' IJAZ-UL-HASSAN, J.---Appellants Ejaz Khan son of Muhammad Afsar resident of village Kag, Haripur and Asmatullah son of Wali Khan resident of Muhallah Soka Nai Abadi Haripur, were tried along with Taj Muhammad Khan son of Khanpur Khan resident of Jamia Haripur and Qazi Muhammad Idris son of Haider Zaman, resident of Beene Baria Sher Garh Oghi District Mansehra, by Sessions Judge/Special Judge, Haripur, under section 9-C of Control of Narcotic Substances Act, 1997. Per judgment dated 8-1-2001, the appellants having been found guilty were convicted under section 9-C of the aforesaid Act and sentenced to suffer life imprisonment and a fine of Rs,50,000 each or in default thereof to undergo further S.-I. For five years. The benefit of section 382-B, Cr.P.C.
Was also extended in favour of the appellants. Co-accused Taj Muhammad Khan and Qazi Muhammad Idris were, however, acquitted for lack of evidence, against them.
2. The appellants, feeling aggrieved, have challenged their conviction and sentence through instant Criminal Appeals Nos.1 of 2001 and 5 of 2001, which shall be disposed of by this single judgment.
3. The facts which we have been able to gather from the record of the case are that on receipt of an authentic information on 15-12-1999 that on that day at any time two smugglers dealing in narcotic business will smuggle huge quantity of heroin and transport the same from Chappar Road Haripur to Lahore, a raidinrparty was constituted and a 'nakabandi' was conducted on Chappar Road near bridge of 'daur'. In the meanwhile a motor car bearing registration No,HR-75 of white colour was seen coming from Pharhala side. The car was stopped by the raiding party and two persons were found sitting in it. On inquiry the person driving the car introduced himself as Ejaz Khan son of Muhammad Afsar resident of village Kag Haripur whereas the other person occupying the front seat disclosed his name as Asmatullah Khan son of Wali Khan resident of mohalla Soka Nai Abadi, Haripur. A bag lying in the feet of Asmatullah Khan was recovered from the car. On opening the bag 15 packets of contraband heroin wrapped in cloth and plastic were recovered therefrom. On weightiest each packet weighed 1 kilogram. One gram from each packet was separated and sent to Forensic Science Laboratory Peshawar for opinion and report. The contraband heroin was taken into possession vide recovery memo. Exh.P.W. 1/5. Three stamps on each parcel for Forensic Science Laboratory were affixed in the name of 'HB' and 8 stamps bearing the same marks were affixed on parcel No,16. An Inspector Syed Rahat Ali Shah Police Station A.N.F.
Haripur drafted the murasila Exh.P.A./1 and despatched the same through LHC Sultan Quresh, to the Police Station for registration of the case. He prepared site plan Exh.P.B. And vide his application Exh.P.W.7/l dispatched the samples to the Forensic Science Laboratory Peshawar for opinion. He handed over the samples and the application to the muharrir who despatched the same to the Forensic Science Laboratory. Laboratory report is Exh.P.W.7/2. The complainant then produced the accused-appellants for getting their confessional statements recorded vide his application Exh.P.W.1/1. During the confessional statement Asmatullah accused/ appellant disclosed the names of the other two persons, Qazi Muhammad Idris and Taj Muhammad. The witness initiated proceedings under sections 204/88, Cr.P.C. Against the mentioned persons. After investigating the case in the manner described above, he handed over the case file to Sardar Abdul Waheed an Inspector ANF Haripur P.W.3 who submitted complete challan against the accused.
4. The prosecution in order to prove its case produced 7 witnesses in all. Mr. Masood Khan (P.W.1)
Senior Civil Judge/Judicial Magistrate, Haripur appeared in Court and stated that Asmatullah Khan was produced before him on 18-12-1999 at 12.30 noon for recording his confessional statement. The handcuffs of Asmatullah were removed and he was given about 30 minutes to ponder over the matter. After observing all the legal formalities he recorded confessional statement (Exh.P.W.1/3) of the accused and issued a certificate (Exh.P.Vj.l/4) in this respect.
5. Abdur Rashid son of Abdur Rehman resident of Darband Adda Haripur (P.W.2) stated that on 14- 12-1999 Ejaz Khan accused hired his car. Next day he came to know that his car bearing registration No,HR-75 has been taken into custody by Narcotic Staff. The remaining witnesses are police officials who apprehended the accused-appellants, carried out the investigation and submitted complete challan in Court.
6. A charge was framed against the accused to which they pleaded not guilty and claimed trial.
7. On the conclusion of the prosecution evidence, the accused-appellants were examined under section 342, Cr.P.C. In their statements they denied the charge and pleaded innocence. In answer to a question, that on 15-12-1999 at 10-40 hours you were driving motor car No,HR-75 which was intercepted by ANF Staff Haripur on Chappar Road and on search 15 k.Gs. Heroin was recovered from immediate possession of your co-accused who was sitting in the same vehicle on the front seat, Ejaz Ahmad stated:-- "On the day of alleged occurrence I was coming to Haripur from my village, in the way Asmatullah was standing on the road side and he signalled me. I gave him a lift for reaching to Haripur. He was holding a bag in his hand and sat in the vehicle. When we reached at the place of alleged occurrence ANF Staff signalled me to stop the vehicle. And on their signal I stopped my vehicle.
They alighted Asmatullah alongwith bag from my vehicle and then enquired from me about my name and about the co-accused. I disclosed the same fact to ANF Staff there and Asmatullah admitted this fact that it was not in my knowledge that wherefrom he was coming and what are the contents of the bag, however, Asmatullah in my presence also disclosed that this bag did not contain any heroin or any contraband and it was a powder. We both were taken to Police Station ANF and in the light of my statement that ownership of the vehicle is on the name of one Abdur Rashid said person was also summoned who gave statement that he was owner of the vehicle and I hired out his vehicle on the that very day as Taxi for my domestic work."
8. In answer to another question regarding confessional statement of Asmatullah, Ejaz Ahmad stated:-- "In the said confessional statement Asmatullah co-accused admitted this fact that he had borrowed the lift on my vehicle when I was proceeding from my vehicle to Haripur. He also admitted that I am innocent and had nothing to do with the offence."
9. After hearing arguments of the learned counsel for the parties with reference to the material on record, the learned trial Judge convicted the accused-appellants and sentenced them to the punishment as mentioned in the opening paragraph hereof. However, Taj Muhammad Khan and Qazi Muhammad Idris co-accused were acquitted for lack of evidence.
10. Mr. Saeed Akhtar Khan, Advocate appearing on behalf of Ejaz Khan appellant vehemently contended that the order of the trial Court is not tenable as it is against the law, facts and circumstances. He reitereated that the case property was not proved during trial. The memo.
Exh.P.W.5/1 reveals that from the alleged bag 15 kilograms alleged heroin was recovered from 15 packets and from each packet, one gram was taken for chemical analysis while the remaining was sealed in one parcel as a case property. The recovery memo. Exh.P.W.5/1 reveals that the Investigating Officer affixed seals in the name of 'MB' on the parcels while preparing the recovery memo. But in the corbon copy or in the statement as admitted by the trial Judge, it reveals that seals in the name of 'RA' were affixed which was tampered with the seal in the name of 'MB'. This fact the learned counsel added creates doubt about the seizing of material in question. To augment the contentions, he relied on various judgments reported as 'Asghar Ali v. The State' 1996 SCM R 1541, Muhammad Ibrahim v. The State 1996 PCr.LJ 1446 (Federal Shariat Court), 'Mst. Nargis v.
The State 1997 PCr.LJ 1093, (Federal Shariat Court), 'Imran Akbar and another v. The State' 2000 PCr.LJ 1792 (Karachi) and 'State v. Mst. Zuhra Bibi and another PU 1996 Cr.C. (Peshawar) 1839 (D.B.).
11. Mr. Masood Azhar, Advocate, for Asmatullah Khan appellant adopted the arguments of Mr. Saeed Akhtar Khan, Advocate and submitted that there was nothing on file to connect Asmatullah Khan appellant with the crime; that one Khial Muhammad had given the bag to the appellants stating that it contained washing powder; that the appellant was totally ignorant as to what was in the bag that the alleged confessional statement of the appellant was not recorded properly and the same should have not influenced the mind of the learned trial Judge.
12. Controverting the arguments addressed on behalf of the appellants, Mr. Abdul Jalil Usmani, Advocate representing the State supported the impugned judgment and order and attempted to argue that keeping in view the facts and circumstances of the case, the learned trial Judge had justifiable reasons to ignore minor discrepancies in the prosecution evidence and technicalities. He relied on 'Munawar Hussain alias Bobi and two others v. The State 1993 SCM R 785 and Rasool Bakhsh v. The State 2000 PCr.LJ 1975 (Federal Shariat Court).
13. There is no denial of the fact that on receipt of a Spy information that on 15-12-1999 at any time, two smugglers engaged in narcotics business will take away big quantity of heroin from Chappar Road Haripur to Lahore, a raiding party headed by complainant Syed Rahat Ali Shah Inspector Police Station A.N.F., Haripur was constituted which conducted 'Nakabandi' on Chappar Road near bridge of 'daur'. In the meanwhile a motor car bearing registration No,HR-75 was seen coming from Pharhala side. The car stopped at the signal given by the raiding party. Ejaz Khan appellant was on driving seat while another person namely Asmatullah Khan appellant was sitting on the front seat.
A bag lying in the feet of Asmatullah Khan appellant was recovered from the car. On opening the bag 15 packets of heroin powder wrapped in cloth and plastic were recovered therefrom. On weighment each packet was found 1 kilogram. One gram heroin from each packet was separated and sent to Forensic Science Laboratory, Peshawar for analysis. A recovery memo. Exh.P.W.1/5 was prepared to this effect in the presence of marginal witnesses.
14. Learned counsel for Ejaz Khan appellant has contended that at the relevant time, appellant Ejaz Khan was on his way from his village to Haripur in the Taxi hired by him from Abdur Rashid P.W. And he saw Asmatullah Khan appellant standing on the road side. At the request of Asmatullah he offered him a lift. Asmatullah Khan was carrying a bag in his hand. Ejaz Khan appellant had no knowledge as to what was there in the bag. The car was intercepted by the Anti-Narcotic Force and the bag was recovered from his car. In support of the plea our attention was invited to the statement of Ejaz Khan appellant recorded under section 342, Cr.P.C. And confessional statement of Asmatullah Khan appellant recorded by P.W.1, in order to show that Ejaz Khan appellant had no hand in the affair and he was falsely connected with the guilt at the instance of police.
15. After hearing the arguments and submissions of learned counsel for the parties in the light of the material on file and the rulings cited at the bar, we find that prosecution has not been able to prove its case against Ejaz Khan appellant. The prosecution evidence falls short of legal proof required in a case of capital charge to establish the guilt of the appellant. There is absolutely nothing on the file to indicate that appellant Ejaz Khan had a hand in the smuggling/ transportation of the heroin and it was in his knowledge that the bag recovered from his car, contained heroin powder. The possibility of the appellant having offered a lift to co-appellant Asmatullah Khan without knowing about the real nature of the stuff contained in the bag---, cannot be excluded in the circumstances of the case. The mere fact the appellant was driving the car in question from which the contraband has been recovered lying under the feet of co- appellant Asmatullah Khan, by itself, is not sufficient to connect him with the guilt, as rightly urged.
We may pause here to mention that the vehicle in question hired by the appellant from Abdur Rashid, has not been confiscated to the State and the same has been discharged of its liabilities. It needs no reiteration that for giving benefit of doubt to an accused, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates a reasonable doubt in prudent mind about the guilt of the accused then accused will be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. Tariq Parvez v. The State PLD 1995 SC 1345.
16. For the aforesaid reasons, conviction of Ejaz Khan appellant in the given circumstances is not sustainable and as such it is set aside. He is acquitted of the charge by giving him the benefit of doubt. The appellant is in Jail. He shall be released forthwith if not wanted in any other case.
17. We now take up Criminal Appeal No,5 of 2001 filed by appellant Asmatullah Khan. A perusal of the record would reveal that the bag containing heroin powder was recovered from the car lying in the feet of Asmatullah Khan appellant. The bag was opened and the heroin weighing 15 kilograms was recovered therefrom and a memo. Exh.P.W.1/5 was prepared to this effect in the presence of marginal witnesses Fida Muhammad Khan A.S.-I. And Sultan Quresh, LHC. One gram from each packet was separated and sent to Forensic Science Laboratory, Peshawar for analysis. The report, Exh.P.W.7/1 is in positive. Learned counsel for Asmatullah appellant strenuously contended that one Khial Muhammad had given the bag to the appellant for onward transmission and the appellant was not aware of the material contained in the bag. The learned counsel also doubted the validity of the recovery memo. Exh.P.W.1/5 and the report of the Chemical Examiner Exh.P.W.7/2. The confessional statement recorded by P.W.2 of the appellant was also brought under challenge and it was maintained that the same having been recorded in violation of the law, should not have influenced the mind of the learned trial Judge to base conviction of the appellant. The submission of the learned counsel have not impressed us. There is sufficient material on the file to connect the appellant with the guilt and no reason has been found on the part of the police to falsely associate the appellant with the crime and foist upon him large quantity of heroin valuing millions of rupees in International Market. The stance taken by the appellant is that actual owner of the contraband was one Khial Muhammad who has not been associated with the investigation. The submission is not tenable. Nothing has been brought on record in support of the accusation. The mere assertion of the appellant that Khial Muhammad had given him the bag stating that washing powder is contained therein, without a positive attempt on his part, to substantiate the same, is of no consequence. Adverting to the recovery made in this case, we find that the recovery has been properly made in the presence of marginal witnesses and its validity is not doubtful. The learned counsel has not been able to persuade us to hold that the recovery was tampered and thus, the same is of no consequence. The witnesses produced on behalf of the prosecution have given a straight forward and consistent account in support of the prosecution version and we see no good reason to disbelieve them. The minor contradictions in the statements of the prosecution witnesses, pointed out by learned counsel for the appellant, are inconsequential and do not impair the prosecution case in any manner. The view we have taken is supported by the observations made in 'Munawar Hussain and two others v. The State' 1993 SCM R 785 wherein it was held: "We may observe that the Courts cannot expect in cases of smuggling of narcotics, the evidence of the nature, which is generally available in an ordinary criminal case, as the persons who indulge in the above nefarious activities are more organised, affluent and influential and, therefore, generally, they manage to cause dents in the prosecution evidence. In such like cases, which are not only damaging the image of Pakistani nation in the comity of nations, but are making our young generalation addicts to narcotic, the Courts' approach should be dynamic and they should overlook technicalities in the larger interest of the country and the public-at-large. The Court is to consider the entire material on record as a whole and if it is convinced that the case is proved, conviction should be recorded."
18. So far as confessional statement of the appellant is concerned, we find that the same has been properly recorded strictly in accordance with law and the mere fact the signature of the appellant had not been obtained does not deprive it of its authenticity specially when there is supporting evidence on the record to implicate the appellant with the guilt. We are satisfied that the appellant was found in possession of the heroin and he was rightly convicted and sentenced by the learned trial Court. The appeal of appellant Asmatullah fails which is hereby dismissed and the impugned judgment and order concerning him is upheld.