convicted under The Control of Narcotic Substances Act, 1997, as the same was not in field at the relevant time. He maintained that the conviction of the appellants was recorded on the statements of persons, who themselves were accused. Mr. Aftab Ahmad Bajwa, Advocate appearing on behalf of appellants in criminal appeal No.167/1999, while assailing the conviction of his clients argued that the judgment under challenge cannot sustain in the eye of law. He added that even iota of evidence is not available against the appellants, justifying their conviction.
8. Conversely learned special prosecutor representing the Anti-Narcotics Force defended the judgment of the learned trial Court. He submitted that the appellants, have committed a heinous offence and they did not deserve any leniency. Learned prosecutor contended that overwhelming evidence is available on the record to justify the conviction of the appellants and the impugned judgment is unexceptionable.
9. We have heard the learned counsel for the appellants as well as learned special prosecutor and perused the record with their assistance.
10. We have observed that it is perhaps the unique case of its nature registered under. The Control of Narcotic Substances Ordinance, 1997. ' In this case admittedly no direct recovery of any contraband is effected from the accused however, they were charged on account of facilitating, counseling, attempting and abetting the transportation of heroin to Saudi Arabia. In this background the substance of charge becomes of significance importance, which is reproduced below:- "That you all by your individual and collective acts formed a gang to facilitate, counsel, attempt and associate each other and abetted/smuggled Heroin weighing 7.688 Kgs to Saudi Arabia which was recovered there from your associates and the quantity which you succeeded to smuggle was weighing more than 60/70 Kgs of Heroin, which fact came on surface when from Saudi Arabia letters No.CWJ/1/96/26 dated 8 Jan. 1997; I/1/96/CWJ, dated 28.6.1997, No.260 dated 28-2-98 and 7(37)ANF/Int/98 Dt. 14-4-1998 were received, thereby you all jointly, severally with connivance of each other committed offences under sections 6, 7, 8, 9 and 15 of the Control of Narcotic Substances Act, 1997, which is within the cognizance of this Court."
It is evident from the above that the prosecution was set into motion on the basis of information received from Saudi Arabia vide letter No.CWJ/1/96 /26 dated 8th January, 1997, followed by other letters. The charge itself is evident that the prosecution is not sure about the actual quantity of recovered substance. There is yet another important aspect that the charge was framed under the provisions of The Control of Narcotic Substances Act, 1997 which came into being on 11th July, 1997 as Act No.XXV of 1997. The instant case was registered on 07.03.1997 and at that time The Control of Narcotic Substances Ordinance (XLIII of 1997) was in field, which was later on repealed by virtue of section 78 of The Control of Narcotic Substances Act (XXV of 1997) however the proceedings under the erstwhile ordinance were was also saved in terms of subsection (2) of section 78 of the Act ibid, which reads as under:- "78. Repeal and saving: (1). --- (2). Notwithstanding the repeal of any law under subsection (1), the repeal shall not, except as otherwise provided in this Act,-- (a). Affect the previous law or anything duly done or suffered there under; (b). Affect any right, privilege, obligation or liability acquired, accrued under such law; (c). Affect any penalty, forfeiture or punishment incurred in respect of any offence committed against such law; (d). Affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and (e). Affect any such investigation, legal proceedings or remedy may be instituted, continued enforced or any such penalty, forfeiture punishment which may be imposed, by the Courts or authorities competent to investigate, try an offence under such law if the said law had not been repealed."
The framing of charge and convicting the appellants under the penal provisions of The Control of Narcotic Substances Act (XXV of 1997) by the learned trial court is unwarranted as the criminal law cannot be made operative retrospectively. We have examined section 9 of The Control of The Narcotic Substances Ordinance (XLIII of 1997). The same though prescribes somewhat stringent and harsh sentence under its clause (c) in case of heroin but the same will not effect the basic principle of criminal dispensation of justice. Reliance in this respect can be placed on "Muhammad Yousaf v. Muhammad Yousaf and another" (2014 PCr.LJ 1517) and "Muhammad Afzal, Ex- Assistant Sub-Inspector v. Senior Superintendent of Police, Operation, Lahore and 4 others" (PLD 2005 Lahore 377).
11. We while adverting to the merits of the case noticed that the learned trial court, while recording the conviction of the appellants was persuaded with the statements of PW-5, PW-6, PW-11 and PW-12 as well as the statements of accused records under section 164 of The Code of Criminal Procedure, 1898, but we are inclined to observe that the learned Special Judge, while doing so, has ignored certain material aspects which renders his judgment nullity in the eyes of law. The first and foremost important thing is that the prosecution in the instant case was started on the basis of an information received from Saudi Arabia but neither any document nor the informant who disclosed the information was produced in evidence. The prosecution in this regard tendered letter dated 03 March 1997 as Exhibit-PE signed by Sajj ad Ahmed Javed Bhatti, Directer Intelligence/operation Deputy Inspector General of Police addressed to the Regional Director Anti- Narcotics Force, Lahore, transmitting a self-explanatory report received from the Pakistan Consulate General Jaddah. The said report is a photocopy. The other documents which were tendered in this regard were also photocopies and the same are available on record as Exhibit- PEE/1 to Exhibit-PEE/7. The said documents are even not admissible in evidence. The prosecution has never endeavored to prove the contents of said documents as per mode provided under Article 75 of The Qanun-e-Shahadat Ordei, 1984. The said documents even did not qualify the conditions of a foreign document as laid down in Article 89(5) of The Qanun-e-Shahadat Order, 1984. All these documents were tendered in the statement of Major Abdul Rab Deputy Director (PW20). He also tendered in evidence letter dated 26.02.1998 (Exhibit-PEE/8/1-6) issued by Royal Embassy of Saudi Arabia, Islamabad and reports Exhibit-PEE/9/1-23. PW-20 admitted in his cross- examination that though he received the information about the occurrence on 08.01.1997 from Consulate General Jeddah through headquarters but during his preliminary investigation which continued upto 3rd March, 1997 he could not get any proof in this case. He deposed that on receipt of letter dated 03rd March, 1997 he directed the concerned to register the case. It is evident that letter (Exhibit-PEE/8/1-6) was received much after registration of the instant case. This witness further admitted that the statements of accused were recorded in Saudi Arabia in Arabic language and we while having difficulty to investigate the matter on the basis of statements in Arabic language put this difficulty before Saudi Embassy whereupon we received English version of these statements by Saudi Embassy at Islamabad. The reports Exhibit-PEE-9/1-23 are also in Arabic language. PW-20 admitted that he cannot read these reports. The statement is also discrepant about the total number of these reports. Even any interpreter was not examined to prove the contents of these reports. All the relevant persons were kept behind the curtons which creates a negative presumption against the prosecution in terms of Article 129(g) of The Qanun-e-Shahadat Order, 1984.
12. The prosecution examined Mst. Saima Iddress and Mst. Nargas as PW-2 and PW-3 respectively who statedly were the ladies arrested in Saudi Arabia, while transporting heroin in their private parts.. The prosecution has failed to bring on record any tangible evidence showing that the said witnesses were actually arrested on the said charges in Saudi Arabia. None of these witnesses implicated any of the appellants that they have ever inserted any material in the private parts of their body. Though their statements under section 164 of The Code of Criminal Procedure, 1898, were recorded but those are full of legal infirmities and cannot be made basis for recording of conviction of accused. Their statements clearly suggest that the same were even not recorded voluntarily and with free will. The same is almost the position of other private witnesses produced in this regard. Reliance in this respect can be placed on "Bagh Ali v. Muhammad Anwar and another" (1983 SCMR 1292).
13. There is yet another important aspect that Sh. Inamul Haq (PW-5), Abdul Hameed (PW-7) and Muhammad Aslam Bhatti (PW-8) were initially arrayed as an accused but strangely enough they were later on transposed as witnesses without adverting to the legal mode provided under Section 337 of The Code of Criminal Procedure, 1898. One of the prosecution witnesses namely Muhammad Ikram (PW-13) resiled and he was ultimately declared as hostile.
14. The instant case entirely hinges upon the alleged recovery of heroin effected in Saudi Arabia, which is a foreign country. The Control of Narcotic Substances Ordinance (XLIII of 1997) provides a mechanism in its chapter IX for seeking international cooperation. By virtueof section 62 of the said Ordinance it is the Federal Government or an officer authorized by the Federal Government in terms a subsection (3) of section 61 who is competent to make a request to the Foreign state for mutual legal assistance in respect of matters enumerated therein. Section 61 is reproduced below for convenience and ready reference:- "62. Mutual legal assistance reguests by Pakistan.---(1) The , Federal Government or an officer authorized by the Federal Government in subsection (3) of section 61 may request the foreign State to-
(a) have evidence taken, or documents or other articles produced;
(b) obtain and execute search warrants or other lawful instruments authorizing a search for things relevant to investigations or proceedings in Pakistan believed to be located in that State, and if found, seize them;
(c) freeze assets the subject of actions or orders under subsection (2) of section 37 by whatever processes are lawfully available in that State, to the extent to which the assets are believed on reasonable grounds to be located in that State;
(d) confiscate articles the subject of orders under subsection (2) of section 33 and forfeit assets the subject of orders under subsection (2) of section 39 to the extent to which the articles or assets, as the case may be, are believed to be located in that State.
(e) transmit to Pakistan any such evidence, documents, things, articles, assets or proceeds realized from the disposal of such articles or assets; and
(f) transfer in custody to Pakistan a person detained in the foreign State who consents to assist Pakistan in the relevant investigation or proceedings."
It is manifest from the record that the above provision have not been complied with while launching the prosecution against the appellants.
15. There is no cavil that the accused can only be punished for contravention of sections 6, 7 and 8 under section 9 of The Ordinance (XLIII 1997) on the basis of quantity of narcotic drug, psychotropic substance or controlled substance but we have noticed that neither the A prosecution nor the learned trial Court was sure about the actual quantity of alleged recovered substance on the basis of which the culpability of the appellants was determined. As already observed that while framing the charge against the appellants, the learned trial court mentioned the alleged substance as 7.688 kilogram and in toto as 60/70 kgs, but while recording the statement of appellant Mst. Irshad Begum alias Shadan, she was put only 4.5 kg heroin whereas, to Nasim Akhtar appellant it was shown as 2.5 kg, however, while recording their conviction the learned trial Court in para 37 of its judgment determined the same over six kilograms and in toto it was calculated as 62 kilograms.
This aspect clearly shows that the prosecution has even badly failed to prove the exact quantity of alleged recovered substance. The punishment under section 9 of The Control of Narcotic Substances Ordinance (XLIII 1997) cannot be awarded on the basis of assumptions and presumptions.
16. We have also noticed that none of the documents or reports tendered in evidence were even put to accused in their statements, under section 342 of The Code of Criminal Procedure, 1898. The alleged statements of the witnesses and the accused recorded under section 164 of The Code ibid were also not placed before the appellants when they were examined under section 342 of The Code of Criminal Procedure, 1898. It is well settled principle of law by now that no incriminating material can be used against the accused unless it is specifically put to him during his statement under section 342 of The Code of Criminal Procedure, 1898. The purpose behind this principle is that the accused must be aware of all the material evidence which is to be used against him. When the accused are not confronted with the documents as well as the reports tendered in evidence, they will not be in a position to refute the same properly. This lapse on the part of prosecution is fatal and it goes to the root of the prosecution case. The recording of statement of accused under section 342 of The Code of Criminal Procedure, 1898 is not a mere formality rather its primary object is to afford him opportunity of explaining the circumstances which are tending to incriminate and likely to influence the mind of the Judge in arriving at a conclusion adverse to him.
Reliance in this regard can be placed on "Munir Ahmed alias Munni v. The State" (2001 SCMR 56) and "Asif Ali Zardari and ahother v. The State" (PLD 2001 Supreme Court 568) and"Ashraf and 4 others v. The State" (2004 PCr.LJ 42).
17. There are serious discrepancies in the evidence of the material witnesses which cannot be ignored. Though there is a slight difference in the manner and standard of proof in the cases registered under The Control of Narcotic Substances Act, 1997 but the prosecution is always bound to discharge the initial onus of proof. It is now well settled principle of law that in every criminal case, burden to prove the guilt of the accused always lies on the prosecution. Though in terms of section 29 of The Control of Narcotic Substances Act, 1997, some depart to this general principle was introduced but even in presence of said provision of law, the prosecution cannot be absolved from its initial liability to discharge the onus of proof. The initial onus of proof always lies upon the prosecution and when once it is discharged, then the accused would be burdened to prove the contrary in terms of principles laid down in section 29 of The Control of Narcotic Substances Act, 1997. The prosecution has badly failed to bring on record any cogent evidence to prove the guilt of the accused. The case of the prosecution is fraught with doubts and for earning the relief of acquittal the accused person 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 doubt to the accused. In the light of above noted infirmities, we are inclined to observe that the prosecution has badly failed to bring home guilt of the accused. The prosecution case suffers coherent defects and the evidence is full of doubts. Guidance in this respect can be sought from "Muhammad Zaman v. The State and others" (2014 SCMR 749) and "Muhammad Ashraf and others v. The State and others" (PLD 2015 Lahore 1).
18. For what has been discussed above, we are persuaded to hold that the conviction recorded by the learned Judge Special Court Control of Narcotic Substances, Lahore in the circumstances is not sustainable. We thus, while allowing these appeals set aside the judgment dated 15th of February, 1999 and acquit the appellants from the charge against them, consequently their bail bonds and sureties are also discharged.