MUFTAKHIRUDDIN, J.---This is an appeal against the judgment dated 23-5-1989 passed by Mrs. Qaiser Iqbal, the Additional Sessions Judge, Karachi (East) whereby the appellants have been found guilty of an offence punishable under Article 4 of the Prohibition (Enforcement of Hadd)
Order, 1979 and sentenced to life imprisonment and have been ordered to pay a fine of Rs.10,000 or suffer R.I. For one month in default. They have been also awarded ten stripes.
2. The allegations against the appellants are that on 20-2-1987 at 9-00 p.m. They were apprehended at Tool Plaza Super Highway, Karachi while they were found travelling in a Suzuki car (white colour) No.221-533 and two kilograms heroin powder was recovered from the car. The allegations in that behalf are contained in the F.I.R. Lodged on 20-2-1987 at Police Station, Pakistan Narcotics Control Board, Defence Housing Society, Karachi at 23-00 hours by F.I.O. Ghulam Muhammad Shaikh and it is alleged therein that on 20-2-1987 while the said officer was posted at Police Station Defence Housing Society of P.N.C. Board, an information was received that one Suzuki car of white colour bearing No.221-533 was being employed in the smuggling of narcotics and would pass through Tool Plaza Super Highway, Karachi. A raiding party consisting of F.I.O.
Muhammad Khan and some subordinate staff was formed and at Teen Hatti two taxies driven by Muhammad Sharif and Muhammad Wakil were engaged. At 5-00 p.m. The party which also included some policemen reached Tool Plaza and waited for the Suzuki car. At about 9-00 p.m. The suspected car emerged from Karachi side and when signalled to stop did not stop but proceeded ahead. It was chased and ultimately encircled after having gone for some distance. The Suzuki car was being driven by Iftikhar Ahmed alias Babi and by his side was seated Saleem Ahmad Khan son of Bashir Khan of Karachi. On the personal search of the accused Iftikhar Ahmad, currency notes valuing Rs.200 were recovered from his hip pocket. A driving licence NoA-540-405 in the name of Iftikhar Ahmad and a citizen watch were also recovered from him. From the personal search of the other person namely Saleem Ahmad, ten notes of Rs.10 denomination were recovered. On interrogation from Iftikhar Ahmad, he produced from his seat a paper bag and from further search of the front seat adjacent to the driver's seat another paper envelope (bag) was found. The bags were opened and tested and found to contain heroin powder. Each bag was separately weighed and found one kilogram each. The recovered articles alongwith the car were taken into possession by the police. Samples from the bags were obtained for the chemical analysis. The samples and the articles recovered were separately sealed. The accused persons were formally arrested and brought to the police station where the formal F.I.R. Was recorded. The investigation was undertaken by F.I.O. Ghulam Muhammad Shaikh himself.
3. The alleged samples were sent to the Custom Department (Custom House Karachi) as well as National Institute of Health (Drugs) Control and Research Division for analysis. On receipt of the positive reports, the accused/appellants were sent up to face the trial. The charge was framed by Mr. Ghulam Hussain Memon (Sessions Judge, Karachi East) on 4-4-1987 and on the denial by the accused persons the prosecution was called upon to substantiate the charge by evidence. The prosecution produced only three witnesses. They are P.W.1(Muhammad Sharif) as Mashir war examined on 5-5-1987 by Mr. Ghulam Hussain Memon (Sessions Judge) and P.W.2 (Muhammad Khan, F10.) and P.W.3 (Ghulam Muhammad Shaikh, F.I.O.) were recalled for examination by Mrs. Qaiser Iqbal, IInd Additional Sessions Judge (East), Karachi on 7-2-1989. The learned Prosecutor vide his statement made in Court on 15-2-1989 gave up the witness Muhammad Wakil (witness of the recovery and a Mashir) and later on 6-3-1989 closed the prosecution case.
4. The accused persons were examined under section 342, Cr.P.C. Iftikhar Ahmad appellant in his statement denied his apprehension on 20-2-1987 and also the recovery of two kilograms heroin from the seat of the Suzuki but admitted that Rs.200 alongwith the driving licence bearing No.339504 was seized by the police. The appellant Iftikhar Ahmad in his statement on oath stated that he was arrested by the police on 18th February, 1987 at about 6-00 p.m. It was further stated that he was kept in lock up and on 20th February, 1987 came to know that he was involved in a case of heroin. One Saleem Butt owed a sum of Rs.2,24,000 to his late father. The amount was not paid and altercations had taken place between the said Saleem Butt and his late father and the accused Saleem Butt was, therefore, instrumental in his involvement in this case. Saleem Ahmad Khan (appellant) denied the allegations and in his statement under section 340, Cr.P.C. Deposed that he was arrested on 18th February, 1987 and was in the company of Iftikhar at Al-Karam Square in the car when the car was stopped and they were detained by Excise police at Police Station Defence Society and on 20th February, 1987 were implicated in the false case of heroin.
5. The defence witness, Iftikhar Hussain son of Khan Afzal, a Branch Secretary of Workers Fund, Habib Bank Ltd., Karachi, deposed on oath that on 19th February, 1987 he had come to know that the accused persons were arrested by the police. He had gone to Excise Police Station at Defence to enquire about the charge and was informed that the accused were implicated in the smuggling of heroin. On enquiry by the witness the accused had told him that he (accused) alongwith co- accused Saleem Ahmad was going to recover money from his customer when at Al-Karam Square they were arrested by Excise Police on 18-2-1987. The other defence witness named Khalid Mahmood son of Muhammad Ramzan, General Secretary of Shopkeepers Association of P.E.C.H.S. Karachi corroborated the version of D.W. Iftikhar Hussain and stated the same facts as deposed by the D.W.I. The significant aspect of the case is that both the defence witnesses were not cross- examined by the learned A.P.P. And not a single question to challenge their status in life and the fact that the D.Ws. Had seen the accused persons in custody on 19th February, 1987 at Police Station at Defence was put by the Prosecutor. Thus, their version went unchallenged.
6. The learned trial Court believed the prosecution version and brushed aside the defence plea.
Statements of defence witnesses were termed `hearsay'. Accused persons were accordingly convicted and sentenced as mentioned above.
Mr. Azizullah Shaikh, Advocate appeared for the appellants and Mr. K.M. Nadeem, A.A.-G. Sindh represented the State.
7. The learned counsel for the appellants has assailed the order of conviction and has contended inter alia that (A) The Trial Court-has not properly appreciated the evidence on record. The prosecution evidence itself is contradictory on material facts. P.W.1 (Muhammad Sharif) has not corroborated the contents of the recovery memo and thus the alleged recovery is not proved beyond doubt. (B) The trial Court has erroneously placed reliance on the evidence of seizing officers of Narcotic Agency. The implications of statement of the so-called recovery witness have not been given due consideration. The prosecution evidence is thus discrepant. (C) The evidence of the prosecution regarding the place and date on which the samples were secured and sealed is self-contradictory. (D) The prosecution has not established the safe custody of the recovered property and its safe transportation to the Chemical Examiner. Thus, the required chain is not established. Since the recovery itself is doubtful the report of the Chemical Examiner does not advance the case of the prosecution. (Fl The trial Court has erred in law is not accepting the statements of the defence witnesses and contended that the two defence witnesses were not cross-examined by the prosecutor. The defence plea stands proved.
The learned AA.-G. On the other hand has supported the conviction of the appellant Iftikhar Ahmad only and submitted that P.W.1 is an undeclared hostile witness. If his evidence is ignored there still remains the evidence of the officers of the Narcotic Control Board which supports the prosecution case and laid stress on the proposition that there is no rule that the testimony of the Police Officer cannot necessarily be disbelieved merely because he is a policeman and relied on Kamir v. Nazir Ahmed and others 1980 SCMR 791 and Muhammad and others v. State PLD 1981 SC 635. The learned AA.-G. Did not press the conviction of the appellant Saleem Ahmad and conceded that he was a mere passenger m the car with no knowledge of the existence of the narcotics in the car and may be acquitted of the charge.
8. The entire evidence has been read before us. For the proper appreciation of the evidence on record. It is necessary to mention the salient features of the evidence of P.W.1 (Muhammad Sharif) an alleged eye-witness and the Mashir of the recovery. In the examination-in-chief he deposed `on 20-2-1987 at about 4-00 p.m. He was standing at taxi stand, Liaqatabad, Karachi. Ghulam Muhammad Shaikh Inspector, P.N.C.B. And other Muhammad Khan came to me and asked that they want to engage two taxies for going to Super Highway. He and Muhammad Wakil driver of "other taxi agreed. They went towards Super Highway. Stayed at Tool Plaza at about 8-30 p.m. One Suzuki car was coming from Karachi side towards Hyderabad side. Suzuki car was stopped at 9-00 p.m. Accused Iftikhar Ahmad was driving the Suzuki car while co-accused Saleem Ahmad was sitting on the front side of the driver's seat. Accused Iftikhar Ahmad was asked to divert the car and same was diverted towards Karachi and was made to stop beyond Tool Plaza. Police took search of the Suzuki car and secured two bags of powder from the back seat of the car. Bags were lying hidden behind the back seat. Police weighed both the packets and each packet was weighing one kilogram. Police took out samples from both the bags and sealed it as well as both the packets separately. Police brought us to the Defence Police Station P.N.C.B. Where Mashirnama was prepared. I see Mashirnama, it bears my signature but contents of Mashirnama were not read out to me. I produce Mashirnama Exh.6. Other Mashir was Muhammad Wakil. Contents of Mashirnama Exh.6 are now read out to me and its contents are correct except that driving licence was not secured in my presence from accused Iftikhar Ahmad. I see two packets of heroin powder in the Court which are same which I produce as Articles A and B which were secured from the possession of the accused. In the cross-examination, he deposed that both packets were taken out from the car by the Investigating Officer Ghulam Muhammad. Accused did not show or took out heroin from the car. My signature on Mashirnama Exh.6 was taken on the next day at the police station as I was directed to come at police station. Samples were also taken from the heroin packets at police station. Samples were sealed in my presence by the police. The witness however stated that his signature was not taken-on the samples. A question put by the counsel for the accused persons.
Q. "Whether signature from any other person was taken on the sample in your presence?
The trial Court disallowed the question as according to the learned Sessions Judge, `witness has already given reply about his signature".
9. P.W.2 (Muhammad Khan F.I.O.) deposed that `on 20-2-1987 he was posted as F.I.O. At Defence Police Station of P.N.C.B. A spy information was received that at any time the Narcotics would be smuggled outside Karachi. On this information he and F.I.O. Ghulam Muhammad Shaikh alongwith the staff left the office on 3-30 p.m., reached Teen Hatti and arranged for two private cars which were driven by P.W. Muhammad Sharif and Muhammad Wakil. At about 6-00 p.m. The raiding party reached Tool Plaza where police staff was included and they were also included in raiding party, we informed the police party about the Suzuki (white) bearing No.221-533. After waiting for a long time the vehicle arrived which was drived by one man and the second was sitting beside him on the front seat. We tried to stop the Suzuki but despite of our signal the driver tried to run away. We surrounded the Suzuki from the two vehicles with us, thereafter, on interrogation the man driving the Suzuki disclosed his name as Iftikhar alias Boby whereas the man sitting with him disclosed his name as Saleem Ahmed. Accused Iftikhar Ahmed took out one bag of white paper from the front seat, and on further search of the Suzuki car the second bag was secured under the front seat of the Suzuki which was occupied by accused Saleem Ahmed. On opening the bags these were found containing heroin powder. On weighment the bags were found containing one kilogram of heroin powder total weighing two kilograms, out of these two bags, two samples from each bag were secured each weighing 5 grams total weighing 20 grams. On the personal search of the accused Iftikhar Ahmed from the pocket of pantaloon Rs.200, one driving licence in his name were secured.
On the search of co-accused Saleem Ahmed Rs.100 each of 10 rupees Pakistan Currency ten in number were secured. The Mashirnama of the recovery of heroin powder was prepared on the spot. I see Exh.6 and say it is same, correct, bears my signatures as well as of the Mashirs Muhammad Sharif and Muhammad Wakil. The case property as well as the samples were seized and sealed on the spot and the signatures of the Mashirs were obtained thereon. Exh.6 was also read over to the Mashirs. The accused present in the Court are the same. Case property in the Court is the same'. In the cross-examination the witness stated that `I do not remember exact fare of the taxi paid by us but it was between Rs.10 to Rs.15 for one taxi. The fare charges were paid by F.I.O. Ghulam Muhammad in my presence. It was further stated by the witness `that F.I.O. Ghulam Muhammad Sheikh had settled with private car owners. I was standing beside him while he negotiated. The car driven by P.W. Muhammad Sharif was occupied by me. One constable and P.W.
Ghulam Muhammad Shaikh. The spy information was received in office by Ghulam Muhammad Shaikh at about 12 p.m. About the trafficking of the narcotics. It was further stated that on interrogation accused Iftikhar took out a packet of heroin powder underneath his seat which was occupied by him. Co-accused Saleem Ahmad Khan was asked to get out of the car, accordingly he got down. On further search of the car another bag was secured underneath the front seat occupied by Saleem Ahmad Khan. Samples were also weighed on the spot. P.W. Ghulam Muhammad Shaikh had separated three samples. It was asserted by the witness that signatures of the Mashirs were also obtained on the spot. We took Suzuki car to Defence Police Station. It was driven by me. One or two constables occupied the Suzuki while I drove it. The accused occupied the car driven by P.W. Sharif.
10. P.W.3 (Ghulam Muhammad Shaikh, F.I.O., P.H.C.B.) deposed at the trial that on 20-2-1987 he was posted at Police Station Housing Society, P.N.C.B. And had received spy information at, his office that one Suzuki car of white colour bearing No.221-533 would be occupied by two persons and they would at any time pass the Tool Plaza, Karachi alongwith huge quantity of narcotics. A raiding party including P.W. Muhammad Khan, F.I.O. And a police party was arranged. They reached Teen Hatti and acquired two private cars which were driven by P.W. Muhammad Sharif and Muhammad Wakil. At about 5-00 p.m. The raiding party reached Tool Plaza Super Highway. The suspected car was waited for. At about 9-00 p.m. Suzuki car was seen from Karachi side. The driver of the Suzuki car despite the signal did not stop and tried to run away. But it was taken into circle and was stopped. The driver of the car accused Iftikhar was interrogated about heroin. Thereupon from underneath the driver seat accused Iftikhar took out one bag of Khakey colour paper. On opening it was found containing heroin powder. Co-accused Saleem on interrogation showed ignorance. On further search of the car on the front seat alongwith the driving seat underneath another bag was secured. On weighment both the bags were found containing one kilogram of heroin powder total two kilograms. In the presence of Mashirs Muhammad Sharif and Muhammad Wakil the bags were opened and- contents verified. Thereafter he (witness) had drawn samples from each bag of five grams each total weighing 20 grams for the purpose of sending the same to the Chemical Examiner. Later all the samples and case property were sealed and seized at the spot. The car was taken into custody, the accused were arrested in the presence of Mashirs. He prepared Mashirnama of recovery of heroin powder on the spot. The Mashirnama Exh.6 was affirmed in Court by the witnesses. After formalities, the accused, case property and confiscated car was brought to Police Station Defence Society and report was lodged (F.I.R. Exh.12). The witness sent the samples to Custom Department (Custom House), Karachi as well as to National Institute of Health, Islamabad for examination. Report-, Exhs.13 and 14 received in positive were produced. Two packets Articles A and B were produced in Court. In cross-examination the witness stated that the raiding party consisted of 8 or 10 persons and had left police station between 3 and 3-30 p.m. And reached Teen Hatti in about 30 to 45 minutes where two private cars were rented for Rs.200 per day. The cars were driven by Muhammad Sharif and Muhammad Wakil. The Government Jeep was not used. P.W.
Sharif was plying white Toyota Car of model 1975. The car driven by P.W. Sharif was occupied by him and few other members of his staff while the other car was occupied by Muhammad Khan and other staff. It took about 40 to 45 minutes to reach Super Highway from Teen Hatti. P.W.
Muhammad Khan was in the car driven by Muhammad Wakil. The samples were separated from the bags by the witness. They returned to police station at 11 p.m. One police constable had driven Suzuki car when it was removed from the spot to police station. The accused occupied the car driven by Sharif when they were removed to police station from the place of seizure of the narcotics. P.W. Muhammad Khan was in the other car. The samples were weighed on the spot by the witness.
11. Before I enter upon the assessm ent of the evidence, it is necessary to examine the submission of the learned A.A.-G. That P.W.1 (Muhammad Sharif) be treated as hostile and his evidence should be brushed aside. I must confess that it has not impressed me as it has no force. The prosecution has not been able to impeach the credit of P.W. Muhammad Sharif. He was not declared hostile by the prosecutor when he said in the examination-in-chief that on search two bags of powder were recovered from the back seat of the car. Bags were lying hidden behind the back seat and that Mashirnama was prepared at Decence Police Station, P.N.C.B. And that the driving licence was not recovered in his presence from accused Iftikhar Ahmad. This had completely shattered the case of the prosecution contained in the recovery memo and later affirmed by P.W.2 and P.W.3. No hostility or adverseness was displaced by P.W. Muhammad Sharif nor any noted by the trial Court. The prosecution must lay a foundation before a witness is characterised as hostile or adverse. A witness is not necessarily hostile because he lets out the truth. It must be shown that the statement he has made is due to enmity to the prosecution. 1n the absence of any such allegation the prosecution is not entitled to impeach the credit of his own witness. It would, therefore, be not just to say that the defence can take no advantage from any part of his evidence. When a witness makes a statement adversely affecting the property producing him, it assumes great importance and may be treated by the Court as an admission on the part of the party itself. The evidence of Muhammad Sharif must be taken into account and assessed like any other evidence for whatever it is worth. This witness stated in the cross-examination that accused did not show or took out heroin from the car. His signature on Mashirnama was taken on the next day at police station as he was directed to come at police station on the next day. Heroin was weighed at the police station.
Samples were also taken from the heroin packets at police station and that his signatures were not taken on the sample. The statement of Muhammad Sharif thus has demolished the entire prosecution case.
The trial Court did not allow the defence to put the question if signature from any of the person was taken on the sample in his presence. This has certainly prejudiced the right of cross-examination by the defence. The prosecution did not produce the other attesting witness of the recovery memo.
(Muhammad Wakil). Adverse inference thus can be raised against the prosecution. It not infrequently happens that a witness who is called by one party can give important information on other matters which go to support the other party's case. It is no doubt dramatic in proving one's own case from the mouth of the witness of the opponent and such opportunity should not be allowed to go unutilized. The object of cross-examination, inter alia, is to bring out facts which go to demolish or impeach the trustworthiness of the case of the opponent. Cross-examination is one means which is usually adopted to show that the evidence of the other party is false i.e. By showing that the witnesses differ from one another in their account of the transaction, therefore, the cross- examiner tries to create such discrepancies by questioning the witnesses on the same points.
It is possible where two witnesses materially differ in their account of the same transaction, one of them may be talking the truth. It is, therefore, the duty of the Court to decide which version to accept and which to reject but in criminal cases the Court would look upon both versions with suspicion.
There is thus a doubt whether P.W. Sharif was an eye-witness at all. It is not possible to believe that a taxi which is detained for more than eight hours and covers the distance as stated by P.Ws.
Would accept the petty amount of Rs.10 to 15 as stated by P.W.2. It is possible as urged by Mr. Azizullah Shaikh that Mashir Sharif being a taxi driver in order to oblige the Narcotic police signed the Mashirnama at police station next day of the alleged occurrence when he was called at police station. The other private Taxi Wala was intentionally dropped because the alleged recovery was close private affair of the Narcotic Board Staff. In my opinion that constituted a weakness in the prosecution case to which full weight must be given in the application of the rule of reasonable doubt. It must necessarily affect the appreciation of the evidence of the remaining witnesses. The evidence of the remaining prosecution witnesses if examined closely suffers from serious contradiction on material facts. P.W.3 has disclosed that the Taxi walas were to be paid Rs.200 but P.W.2 stated at the trial that it was between Rs.10 to Rs.15 for one taxi and the charges were paid by F.I.O. Ghulam Muhammad in his presence. The place wherefrom the private cars (taxies) were obtained is differently stated by P.W.3 and P.W.2. P.W.3 (Ghulam Muhammad) stated at the trial that the taxies were hired from Teen Hatti but P.W.2 (Muhammad Khan) belies him and said that we had gone from police station to Teen Hatti in two taxies. After the recovery of the contraband, the story is described by these two witnesses differently. P.W. Muhammad Khan categorically said at the trial that the Suzuki car was taken to the police station and it was he who had driven it, the accused occupied the car driven by P.W. Sharif, while Ghulam Muhammad Shaikh stated that one police constable had driven Suzuki car when it was removed from spot to police station. From which place the Suzuki car and the recovery was made is also differently stated by the P.Ws. P.W.1 Muhammad Sharif is clear on this point when he deposed at the trial that it was from the back seat of the Suzuki car but the prosecution case as narrated by P.W.2 and P.W.3 is that the recovery was effected from the front seat of the Suzuki. It is the prosecution case as contained in the recovery memo, winch was allegedly prepared on the spot in the presence of P.W. Muhammad Sharif that the driving licence from the, accused was also taken into possession on the spot but P.W.1 (Muhammad Sharif) did not say so when appeared at the trial. The presence of Muhammad Sharif on the spot, therefore, becomes doubtful and the fact that the Mashirnama was prepared next day at police station, as stated by Muhammad Sharif, appears to be true. It is the case of the prosecution that police staff was also included in the raiding party but none has been examined at the trial. Non-examination of the other recovery witness gives an impression that the alleged recovery is purely a private affair of the Narcotic Control, Staff. In this view of the matter the defence plea that both the accused were already detained at police station at least since 19-2- 1987 is firmly established and there is no reasonable and legal justification to ignore the sworn testimony of the defence witness Iftikhar Hussain and Khalid Mahmood. As pointed out above the statements of these two defence witnesses remained unchallenged. It is a settled position in law that if some fact is deposed to in examination-in-chief. Which is not questioned in cross- examination, the presumption is that that part of the evidence is deemed to have been accepted by the party against whom that evidence has been given. (See 0asim and others v. State PLD 1967 Kar. 233). Acting on this principle the evidence of D.Ws. Iftikhar Hussain and Khalid Mahmood has to be accepted. Upon the consideration of the evidence as a whole a reasonable doubt is created in my mind and the divergence in the prosecution case raised a doubt to the extent of the guilt of the accused and since 1 entertain serious doubt about the recovery of the alleged narcotics in the manner as alleged by the prosecution, it is unnecessary to dilate further on the objections/ arguments advanced by Mr. Azizullah Shaikh, counsel for the appellants. I am clear in my mind that this is not a case in which a finding of guilty can be reached with confidence. I would, therefore, accept the appeal, set aside the order of conviction and sentences recorded against the appellants and order that Iftikhar Ahmad alias Bobi son of Mian Khalid Hussain and Saleem Ahmad Khan son of Bashir Ahmad Khan shall be released if not required in any other case.
IBADAT YAR KHAN, J.---Iftikhar Ahmad son of Mian Khalid Hussain and Saleem Ahmad Khan son of Bashir Ahmad Khan have been convicted by Mrs. Qaiser Iqbal IInd Additional Sessions Judge, Karachi East under Article 4 of the Prohibition (Enforcement of Hadd) Order. 1979 by her judgment dated 23-5-1989 and sentenced to suffer R.I. For life and ten stripes each and fine of Rs.10,000 each and in default of payment of fine to further term of R.I. For one month.
2. Both have filed this appeal against this judgment.
3. The prosecution of the two appellants commenced with an F.I.R. No.3/87 dated 20-2-1987 recorded on the complaint of Ghulam Muhammad Shaikh F.I.O. Pakistan Narcotics Control Board, North Nazimabad, Karachi.
4. According to this F.I.R. F.I.O. Ghulam Muhammad received a secret information that a gang of Narcotics dealers was active and was busy in trading narcotics from Karachi to the Interior of Sindh Province. That a consignment of Narcotic was to be carried in a white Suzuki car No.221-533, on 20- 2-1987 any time in the afternoon through the Super Highway. On this information this officer arranged a raiding party and reached the Toll Plaza to intercept the smugglers. The police party remained in wait at the Toll Plaza till the marked car arrived. The raiding party, which was now joined by the-area police, challenged the car. The occupants of the car raced the car and tried to escape but the police succeeded in frustrating their efforts and encircled the car. The car was driven by appellant Iftikhar. The other appellant was occupying the other front seat of the car and sitting with the drivel. The police interrogated the two occupants and also carried out body search of the two appellants. Some currency notes, a driving licence in the name of Iftikhar Ahmad and a watch were recovered from the possession of Iftikhar. Rs.100 was recovered from the pocket of appellant Saleem Ahmad. On pointation of Iftikhar appellant incriminating material wrapped in a paper bag was found concealed below the driver's seat. Similar packet was found concealed below the other front seat. Both packets were opened and their contents were chemically examined with the aid of the Field Testing Kit which the F.I.O. Party had brought with them. The powdery substance was found to be heroin. The heroin powder in each packet was 1 Kg. Samples were drawn from each of the two packets on the spot. The samples and the bulk were separately packed and sealed on the spot. Recovery memo was also prepared on the spot. It was attested by, two independent public witnesses named Muhammad Sharif, the taxi driver P.W.1 and Muhammad Wakeel another taxi driver (not produced). Both the appellants were arrested, brought to the Thana. They were challaned and sent up for trial to the Court of the learned Additional Sessions Judge East for offences under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979.
5. At the trial both the accused pleaded not guilty and they were charge---sheeted on 4-4-1987 by Mr. Ghulam Hussain Memon, learned Sessions Judge, Karachi East.
6. The prosecution have examined three witnesses. P.W.1 Muhammad Shareef son of Nannay Khan is a Taxi driver in whose taxi the police party travelled from Liaquatabad to the Toll Plaza on Super Highway. He has stated that on 20-2-1987 at about 4-00 p.m. When he was at Taxi stand Liaquatabad the police party had hired two taxis to carry the party to Toll Plaza. The other taxi belonged to one Muhammad Wakeel. At about 8-30 or 9-00 p.m. The appellants car was stopped by the police and as a result of search of the car two Kgs. Of heroin was recovered from the car.
This witness has reproduced the event in his statement. His version, though fully in accord with the version of the two other witnesses on broad facts. Is a little different on certain peripheral and procedural points. For instance while he fully supports the recovery of two kilograms of heroin from the possession of the accused from the car the place of recovery according to this witness was not from the front but the back side of the car. Again on the point of preparation of Mashirnama Exh.6 there is, contradiction in his statement and the statements of two other witnesses. Whether the halfway support coming from this witness is a lapse of memory and human error in reproducing about three months old episode in Court or a positive proof that he was not at all a witness to the event and is a faked witness is debatable. But even if we totally discard his evidence and exclude his testimony, still there are two witnesses of recovery and there seems to be no reason to brush aside their evidence merely because they are employees of the Narcotic Department. Indeed the point is well-settled by now that unless there are weighty reasons to disbelieve official witnesses their evidence should be treated as good as of others and should not be discarded. The two witnesses corroborate each others in minute details and remain unshaken in cross-examination, They not only fully bear out the recovery of two kilograms of heroin from the bottom of front seats of the car but also give full description of the events that followed i.e. How samples were prepared and the report of the chemical examiner (Exh.13) was obtained.
7. Learned counsel for the appellants has argued that the prosecution has 'failed to prove that the material recovered was heroin. It is to be kept in mind that in this case the prosecution have obtained Laboratory opinion from two Laboratories and both of them have found the sample material to be heroin and ' Exh.13 is the opinion of the Customs Laboratory Government of Pakistan.
It is signed by three officers Exh.14 is Test Report from the National Institute of 'Health, Islamabad.
Both these reports have declared the stuff to be heroin. This report has been despatched to Mr. Shaikh Ghulam Muhammad, Field Investigation Officer, P.W.3, under a covering letter dated 15th of March, 1987. This letter is in reply to a letter of request from Ghulam Hussain to the Laboratory.
Learned counsel points out that the date of Ghulam Hussain's letter is mentioned as 8th February, 1987. As such this report pertains to some other sample and not the sample of this case because the date of occurrence itself is 20-2-1987. But this argument is superficial and without any merit.
The other nothings in the report Exh.14 itself identify the material beyond any doubt. It discloses that the samples Nos. 128-N/87 and 129-N/87 were received by the Laboratory on 28-2-1987, Code NoA- 1 and A-2. It clearly mentions that it related to F.I.R. No.03/87 dated 20-2-1987 P.N.C.B., Police Station Defence, Karachi. It further certifies that when received in the Laboratory the seals on samples were `intact'
8. During his statement in Court this Ghulam Hussain (P.W.3) has tendered both the reports in Court. No objection was raised on their production and no clarification was sought during lengthy cross-examination of this witness. N"' at' the appellate stage the learned counsel desires that both these reports sWh4d'be discarded because the date of letter from Ghulam Hussain, P.W. Is typed as 8th February, 1987. It is too late in the day to dig out this discrepancy. Had such a question been asked from the author of this letter he would have offered some explanation how 8th February, was typed out on his letter.
9. It would be profitable to scrutinise how the sample was handled in this case. First a portion of statement of P.W.3 Ghulam Hussain: "I prepared Mashirnama of recovery of heroin powder on the spot. I see Exh.6 and say it is the same, correct, bears my signature, signatures of Mashirs named above and F.1.0. Muhammad Khan. After complying all the formalities I along with all the accused, recovered property and confiscating car arrived at Police Station Defence Society and lodged report on behalf of the State. 1 produce F.I.R. As Exh.12, it bears my signature. I had sent the samples to the Customs Department (Customs House)
Karachi as well as to National Institute of Health Islamabad for examination. I produce the two reports as Exhs.13 and 14, which are positive. I recorded the statements of P.W. Muhammad Wakeel, Muhammad Sharif under section 161, Cr. P.C On completing the investigation, I challaned the accused. Accused Iftikhar Ahmed and Saleem Ahmad present in Court are the same. The two packets of heroin powder present in the Court are same:"
Relevant portion of Customs Laboratory Report Exh.13: Subject:-- Chemical Examination Report of Case Crime No.03/87, dated 20-2-1987 of P.N.C.B. Police Station, Defence, Karachi.
Please refer to your letter No.CMSH/03/PNCB.T.F.-III, dated the 8th February, 1987 on the above-cited subject. The sample entered in this Laboratory vide PNCB/14/87-D.C.E. Tested and the report given as under: REPORT:-- Two sealed samples received marked `A' under the description of heroin on chemical examination both the samples are found to be heroin of commercial grade. Each is in the form of brown colour powder.
Both the two samples duly sealed and signed and returned herewith."
(S d.)(S d.)
(TESTING OFFICER)(SUPERVISING OFFICER)
MD.I. MalikABDUL BASIT DA.C.E.A.C.E.
(S d.)
(Deputy Chemical Examiner)
Countersigning Officer
11. Test report of National Institute of Health Islamabad: `CONFIDENTIAL' Tele No.827967 Cables: Healthiest.
TEST REPORT NATIONAL INSTITUTE OF HEALTH (Drugs Control and Research Division)
Ref. No.1-20/13-N/87-DC and RD Islamabad dated the 15th March 1987.
Lab. Sample No12-H/87 Date of Receipt28-2-1987 Case No. 'A-2 F.I.R. No.03/87, dated 20-2- 1987/PNCB, P.S Defence Karachi.
AgencyField Investigation OfficerP.9C.B., PoliceStation DefenceHousing Society, Karachi SealsIntact.
NomenclatureHeroin Description of evidenceLightbrown coloured powder in a sealed brown paper bag.
IdentificationSample identified to contain heroin acetyl Morphine and opium alkaloids, Morphine, Thebaine, Papavereneand Narcotine Lab. Sample No128-N/87 Date of receipt28-2-1987 Code No.A-I F.I.R. No.03/87, . dated20-2- 1987 P.N.C.B. Police Station Defence, Karachi.
AgencyFieldInvestigation Officer,P.N.C.B PoliceStation Defence Housing Society, Karachi SealsIntact NomenclatureHeroin Description of evidenceLightbrown coloured powder in a sealed brown paper bag.
IdentificationSample identified to contain heroin, Acetyl Morphine, Alkaloids Morphine, Thebalne, Papaverineand Narcotine.
(Sd.)
(DR. ZAHEER AHMED JAN)
CHIEF
12. Before proceeding further it may be observed that in class of cases where the recovery itself is denied by the accused the details relating to testing the sample should not be the criteria to determine the merits of the case. In my humble opinion where the accused denies everything the focal point of the case would be the `recovery'. It the story relating to recovery is believed by the Court and the plea of the accused denying everything regarding the recovery is overruled and found to be false, the result of chemical analysis of the sample becomes irrelevant from the defence point of view. In such a situation it does not lie in the mouth of the accused to press for his exoneration and acquittal on the ground that the investigating agency has, either on account of lack of experience or inadvertently committed some lapses in handling the sample or has failed to produce the man who has taken the sample from the Malkhana to the laboratory. In such case, if on evidence, the Court is satisfied that Narcotic was recovered from the possession of the accused and the denial is dishonest and false, the chemical analysis and reports etc. Would be treated as a curative effort of the prosecution to further strengthen their case. Surely where the accused accepts the possession of the incriminating material but denies that it was a narcotic the prosecution must prove by whatever means possible, including the scientific methods that the stuff recovered is a narcotic. In such a case if fool proof methods are not adopted by the prosecution and sampling, sealing and custody of the narcotic and its safe passage to the laboratory is not fully and satisfactorily proved the report obtained might be subjected to severe criticism and the prosecution may fail.
13. In the present case the main question is whether the incident did occur. In this connection appellant answers during his statement under section 342, Cr. P.C. Throw much light. The following question and reply by the appellant fully shows that the incident did occur and the appellant had an encounter with the police party on the night at the Toll Plaza: "Q.No.6. That your personal search police secured Rs.200 and one driving licence bearing No.339504. What have you to say?
Ans. Yes sir."
14. The above answer is indicative of the fact that Rs.200 were seized by the police. Above all the driving licence produced by the police is appellants licence and surely it was recovered from him.
This lends support to the prosecution case.
15. The upshot of the above discussion is that the prosecution in this case has succeeded in proving the recovery of the narcotic from the possession of the accused on 20-2-1987. They have further supplemented their case by obtaining the reports from two Government Laboratories to establish that the stuff was nothing but heroin. These reports remain un-rebutted and unchallenged. The objections to the procedure adopted by the prosecution in obtaining the reports are an afterthought. At no stage during the proceedings the method of sampling or the authenticity of the Report Exh.6 was ever challenged by the defence. Even today it is not their case that the stuff recovered from their possession was not heroin. Had it been so they can still move the Court and we would have ordered fresh testing from any agency of their choice to give them full satisfaction. The objection raised now is objection for the sake of objection and nothing more than making mountain out of a mole. I have, therefore, no hesitation in holding that the conviction of the accused by the learned Sessions Judge is well deserved.
16. It now remains to examine the involvement and degree of culpability of each of the two appellants in this crime. So far as appellant Iftikhar Ahmed is concerned he was found at the driving wheel and obviously in control of the vehicle he was driving. Therefore, he must own full responsibility for the defence of the narcotic in the car. Other occupant namely appellant Saleem Ahmad has raised the plea of lack of knowledge of the presence of the narcotic in the vehicle.
Although, according to the prosecution, one Kg. Of heroin was found concealed under the seat, which was occupied by appellant Saleem Ahmad, the possibility of his ignorance and innocence cannot be ruled out. Thus, the case against him is not free from doubt. It is to be noted that he has denied knowledge of the presence of narcotic in the car at the earliest opportunity. The following portion of the statement of Ghulam Muhammad (P.W.3), who is Investigating Officer in the case, is noteworthy: "Co-accused Saleem on interrogation has shown ignorance about the heroin powder."
17. . In this view of the matter I would give benefit of doubt to this appellant I and set aside conviction and sentence of appellant Saleem Ahmad. He should be released forthwith if not wanted in any other case.
18. So far as the question of sentence of appellant Iftikhar is concerned, it appears that the sentence is rather harsh. He earns his livelihood by serving in the Habib Rank and it appears that it is the first time that he has been allured to earn easy money through narcotic business. Perhaps the interest of justice would be served if his life term is reduced to R.1. For ten years and the fine of Rs.10,000 is reduced to Rs.5,000. With this modification in the sentence the appeal of lftikhar Ahmad is dismissed.
GUL MUHAMMAD KHAN, C.J.---This case has come before me in view of dissension between two learned members of a Division Bench of this Court, on the question, whether appellant Iftikhar Ahmad alias Bobi, should be acquitted on his appeal or the same be dismissed having no merit.
The learned Judges of the Division Bench, however, agreed that the case against Saleem Ahmad, co-accused was doubtful and therefore, he was entitled to acquittal agreed with the order of acquittal of both the accused and this order supplies the reasons.
2. The facts of the case, have been given in detail, in the two dissenting notes. It may only be stated briefly that according to the F.I.R., a raiding party headed by Ghulam Muhammad Shaikh, F.I.O.
P.W.3, on receipt of a secret information that heroin was to be smuggled to various parts of interior of Sindh, in a white Suzuki Car No.221-533, constituted a raiding party, engaged two private cars and went to the Toll Plaza. After waiting there for some time, the relevant car was seen coming. The members of the raiding party signalled it to stop but it attempted to escape. Consequently, cars of the raiding party surrounded it and the two co-accused were taken out of the car. They were personally searched and some currency and other articles were recovered. On interrogation, Iftikhar Ahmad appellant, who was driving the car took out a paper packet underneath his seat. On further search the raiding party recovered another packet from underneath the other front seat.
The two packets weighed one kilogram each. Samples were taken out of the two packets. The samples and the other material were separately sealed and taken into possession.
3. The case of the prosecution was sought,, to be supported by three witnesses. Muhammad Sharif P.W.1 is (sic) Muhammad Shaikh, F.I.O. P.N.C.B., P.W.3 and Muhammad Khan, Inspector, P.N.C.B. P.W.2.
Muhammad Sharif deposed that Muhammad Wakeel was driver of the other car taken on hire by the two P.W s. They stayed at the Toll Plaza where at about 8-30 p.m. One Suzuki car coming from Karachi side, driven by lftikhar Ahmad, with his co-accused Saleem Ahmad sitting on the front seat, was stopped. Iftikhar was asked to divert car towards Karachi and made to stop beyond Toll Plaza.
The car was then searched and two packets of powder were recovered lying hidden behind back seat of the car. In cross-examination P.W.1 further stated that his signatures on the `Mashirnama'
Exh.6 were taken on the next day at police station and that even the weighment of the heroin and taking of samples was also done at the police station. Muhammad Khan, who appeared as P.W.2, supported the other witness in respect of the hiring of the two cars but differed with P.W.1 in saying that they tried to stop Suzuki car but despite their signal the driver tried to run away before being surrounded by the two vehicles at a distance of 1/2 kilometre. This underlined portion of the statement was fatal to the case of the prosecution as the two witnesses deposed that the recovery was made from underneath the two front seats occupied by the two accused and that the recovery memo as well as weighment was done at the spot.
4. It may be noted that even the F.I.R. Said that the recovery of the contraband material was made after the personal search of the two co-accused had come out of the car and Iftikhar on interrogation took out one packet from underneath his seat. The prosecution, however, had not prayed to declare Muhammad Sharif hostile and allow him to be cross-examined. .As Muhammad Sharif P.W.1 had deposed that the two packets were found hidden behind the back seat while the two other witnesses P.W.2 and P.W.3 stated that one bag was produced by Iftikhar Ahmad from underneath the driver seat and the other was recovered from the front seat before the accused came out and were searched, and as Muhammad Shard' also differed with the other P.W s, in other respects, it was suggested that he might have been won over or threatened.
5. Keeping the above objection in view I have gone through the evidence of the other two witnesses very carefully. Muhammad Khan had stated that the car driven,, by Muhammad Sharif was occupied by him, Ghulam Muhammad P.W.3 and one Constable. Ghulam Muhammad stated that Tovola car driven by Muhammad Sharif was occupied by him and few members of the staff while Muhammad Khan P.W.2 occupied the other car with some >iaff. Muhammad Khan stated that on reaching the Toll Plaza he and P.W.3 came out of the cars. According to Ghulam Muhammad' however, he was standing outside while Muhammad Khan and some staff wvere in the car of Muhammad Wakeel and remaining in the other car and they chased the Suzuki car.
Muhammad Khan P.W.2 said that he and Ghulam Muhammad were in the car of Muhammad Sharif when they left their jeep at `Teen Hatt 1', whereas Ghulam Muhammad stated that he was in the car of Muhammad Sharif while Muhammad Khan was in the other car. Muhammad Khan stated that when they chased the Suzuki car driven by the accused it stopped about half a kilometre ahead of Toll Plaza.
Ghulam Muhammad P.W.3 stated that the cars did not stop and went away. However, the two stand-by cars crossed it and stopped it one or 1-- 1/2 miles away.
Muhammad Khan P.W.2 deposed `I do not remember the names exactly of the occupants of the two private cars beside the drivers when Suzuki car was stopped. I and P.W. Ghulam Muhammad Shaikh did not occupy the private cars when these were used for stopping the car of accused:'
Ghulam Muhammad, however, stated that Muhammad Khan was in the car driven by Muhammad Wakeel.
6. Muhammad Khan said that he and Ghulam Muhammad went on foot to the place where the car was stopped and `perhaps' Mobile police was not present there at that time. Ghulam Muhammad stated that he went in he mobile van of the police where the Suzuki van had been stopped.
Wherefrom this mobile van came is also mysterious? The police party had left the Government Jeep No.GP2475 at Teen Hathi. They had gone to Toll Plaza in the private cars as they could be identified in police vehicle. Ghulam Ruhammad, however, added that at Toll Plaza a mobile van and police constable were present as it is a police post. He, however, mentioned only the private cars, which were stopped in opposite directions. Muhammad Khan mentioned only three police constables posted at the Toll Plaza but no vehicle. Muhammad Khan stated that Ghulam Muhammad Sheikh had separated the samples but they were weighed,, by one Haveldar whose name he did not remember. Ghulam Muhammad, however, stated that he himself weighed the samples in the torchlight. Muhammad Khan stated that the Suzuki, van was driven to the police station by him but Ghulam Muhammad said that it was driven by one constable and Muhammad Khan was in the other car.
7. According to P.W.2 and P.W.3 accused were sitting in the car when P.W. Ghulam Muhammad Shaikh interrogated them but the F.I.R. Stated that the accused were taken out of the car searched and then interrogated outside the car and on interrogation accused Iftikhar Ahmad took out a white package of heroin powder from underneath his seat. According to P.W.2 and P.W.3 Iftikhar took out the packet from below his seat, gave it to Ghulam Muhammad Shaikh and thereafter he came out of the car. Ghulam Muhammad said that the packet from under the seat of Iftikhar was of `Khakey' colour. Muhammad Khan said that `some of constables went running on the spot after the Suzuki car was stopped and we (he and Ghulam Muhammad) also went in good speed'.
Ghulam Muhammad stated that Muhammad Khan was in one of the two private cars which had chased and stopped the Suzuki car.
8. The above discussion would show that all the three witnesses differed I with each other practically on every important aspect and so the very occurrence and particularly the recovery of the alleged contraband material has been rendered highly doubtful. In the circumstances the laboratory results become irrelevant and inconsequential. 1, therefore, agree with my learned brother Muftakhiruddin who has taken all the aspects of the case into consideration and seriously doubted the recovery.
9. In view of the above I have come to the conclusion that the prosecution failed to establish its case against the accused. Their appeal is t bus allowed, the conviction and the sentences are set aside. The contraband material shall, however, be destroyed in accordance with law while the articles recovered from them on personal search shall be returned to them.
10. Before parting with this case I deem it my duty to observe that this was either a false case as pleaded by the accused or it has been spoiled by the prosecution witnesses for reasons, which must be found by the State. 'There are two State employees who were party to the case. The conduct of any one of them or even both may be dubious and treacherous and in that event the delinquent officer may not be a person fit to serve in such sensitive but important positions. A copy of this order shall be sent to the Home Secretary Sindh and Interior Secretary, Government of Pakistan.