1. ' SHABBIR AHMED, J.--- The appellant was tried by the learned Judge, Special Court (Control of Narcotic Substances), Karachi Division, for the offence under section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred to as the Act) and was convicted by judgment dated 8- 6-2001, with sentence of imprisonment for life and fine of Rs,10 lacs and in default to pay fine to undergo further R.I. For 5 years.
2. ' The appellant has preferred the above appeals against the judgment of conviction through Advocate as well as through Jail Superintendent. We intend to dispose of the above appeals by common judgment.
3. ' The prosecution case, as per the F.I.R., lodged, by Syed Muhammad Sadqain Naqvi, Excise Inspector, District South Karachi is as under:-- "That on 4-5-1999, I, Inspector Muhammad Sadqain Naqvi, alongwith other police party of Excise Police and witnesses namely Zulfiqar Ali son of Ghulam Nabi in Memo. No,1 and Muhammad Asif son of Muhammad Aslam in Memo. No,2 was standing on the above said place of incident. We saw one Honda Civic Car black colour bearing I.G. No,6077, from our front side, wherein two persons were sitting in front seats. The said car was given signal to stop but the driver instead of stopping the said car raised its speed. The said car was chased and the same was encircled after some distance. Meanwhile, the driver got down from the car and ran away. The person who was sitting on the seat next the driver was caught hold. The police party chased the driver but he made his escape good. I introduced myself to the person who was caught hold and he disclosed his name Mian Muhammad Irshad son of Mian Karam Din. He was personally searched under Mashirnama but nothing incriminating was discovered from him. The above said car was also searched and found card board carton from Dicky and the rear seat of the said car. The same were opened and found Charas in all the cartons. Further search was also made but nothing was recovered. The above said person disclosed the name of the person who ran away as Tony, who is narcotics smuggler. From further search, no incriminating articles were recovered. The recovered Charas from above said car was taken into police custody and arrested the above said person, formally.
4. The said cartons were counted, they were 20 in number. 15 Kgs. Charas packed in each carton and total weight is 300 Kgs. The said Charas was sealed in the above said cartons recovered from cartons Nos.1, 5 and 11 were separated for chemical examination. The memo. Of the above said recovery was prepared and read over to the witnesses and made them understand. They found the same correct and signed on the memo. And all the cartons wherein Charas was secured on the spot thereafter the accused alongwith case property was taken to Police Station Excise Police South Karachi and case registered under Articles 3 and 4 of the Prohibition of (Enforcement of Hadd) Order of 1979 and 6/9 Narcotics Control against the above said person and the absconder accused Tony."
5. ' After investigation, the appellant was put to trial. He pleaded not guilty to the charge.
6. ' The prosecution in support of its case examined two witnesses namely P.W.1 Zulfiqar Ali, recovery Mashir, who produced recovery/inspection memo. As Exh.8-A and P.W.2 Syed Muhammad Sadqain Naqvi, Investigating Officer, who was heading the patrolling party, apprehended the accused, secured the narcotics in presence of Zulfiqar Ali and Asif, recorded the F.I.R. (Exh.9-A) on behalf of the State, investigated the case and dispatched the samples for chemical analysis, the report is in positive (Exh.9-B).
7. ' The appellant met the prosecution case with bare denial by pleading innocence and false implication but neither examined himself in defence nor examined any defence witness.
8. ' The appellant was convicted and sentenced to imprisonment for life with fine of Rs,10 lacs, in default whereof to undergo R.I. For 5 years further by judgment dated 15-7-2001. The appellant preferred the appeal against the conviction before this Court. By order dated 18-1-2001 the appeal was allowed and the case was remanded with direction to obtain explanation on re-examination of the Investigating Officer by recording further statement of the appellant. On remand, further statement of the appellant under section 342, Cr.P.C. 'was recorded on 3-5-2001. After conclusion of the trial, the learned Special Judge convicted the appellant and sentenced him as stated above by judgment dated 8-6-2001, which has been impugned through above appeals.
9. ' During the hearing, we have reappraised the evidence with the assistance of the learned counsel for the appellant and the learned Assistant Advocate-General on behalf of the State.
10. ' The learned A.A.-G. Has supported the judgment of conviction on the ground that 300 Kgs. Of Charas was recovered from the luggage boot and rear seat of the car during Nakabandi. Such a huge quantity of Charas cannot be foisted, no enmity has been established against the Excise Police. He further contended that even if the evidence of recovery witness Zulfiqar Ali is excluded, the testimony of Syed Muhammad Sadqain Naqvi is sufficient for recording the conviction and maintained that the learned trial Court has rightly convicted the appellant by supporting the judgment.
11. ' Conversely, Mr. Sarfraz Ahmad Tanoli, learned counsel for the appellant contended that, according to the F.I.R. Nakabandi was arranged with association of 2 witnesses of Nakabandi on prior information. This fact has not been corroborated by the witness of recovery P.W.1 Zulfiqar. Ali, who is not only a chance witness but a stock-witness of Exdise Police. Zulfiqar Ali, on the day of occurrence, had gone to Seth Karim, who resides at Boat Basin and after meeting Begum Seth Karim he was returning to his residence and he had hardly covered a few paces he came across a crowd on the road. It was about 2-00 p.m. The appellant was in the custody of two constables. They were telling the Inspector that they have arrested a person while his accomplices escaped. There was a car of black colour by the side of the road. The Inspector took search of the car and secured 20 cartons lying in luggage boot and on rear seat of the car. Each carton contained 15 slabs of Charas weighing 1 Kg. Mr. Tanoli contended that this statement is contrary to the testimony of Syed Muhammad Sadqain Naqvi. According to him, he had received an information that a car would transport Charas. Constable Aurangzeb, Khuda Bux, Gulab Khan, Saleem and others were with him in official mobile and reached at Boat Basin at about 11-30 p.m. When he established a picket near Nihari House on the road leading towards Bilawal House. At about 2 p.m. Car of black colour model Honda Civic came from Clifton side. He had information about that car. He signalled the car to stop but the driver instead of stopping it accelerated its speed. The said car was chased. The car had hardly after covering a distance of 25 yards stopped. The driver came down and started running towards East. The appellant was apprehended, who was sitting by the side of driver on the front seat. He took search of the car and secured 20 cartons lying in the dickey and on the rear seat of the car. Each carton contained 15 slabs of Charas. One slab weighing 1 Kg. He then sealed the cartons under Mashirnama prepared in presence of witnesses namely Zulfiqar and Muhammad Asif.
12. ' Mr. Tanoli pointed out that according to memo. Of inspection and recovery (Exh.8-A) in presence of witnesses Zulfiqar Ali and Asif. Syed M. Sadqain Naqvi accompanied by other Excise Police staff were standing on the above mentioned place when Honda Car of black colour bearing No,G-6077 came in which two persons were sitting at front seat. The car was surrounded. During this, the driver namely Akhtar got down from the car and fled away while the person sitting besides the driver i,e, the appellant was apprehended. Mr. Tanoli contended that two statements contradict each other. If the statement of Zulfiqar Ali is believed then the statement of the Investigating Officer Syed Sadqain Naqvi is to be disbelieved and in such a situation, the appellant is entitled for the benefit of doubt and to support his contention referred the case of Sikandar v. State PLD 1963 SC 17 wherein the principle laid down was the benefit of doubt must go to the accused. It being a question whether the statement of A.S.-I. Was to be believed or Muhammad Ramzan was to be believed. The only course open to the learned Judges in accordanc with this recognized rule applicable to criminal justice was to hold in favor of the accused namely that it was doubtful whether Muhammad Ramzan was a true witness.
13. ' Mr. Tanoli further contended that the testimony of two witnesses is full of infirmities, thus the prosecution has failed to prove the guilt of the appellant;beyond any reasonable doubt. He pointed out the infirmities and contradictions in the statement of two witnesses. According to the witness Zulfiqar Ali, the accused was in custody of two constables and they were telling the Investigating Officer that they have apprehended the appellant while his accomplices managed to escape.
14. Secondly, according to him, he was examined on the same day within half an hour and after departure from police station on that day he never met Inspector S.M. Sadqain Naqvi or any official of Excise Police, whereas according to the Investigating Officer S.M. Sadqain Naqvi, the appellant who was sitting by the side of the driver on front seat was apprehended by him. P.W. Zulfiqar Ali, was examined on second or third day of the incident. According to him the car was not intercepted on the road leading to Keamari but it was the road leading to Bilawal House, whereas, according to P.W. Zulfiqar Ali the car was on the round about on the road towards Keamari.
15. ' The contradictions and infirmities between the statement of Zulfiqar Ali, recovery Mashir and the Investigating Officer as stated above, according to Mr. Tanoli makes the case of the prosecution doubtful. In support of his contention he referred the case of Abdul Hameed v. The State NLR 1986 SD 144 that if one prosecution witness is believed then the second witness is to be disbelieved and in such a situation the benefit of doubt is to be extended in favor of the appellant.
16. ' He vehemently contended that Mashir Zulfiqar is stock-witness of Excise Department, who admitted to have acted as Mashir in 5/6 cases. He also admitted relations with Excise Officials since 1980 and used to serve as a cook with Excise Police. He also served as constable in Excise Police against leave vacancy. He further contended that he has denied any acquaintance with Inspector Syed Sadqain Naqvi but Sadqain Naqvi has admitted that Zulfiqar is their own man and he has acted as Mashir in his so many cases and is known to him since his entry in the service of Excise Department. On this admission, it has been contended by him that Zulfiqar is not a truthful witness and a stock-witness of Excise Police having participated in a larger number of investigations and on the testimony of such witness conviction cannot be recorded. To support his contention he referred Ashiq Hussain v. The State 1975 PCr.LJ 675, Muhammad Yousuf v. The State 1994 PCr.LJ 2518, Hamza v. The State 2000 PCr.LJ 1760 and Ali Hassan v. The State. PLD 2001 Kar.
17. 639.
18. ' Lastly it has been contended by Mr. Sarfraz Ahmad Tanoli that according to the prosecution case Akhtar alias Toni was driving the car.
19. ' The allegation is that the appellant was sitting on the front seat beside the driver. He had no concern whatsoever either with the vehicle in question or there is no evidence that he had knowledge of the presence of the narcotics in the cartons. The vehicle was owned by one Mst.
20. Fareeda and contended that no legal evidence has been brought on record to connect the appellant with the commission of the offence and mere presence of the appellant at the time of occurrence, without any knowledge and in absence of conscience possession over contraband of the appellant, cannot be the basis of his conviction, thus the case of the prosecution against the appellant being highly doubtful and the learned trial Court has erred in law withholding the benefit of doubt in favor of the appellant. To support his contention, he referred cases of (i) Mushtaq v. The State 2002 PCr.LJ 1312 and (ii) Ejaz Khan v. The State 2001 YLR 2039.
21. ' In above cases in absence of conscience possession of contraband the benefit of doubt was extended following the rule laid down in case of Tariq Pervez v. The State 1995 SCM R 1345.
22. ' The perusal of the record shows that the evidence of prosecution witnesses is contradictory and discrepant one. P.W.1 Zulfiqar Ali is stock-witness, he had been appearing in the cases of excise police as a prosecution witness prior to this case. His appearance at the place of occurrence by chance is doubtful, though he admits to be examined on the same day but Investigating Officer states that he was examined on second or third day. If Zulfiqar was present why, he was not examined on the same day, this contention makes his presence at the Vardat doubtful secondly, the two witnesses have contradicted each other on A manner in which the incident took place on material point i,e, in respect of Nakabandi. According to Zulfiqar Ali the incident took place on the road at round about towards Keamari whereas according to the Investigating Officer on road towards Bilawal House, which are on different directions. According to the Investigating Officer Mashir was present at Nakabandi whereas according to Mashir he reached at the Wardat noticing the crowd and found the appellant in the custody of two constables. These contradictions, particularly with regard to the place of incident makes the prosecution case highly doubtful, if the incident took place in the manner alleged by the prosecution.
23. ' The learned A.A.-G. Has canvassed before us that solitary evidence of the Investigating Officer Syed Muhammad Sadqain Naqvi is sufficient to prove the recovery, even if the evidence of recovery Mashir is excluded from consideration.
24. ' We may refer the distinction drawn by the Supreme Court with regard to the value of evidence of police personnel in a case in which the offence charged is the recovery of the article itself and a case in which the article recovered is to be used as a corroborative piece of evidence in Mushtaq Ahmed v. The State PLD 1996 SC 574 reiterated in State v. Bashir PLD 1997 SC 408 as follows:-- "That likewise there is a marked distinction between a case in which the offence charged with is the recovery of the article itself like recovery of an unlicensed kalashnikovs and a case in which the article recovered e.g. a crime-weapon is to be used as a corroborative piece of evidence. In the former case if the witnesses to recovery were police personnel though it was possible to have two Mashirs from the locality where recovery was made, their testimony in absence of other reliable piece of evidence would not warrant conviction, whereas in the litter case, if other pieces of evidence on record are from doubt, the testimony of the police personnel if otherwise free from any legal infirmity be accepted."
25. ' There is nothing on record to suggest that the prosecution has proved the conscience possession of the appellant in respect of the alleged contraband narcotics. No doubt, huge quantity of contraband narcotics is allegedly recovered but that factum alone cannot be basis of conviction.
26. ' The upshot of the above discussion is that there is no satisfactory basis of upholding the conviction and sentence. The appeal is allowed and conviction and sentence of the appellant is set aside. He is acquitted of the charge. He shall be released forthwith if hot required in any other case.