MIRZA VIQAS RAUF, J. This appeal in terms of Section 48 of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as "Act") arises out of judgment dated 05.04.2019, handed down by the learned Additional Sessions Judge/Judge Special Court CNS, Rawalpindi, whereby he while proceeding with the trial of case F.I.R.No.607, dated 03.10.2017, offence under Section 9(c) of the "Act" registered at Police Station Naseerabad, adjudged the appellant guilty of the offence and sentenced him to imprisonment for life with fine of Rs.3,00,000/- and in default whereof simple imprisonment for one year and six months. Benefit of Section 382-B of the Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr.P.C") was, however, extended to the appellant.
2. Prosecution story in this case as gleaned from the facts is that on 03.10.2017, a police contingent under the supervision of Allah Yar S.I (PW.1) was present at police picket Tarnol Fateh Jang Interchange. At about 05:00 p.m., a vehicle bearing Registration No.AA-9266/Sindh Toyota Crown Silver Colour came there, which was signaled to stop on the basis of suspicion. The person driving the vehicle introduced himself as an Army Officer and told his name as 'Abdul Hamid' appellant. In the meanwhile, a Pajero Jeep bearing Registration No.B-5646/Swat also reached there, which too was stopped. The appellant stated that the said vehicle is also accompanying him. As per prosecution story, said Pajero Jeep was searched, where a deck box was found behind the driver seat, which was deboarded. In the meanwhile, the appellant after deboarding from his car, seated in Pajero Jeep and fled away along with the driver of Pajero jeep towards Tarnol. On search of deck box, 48-packets containing 250 grams heroin each were got recovered. The total weight of recovered heroin became 12000 grams (12 kg). From the recovered substance, 12.5 grams heroin was separated from each packet for the purpose of chemical analysis while preparing 96 parcels.
Car bearing Registration No.AA-9266/Sindh was taken into custody, whose search was conducted from where Registration Book pertaining to both vehicles, National Identity Card of the appellant, Passport and other belongings were got recovered.
3. This incident was reduced into writing as complaint (Exh.P.D) by Allah Yar S.I (PW.1). The complaint was then sent through Arslan Haider 4759/C to Police Station for registration of formal First Information Report ("F.I.R").
4. In pursuance of the registration of F.I.R., investigation was conducted by Muhammad Nawaz S.I (PW.5), who after formal investigation, submitted a report under Section 173 of Cr.P.C. before the court concerned.
5. The appellant was arrested and sent before the learned Judge Special Court CNS, Rawalpindi to face the trial. Charge was framed against the appellant to which he pleaded not guilty and claimed trial.
6. In order to prove the charge against the appellant, prosecution examined Allah Yar S.I, being the complainant as (PW.1) and Muhammad Bashir Moharrar Malkhana, who kept the case property and parcels in safe custody and sent the parcels for onward transmission to the office of the Punjab Forensic Science Agency (PFSA), Lahore appeared as (PW.2). As the appellant purportedly decamped from the place of recovery, so his warrant of arrest was obtained by Muhammad Aslam S.I., who submitted report under Section 512 of Cr.P.C. and he appeared as (PW.3). Asif Iqbal S.I, being the Investigating Officer, appeared as (PW.4). The scribe of F.I.R (Exh.P.D/1) was Muhammad Nawaz S.I, who was examined as (PW.5) and Manzoor Hussain S.I, being the recovery witness, appeared as (PW.6). After recording of evidence, report of the Government Analyst was tendered in evidence as (Exh.P.H).
7. On completion of prosecution evidence, statement of the appellant was recorded under Section 342 of Cr.P.C. in which he pleaded his innocence. The appellant neither opted to get recorded his statement under Section 340(2) of Cr.P.C, nor produced any evidence in defence.
8. On conclusion of the trial, the appellant was adjudged guilty of the offence and was convicted and sentenced as mentioned hereinabove.
9. Learned counsel for the appellant submitted that the alleged recovery was effected from a deck box present in Pajero Jeep and the appellant was never in control of the said vehicle. He added that the appellant was not arrested at the spot and no material has been brought on the record by the prosecution to link the appellant with the alleged recovery. It is argued that the appellant was though shown to be arrested by Liaqat Ali, but he was not produced by the prosecution. Learned counsel while making reference to the statements of prosecution witnesses emphasized that safe custody of case property is shrouded in mystery. Learned counsel contended that the impugned judgment is not tenable under the law.
10. Conversely, learned Deputy Prosecutor-General while resisting this appeal submitted that huge quantity of heroin was recovered from the appellant and he was rightly found guilty by the learned trial court. It is contended that no ground for acquittal is available to the appellant and this appeal is ill-founded.
11. Heard. Record perused.
12. A wade through the record reveals that on 03.12.2017 at about 5:00 p.m., Allah Yar S.I. (PW.1) along with four other police officials was present at the Exit Point of Motorway situated at Tarnol Fateh Jhang Road. Meanwhile, a Toyota Crown Car with registration No.AA-9266/Sindh came from Peshawar side which upon suspicion was intercepted. The person seated on the driving seat claiming to be an Army officer introduced himself as Abdul Hamid (appellant). Shortly thereafter, a Pajero Jeep having registration number B-5646/Swat also made an exit from Motorway and was signaled to stop by the police personnel. Abdul Hamid (appellant) stated before the complainant that the Pajero Jeep was with him and during search 12000 grams of heroin was recovered from a speaker box placed in it. While the police contingent was busy in searching the speaker box, Abdul Hamid (appellant) along with unknown driver decamped from the spot, boarding in the Pajero Jeep and leaving his Toyota Crown Car at the spot. We are compelled to observe here that such swift escape of the appellant from the spot not only sounds strange but is improbable as well, when seen in the context that though the police officials were having vehicle in their possession but still they made no effort even to launch a pursuit for apprehending him.
13. In aftermath of facts mentioned above, it is observed that the appellant was driving Toyota Crown car which though was taken into possession by the police from the spot but no contraband substance was recovered from it. In order to connect the appellant with the commission of crime, prosecution mainly banked upon the C.N.I.C. of Abdul Hamid (P.4), his passport (P.5), a Supardari application for obtaining C.N.I.C. of the appellant (P.7) statedly recovered from the Toyota Crown car (P.10). Admittedly, neither in the crime report nor in the statements of recovery witnesses, the physical and fascial features of the appellant are mentioned. We have no hesitation to hold that since the appellant was not previously known to the witnesses, thus to exclude the question of any mistaken identification it was incumbent to hold identification test proceedings subsequent to the arrest of the appellant. We are astounded to know that though the appellant was arrested after about 8-months of the incident on 07.06.2018 but no endeavour whatsoever was made to hold identification test proceedings so as to exclude all hypothesis of mistaken identification and false implication. The foregoing anomaly gains significance when seen in the context that the implication of the appellant in the case is canvassed before us to be an outcome of mere suspicion, gathered from the recovery of his C.N.I.C., passport and Supardari application (P.4, P.5 & P.7). As this was not enough, it is further noticed by us that though registration numbers were displayed on both the vehicles but even then no steps were taken to establish a nexus between these vehicles and appellant. It needs no scholarly discussion to prove that establishing of nexus between the appellant and the vehicle was not some hard-nut-to-crack and the needful could easily be done by writing a simple letter to the respective Excise offices. To our utter surprise, no effort in this regard was made by the prosecution either during investigation or even at trial stage.
It seems that appellant was named in the case solely on the basis of documents like C.N.I.C. and passport etc. purportedly recovered from the Toyota Crown car.
14. We have further taken note of the fact that some of the witnesses, who were essentially required to be examined during trial were not produced before the court by the prosecution. In this regard, firstly it is observed that the complaint (Exh.PD) was prepared at the spot and was dispatched to police station through Arslan Haider 4759/C for the registration of formal FIR (Exh.PD/1). It needs no elaboration that for proving the transmission of complaint from the spot to police station, the evidence of Arslan Haider Constable had its own importance. The omission of prosecution to produce Arslan Haider Constable as witness before the trial court, left a question mark about the manner in which the FIR was registered, more importantly, when details of the recovery proceedings are also mentioned therein. While dealing with the issue of non-production of police constable who brought the complaint to the police station for the registration of FIR, the Hon'ble Supreme Court of Pakistan in case reported as Minhaj Khan v. The State (2019 SCMR 326) held as under:- ".....the non-production of Constable Jehanzeb Khan who took the written complaint and was an eye-witness of the occurrence and of the recovery memorandums; and the inexplicable conduct of the Complainant PW-2 in not proceeding to the police station himself to register the FIR are matters of concern and collectively of incredulity. The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable doubt, or, at worst, that the petitioner was involved in a false case for ulterior reasons."
Secondly, we noticed that the appellant was also attributed the delinquency of abscondence spanning over approximately a period of eight months. In order to prove the noticeable abscondence of appellant, prosecution tendered in evidence his arrest warrant (Exh.PE/1) and proclamation (Exh.PF/1). As per record, the warrant and proclamation of appellant were entrusted to Shahid Mehmood Constable for execution but even he was neither cited as witness in the case nor appeared in the dock during trial and that too without offering any legally acceptable explanation. Thirdly, it is observed from record that Toyota Crown vehicle was driven to police station from the spot by Riaz Constable and even he finds no place in the calendar of witnesses.
Fourthly, it is discernable from report under Section 173 "Cr.P.C" that the appellant was arrested by Liaqat SI, who was also not arrayed as witness in the case. From withholding of afore-mentioned four important prosecution witnesses, we are left with no other option but to draw an inference in consonance with Article 129 Illustration (g) of Qanun-e-Shahadat Order, 1984 which is to the effect that had these witnesses appeared before the trial court they would not have supported the case of prosecution.
15. We are also compelled to observe here that though the prosecution produced six witnesses during trial but none of them uttered even a single word about the date and place about the arrest of appellant and the manner it was effected. Astonishingly, no recovery memo about the personal search of appellant is available on record. Regarding the afore-mentioned shortcoming, we subjected the learned law officer with a query but he failed to put forth any reply. It will not be out of place to mention here that even the arrest warrant (Exh.PE/1) appears to be of fictitious credential as neither it bears any date of its issuance nor the house number of the appellant is mentioned therein. So far as, the proclamation (Exh.PF/1) is concerned, though it carries the date of its issuance as 17.01.2018 but Muhammad Aslam S.I. (PW.3) made a contradictory statement by deposing to have got it issued on 23.01.2018. Since this is an important aspect, hence an extract from the examination-in-chief of Muhammad Aslam S.I. (PW.3) is being reproduced hereunder:- "On 23.01.2018, I submitted application for written proclamation Exh.PF before the learned area magistrate and written proclamation was marked to Shahid Mehmood/C for execution which was returned to me on 17.02.2018 with report of the process server Exh.PF/1."
We are mindful of the fact that the warrant, proclamation and abscondence of appellant are meant only to provide corroboration to the case of prosecution. The deficiencies arising out from the contents of arrest warrant and proclamation as well as the failure of prosecution to prove their respective execution, left these documents nothing but simple strayed piece of papers having no legal consequences. In observing so, we are guided from the observation of the Hon'ble Supreme Court of Pakistan given in case titled as Muhammad Arif v. The State (2019 SCMR 631) which is as under:- "......who stated during his cross-examination that the address given in the warrants of arrest did not specify street, house number and other conspicuous place. He further stated that the report on the warrants of arrest did not contain name of any person from the neighbourhood or any respectable person of the locality. He further stated that the report on the warrants of arrest and proclamation were bereft of any evidence. Therefore, no corroboration can be sought from such absconcion...."
16. We cannot remain oblivious of the fact that the appellant is charged with the serious allegation of trafficking 12 kg of heroin but even in such a heinous case, the prosecution cannot be absolved from its responsibility of proving the case beyond scintilla of any doubt. The scanning of record leaves no room for discussion that multiple doubts emerge from the prosecution evidence the benefit of which ought to be extended to the appellant which can best be provided through the judgment of acquittal.
As per saying of the Holy Prophet , the mistake in releasing a criminal is better than punishing an innocent person. Same principle was also followed by the Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v. The State (PLD 2002 SC 1048), wherein, it was observed as under:- ".... It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
In supra mentioned case of Ayub Masih, the Hon'ble Supreme Court was also pleased to observe as under:- "...The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".
17. For the foregoing reasons, we accept this appeal, set-aside the conviction and sentence awarded by the learned trial court vide judgment dated 05.04.2019 and acquit the appellant (Abdul Hamid) from the charge while extending him benefit of doubt. The appellant shall be released from Jail, if not required to be detained in connection with any other case.