' GHULAM NABI SOOMRO, J.--- The appellants were convicted and sentenced to R.I. For 10 years each and a fine of Rs,20,000 in default whereof to undergo further S.I. For 6 months more under section 6/9 of the Control of Narcotic Substances Act, 1997, by the Court of Special Judge (Anti- Narcotics), Karachi West, vide its judgment, dated 21-5-1999. Both the convicts have assailed the impugned judgment through this appeal under section 410, Cr.P.C. Read with section 45 of the Control of Narcotic Substances Act, 1997.
2. The prosecution case briefly stated is that on 7-2-1997 while S.-I. Nasir Khan was on patrolling duty, he received spy information that a big quantity of Charas was being taken away from Tharo Lane Garden. After receiving this information he immediately called another mobile police party headed by A.S.-I. Muhammad Naeem Awan and then they jointly reached at Ali Bhai Auditorium at about 7-30 a.m. Where they found three persons having plastic bags in their hands in front of main gate of Ali Bhai Auditorium. After seeing police party, one person ran away from there after leaving his two bags whereas remaining two persons were apprehended., They were holding plastic bags in their hands. Both accused disclosed their names as Imran Akbar and Moosa Akbar. Police recovered two bags from appellant Imran containing 25 Kgs. Of Charas in one bag and 20 Kgs. Of Charas in another bag. Police also recovered two bags from appellant Moosa containing 20 Kgs. Of Charas each. Both the appellants were arrested, and property was sealed at spot and the case was registered against accused persons/appellants.
3. After usual investigation the police challaned all the three accused to stand their trial for the aforesaid offence. Charge against the two appellants and the co-accused Nadeem Akbar (acquitted) was framed to which they pleaded not guilty and claimed to be tried. At the trial the prosecution examined only two witnesses namely Mashir Muhammad Naeem, S.I.P. As P.W.1 and the complainant S.I.P. Nasir Khan as P.W.2 and then closed its side.
4. The appellants and the acquitted accused were examined under section 342, Cr.P.C. Wherein they denied allegations of prosecution and pleaded their innocence. Appellant Imran Akbar and Moosa Akbar further stated as follows:-- Imran Akber "I was arrested from my house at about 4-30 a.m. During Ramazan by S.-I. Nasir Khan. He also called my brother Moosa and we both were brought to Police Station Soldier Bazar, where S.-1. Nasir Khan has registered this false case against us. We were taken to police station in presence of Muhalla people..The narcotic dealer used to run the den of narcotics under the supervision of Soldier Bazar Police Station in the area. I had objected to this, and due to that reason police had involved us. My father was also killed by Narcotic Peddler in 1984."
Moosa Akbar "I was arrested from my house at about 4-30 a.m. During Ramazan by S.-I. Nasir Khan. He also called my brother Imran and we both were brought to Police Station Soldier Bazar, where S.-I. Nasir Khan has registered this false case against us. We were taken to police station in presence of Muhalla people. The narcotic dealers used to run the den of narcotics under the supervision of Soldier Bazar Police Station in the area. I had objected to this, and due to that reason police had involved us. My father was also killed by Narcotic Peddler in 1984."
5. The appellants, however, did not examine themselves on oath but examined Rahim, Bux and Abdul Sattar as their defence witnesses. The learned trial Court at the conclusion of trial acquitted accused Nadeem Akbar while convicted both the appellants as aforesaid.
6. We have heard Mr. Shahadat Awan learned counsel for the appellants and Mr. Habib Ahmed, A.A.-G. For the State and have also perused the record of evidence and the impugned judgment. It was contended on behalf of the appellants that all the three accused in the case are real brothers inter se and were falsely implicated in the case due to their enmity with the police. It was argued that the prosecution story is quite improbable and unbelievable. It was urged that it does not appeal to prudent mind that the appellants including the acquitted accused were carrying such big quantity of the contraband Charas in their hands at morning time from a busy place. It was also contended that the evidence of the two prosecution witnesses suffers from contradictions relating to place of incident, quantity of slabs, weight of the Charas, contents of Mashirnama etc. It was also urged that there were serious discrepancies relating to the case property when viewed in the light of Chemical Examiner's Report. It was also stressed that the prosecution evidence was interested, discrepant and fabricated. The learned counsel on the basis of aforesaid contentions emphasized that prosecution has utterly failed in proving its case against the appellants as well and the appellants were also entitled to their acquittal. The learned counsel placed reliance upon 1992 M LD 90, 1994 SCM R 1612, 1998 PCr.LJ 808 and 1995 SCM R 1345.
8. On the other hand Mr. Habib Ahmed, learned A.A.-G. Appearing for the State has not been able to controvert the contentions raised on behalf of the appellants. He has, however, submitted that variations in quantity are not very material and same are not sufficient to falsify the prosecution case.
9. There is no denial of the fact that all the three accused in the case are real brothers inter se. The witnesses examined by prosecution in support of their case are the A.S.-I. Muhammad Naeem of the police party who was made Mashir of arrest and recovery in the case alongwith one Iqbal a private citizen and Nasir Khan. There is no explanation why the public man/Mashir Iqbal was not examined and was held back and instead A.S.-I. Muhammad Naeem was produced as Mashir.
10. The quality of evidence can further be assessed from the following:--
(a) A.S.-I. Muhammad Mashir (P.W.1) has deposed that Wardat was one furlong away from Ali Bhai Auditorium where they saw and stopped two persons having plastic bags in their hands. Accused Imran was found carrying 65 Kgs. Of Charas while accused Moosa had 80 Kgs. Of Charas. There were 2 bags lying, at Wardat containing 45 Kgs. Charas allegedly belonging to acquitted accused Nadeem." This witness has further stated that acquitted accused Nadeem was not seen by them at the Wardat. This witness has however, not stated that the case property viz. Charas in the Court was same.
(b) P.W.2 S.I.P. Nasir Khan, the complainant in the case, gives an inconsistent statement contradicting the statement of P.W. A.S.-I. Muhammad Nadeem by stating that at 7-30 a.m., they found three persons having plastic bags in their hands in front of the main gate of Ali Bhai Auditorium. One person leaving two bags there ran away on seeing them. He states that they secured 45 Kgs. Charas from possession of, accused Imran and from possession of accused Moosa secured 20 grams Charas. This witness states that Mashirnama was in the hand of another S.I.P. Of the police station who was called for the purpose while P.W.1 Muhammad Naeem denies that the Mashirnama was not in the hand of P.W. S.I.P. Nasir Khan.
(c) On perusal of the Chemical Examiner's Reports we find that the samples were sent on two different dates firstly on 23-2-1997 and secondly on 24-4-1998, while the property was secured on 7-2-1997.
11. The appellants in their statements have disclosed that all the brothers were objecting to police protection to drug dealers and this was the cause of their false implication. The appellants have further stated that their father too was killed by Drug Peddlers.
12. From the above evidence on record it would hardly appeal to a prudent mind, that all the three brothers were taking away such huge quantity of Charas in their hands in the busy morning hours of the day. The prosecution evidence cannot be termed as truthful and free from doubt. The prosecution in our considered opinion has miserably failed to prove its case beyond any shadow of reasonable doubt. We, therefore, accept the appeal of the appellants; set aside their conviction and sentence and acquit them in the case. Both the appellants are ordered to be released forthwith if not required to be detained in any other case.
12-A. We had by a short order, dated 28-10-1999 accepted the appeal of the appellants and acquitted them in the case while above are the reasons for the same.