' Appellant Muhammad Ibrahim has preferred this appeal against his conviction and sentence awarded by Additional Sessions Judge, Attock vide his judgment, dated 22-1-1996 in F.I.R. No,1073, dated 29-9-1994 under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) to suffer R.I. For four years and to pay a fine of Rs,5,000 (in default thereof six months' S.I.).
2. Prosecution story as reflected by the F.I.R. Is that A.S.-I. Muhammad Basharat Kiyani, along with several other police officials, was present at Police Check Post, Attack Khurd at about 7-45 hours when he saw a Taxi Car No,PRP-5630 coming from Peshawar. Appellant was on driving seat while another person namely Farooq was also sitting on the front seat. One Muhammad Arshad. H.C., first found one packet containing 500 grams of heroin wrapped in plastic envelope in a secret cavity of the car and further search of the car from the dicky brought into light one Sony T.V. Made of Japan.
During personal search of the appellant 110 grams of heroin. Rs,27,000, national identity car and arms licence in the name of Muhammad Naeem were also recovered while personal search of Farooq showed recovery of one Pakistani Passport in the name of Saifur Rehman but bearing photo of Farooq accused, Rs,4,000, 1200 American Dollars and one student card. Hence Muhammad Ibrahim was charged for an offence under section 156/98 of the Customs Act for non-payment of custom duty and Farooq was charged under section 420/468/471, P.P.C. For keeping forged passport while they both were. Booked under Articles 3 and 4 of the Order.
3. After usual investigation charge-sheet was submitted before the trial Court and on account of pleading not guilty they were put to face trial.. Prosecution examined A.S.-I. Muhammad Shabbir (P.W.1) (who recorded the F.1.R.), A.S.-1. Sanaullah (P.W.2) who delivered sample containing heroin to the office of Chemical Examiner), Muhammad Arif (P.W.3) (who took the sample to the Chemical Examiner), Muhammad Arshad (P.W.4) (recovery witness), Muhammad Basharat Kiyani (P.W.5)
(Investigating Officer of the case) and Ch. Habibullah (under whose supervision the remaining heroin was destroyed). Both the accused examined themselves under section 342 but did not like to examine themselves under section 340(2), Cr.P.C. On oath in their own defence. From the list of prosecution witnesses, it is evident that two main witnesses are Muhammad Arshad (P.W.4) and Muhammad Arshad Kiyani (P.W.5). It is notable that seizer memo. Prepared by the Investigating Officer contains names of Muhammad Arshad and Muhammad Tufail as witnesses. Both are police officials but only Muhammad Arshad was examined.
4. The learned Additional Sessions Judge acquitted Farooq from the charge framed against him by observing that "prosecution has challenged him under Article 3/4 of the Order without any just cause".
5. This acquittal was based on the statements of both accused persons recorded under section 342, Cr.P.C. Wherein one accused/appellant supported the statement of co-accused Farooq.
Although neither Farooq had examined himself on oath nor he had cross-examined any witness. If the common stand of two accused persons taken in their statements under section 342, Cr.P.C.
Can be a ground of acquittal of an accused then on the same proposition the learned Additional Judge could acquit the appellant too because the acquitted accused had stated in his statement that:--
(i) No heroin had been recovered from appellant Muhammad Ibrahim, and
(ii) the police had involved Muhammad Ibrahim with mala fide intentions because he had refused to pay money as demanded by the police. The same stand was taken by the appellant that he was implicated falsely because he had refused to pay money as bribe to the police on account of recovery of T.V. For which no duty was paid. Hence it is very astonishing that the learned Additional Judge acquitted accused Farooq on the statement of appellant/co-accused Ibrahim but convicted the appellant although accused Farooq had supported the version of the appellant. This double-standard art of acquitting and convicting the accused person, particularly on the statements recorded under section 342, Cr.P.C. And by ignoring the evidence of prosecution witnesses can never be appreciated by this Court on account of the reason that it not only gives birth to several doubts about the integrity of judiciary but it also establishes the worst and the most dangerous precedent. Would like to elaborate this point with the help of an example.
' Suppose a gang of robbers is caught by police and one of those robbers takes the burden of committing all offences solely on his own shoulders to save the life of his chief robber as well as other main robbers of the gang in his statement under section 342, Cr.P.C. Then a question arises whether the Court would acquit all the main robbers? If the Court does so then all of them would be free to put each and every such witness in hot water who may dare to appear in the Court to testify against them.
6. Come to the grounds of conviction awarded to the appellant. The points taken into consideration by the learned Additional Sessions Judge for convicting the accused/appellant can be summarized in his own words as under:--
(i) Furthermore during personal search, a sum of Rs,27,000 has also been recovered from Muhammad Ibrahim accused which shows that he is definitely involved in this case because in normal circumstances a taxi driver cannot keep such a huge amount of currency with him as taxi driver. He has failed to explain as to why he was carrying that much amount with him."
' It can only be guessed by me that if the learned Judge had been lover of mathematics he would have calculated the value of 1200 American Dollars in Pakistani Rupees recovered from acquitted co-accused Farooq which becomes more than Rs,40,000. If a person holding Rs,27,000 could be convicted on account of possessing that amount as a taxi driver then the acquitted co-accused could also be convicted with higher punishment because he was having more money than the appellant and he too had not explained as to why he was carrying that amount with him.
(ii) The second ground of conviction is that: "Appellant Muhammad Ibrahim could not produce any defense at all by which he could show that for what he was going to Islamabad from Peshawar because Farooq co-accused had simply requested for lift."
' Can it be believed that a person having American currency, Pakistani currency and forged Passport had asked for lift and was travelling in a taxi in which there was no other passenger? The learned Additional Sessions Judge could ask Court-questions regarding the place from where he claimed to have asked for lift? But this aspect was kept hidden.
(iii) The third ground of conviction was based on the presumption: "That even the owner of taxi car has not been examined by Muhammad Ibrahim in this case in his defense who could state that why his taxi driver was going from Peshawar to Islamabad without booking a regular passenger. Furthermore Muhammad Ibrahim accused has nowhere stated that above-mentioned taxi car was owned by him or by someone else ... The registration has not been produced in defense by accused Muhammad Ibrahim."
' I am of the view that the learned Additional Sessions Judge could have obtained information regarding ownership of taxi from the Investigating Officer who had kept the investigation totally silent on this point. It is possible that the appellant might have been kept silent on the strength of certain threats not to open his mouth about the ownership of taxi. Therefore, I have no hesitation to hold that the Investigating Officer is directly or indirectly involved to keep this secret folded.
Similarly the conduct of the learned Additional Sessions Judge cannot be ignored too who had neither confiscated the taxi under Article 15 of the Order nor had stated anything in the judgment as to what happened to the taxi which was allegedly used by the accused/appellant.
7. I consider it necessary to touch another important aspect of the judgment which is usually ignored by the trial Courts to shatter foundation of any case. The trial Court is bound to ask such questions from an accused under section 342, Cr.P.C. Which relate to the root of prosecution evidence and base for conviction. The learned trial Court had convicted the appellant on the basis of three main grounds which have been mentioned and discussed in the foregoing paragraph. But it was shocking for Me to observe that not a single question with reference to those grounds was asked by the Court from the accused while recording his statement under section 342, Cr.P.C. It leaves no other impression for me to believe that the learned trial Court had performed his duty only as a routine which can never be legalized by this Court. It is not an irregularity which could be cured by the Court at any stage.
(a) The record of the case also brings into light a document with the following title:-- {{URDU TEXT}} ' But this certificate is totally silent to radiate:
(i) At what place the heroin was destroyed? And
(ii) At what time?
' Although the certificate contains the words Wife " means "at clock" but this portion of the certificate has been kept blank on that aspect.
It shows the working of the learned. Magistrate which leaves no doubt for me to hold that the learned Magistrate acted most carelessly to provide a chance of acquittal to a criminal.
(b) Besides these fatal defects I consider it necessary to draw the attention of every concerned Court about the proviso to section 516-A, which reads as under:-- "Provided further that if the property is a dangerous drug, intoxicant, intoxicating, liquor or any other narcotic substance seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1930), the Custom Act, 1969 (IV of 1969). The Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979) or any other law for the time being in force, the Court may, either on an application or of its own motion and under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf: Provided also that such samples . Shall be deemed to be whole of the property in an inquiry or proceedings in relation to such offence before any authority or Court."
The word "the Court" as underlined by me, does not mean any Court because if it had been so the legislature would have used the word "a Court" instead of using the words "the Court", the use of word "the" with any common noun converts it into a proper noun. Therefore, I have no hesitation to hold that the words "the Court" used in the proviso is only meant "the trial Court". If the trial Court is a Court of a Magistrate then the Magistrate can pass such an order under the proviso to section 516-A, Cr.P.C., but if the trial Court is the Court of Sessions Judge, as in the present case, then, the certificate under the said proviso issued by the Magistrate would have no legal value in the eyes of law.
' This defect in the prosecution case would always be fatal to ascertain the actual weight of heroin claimed to have been seized by the prosecution provided the said heroin was destroyed. The learned counsel for the State has also conceded to this legal position.
8. In the last but not the least it is necessary to point out certain contradictions in the statements of P.W.4 and P.W.5 namely Muhammad Arshad and Muhammad Basharat Kiyani respectively by reproducing the concerned parts of their statements which reads as under:-- P.W.4
(i) "I do not remember who was to bring the scale and weight from the place when they are normally stored near the check post.
(ii) "The whole process from search to drafting of complaint took two and half hours."
(iii) "We search every passing vehicle at Attock Check Post without any exception and this vehicle was also searched as the same manners."
P.W.5
(i) "The weight and scale used in this process were available with myself. They were not procured from anywhere."
(ii) Till preparation and dispatch of the complaint it took us 1-1/4 hours."
(iii) "No other suspicious vehicle passed during this time. Vehicles may have crossed but I did not smelt (sic) any rate (sic), therefore, they were not stopped by my remaining staff."
' These contradictions were termed by the learned counsel for the State to be minor contradictions but I am unable to share his views. In my view such contradictions, particularly when they come out from the mouth of two responsible police officials of the same raiding party, cannot be treated minors. Such contradictions could be ignored if there had been no other fatal defects in the prosecution case, as have been discussed above, and if these statements had been the part of statements of uneducated and old persons instead of police officials.
9. Without discussing other points such as violation of section 103, Cr.P.C. Examining only one witness out of the two witnesses mentioned in the seizer memo. Etc. I have reached this conclusion that the contradictions in the statements of two main witnesses, unappreciable grounds of acquittal of co-accused Farooq and conviction of the appellant on the same grounds; violation of section 516-A, Cr.P.C. As discussed above and illegalities committed in recording statement under section 342, Cr.P.C. By not asking the questions which were made the grounds of conviction etc. That no one including the trial Court has, left any stone unturned to keep the prosecution case full of defects to shatter its foundation with the help of unanswered realities particularly the ownership and disposal of taxi besides keeping the fate of other two cases hidden claimed to have registered against the accused and co-accused under the Customs Act or for keeping forged passport etc., the realities are collectively sufficient to hold that the prosecution had failed to prove the charge against the appellant beyond reasonable doubts particularly on account of doubtful recovery of heroin and to set aside the conviction and sentence of the appellant.
10. The upshot of above discussion is that Appeal No,35/I of 1996 is accepted by giving .Benefit of doubt to the appellant; the impugned judgment, dated 22-1-1996 passed by the learned Additional Sessions Judge is set aside and appellant Muhammad Ibrahim is acquitted from the charge. He be set at liberty forthwith if not required in any other case.