MIAN MUHAMMAD JAHANGIER, J.- Crl. Appeal No. 168/2000 filed by Ismail and Hidayatullah and Crl.
Appeal No. 183/2000 filed through jail by Khan Fraz are being disposed of together which have .Emerged from judgment passed by Ch. Mazhar Hussain Minhas Sessions Judgment Special Court Anti-Narcotics, Attock dated 13.4.2000 whereby the learned judge in the case bearing FIR No. 305, dated 5.10.1998 at Police Station Attock Khurd under Section 9(c), Control of Narcotics Substances Act, 1997 convicted and sentenced Muhammad Ismail, Khan Fraz and Hidayatullah appellants as under: "Imprisonment for life and i.e of Rs. 2 lacs and in default to pay the amount to further undergo 2 years' R.I. With benefit of Section 382-B, Cr.P.C."
2. In short the allegation against the appellants was that at about 11.00 a.m. On 5.10.1998 in the area of G.T. Road in front of Police Station, Attock Khurd on the basis of secret information when they along with their Mercedes Car No. 6066/SWA were apprehended by a police party consisting of Malik Sher Muhammad, AS1, Shakeel Ahmad, AS1, Sakhi Sarwar Shah, H.C., Muhammad Saleem, LHC, Atiq-ur- Rehman, LHC, Tanveer Asghar Shah, LHC and Abdul Ghaffar, F.C. And headed by Muhammad Iftikhar, Inspector (P.W.4)', 37 Litres (Cakes) of charas weighing one maund, heroin in two packets weighing 2 K.G., one revolver 32 bore and 200 rounds (bullets) of .32 bore were recovered fr6m the car as mentioned above in their possession. It was driven by Muhammad Ismail, Khan Fraz was sitting on the front seat while Hidayatullah was sitting on the rear seat. Little quantity of charas was taken from each cake weighing 1 K.G. And made into sealed parcel for chemical analysis. Similarly a meagre quantity of heroin was taken from each packet weighing 20 grams and made into sealed parcel PI for chemical analysis. The remaining heroin and charas were also made into sealed parcel P2 and taken into possession. Revolver .32 bore- 200 rounds and the car as mentioned above were also taken into possession. So upon complaint Ex.PA/1 prepared and signed by Muhammad Iftikhar, S.I./SHO Police Station Attock Khurd at about .12.20 p.m. On the same day sent through Abdul Ghaffar, F.C. Formal FIR Ex.PA was recorded at Police Station Attock Khurd.
3. Ch. Muhammad Iftikhar, Inspector P.W.4 conducted investigation into this case. Ail the 4 parcels of charas and heroin as mentioned above along with weapon and ammunition, Car P3 and key P4 were taken into possession vide recovery memo. Ex.PB attested by Sher Muhammad, S.I. P.W.5 and Shakeel Ahmad, AS1 given-up as being unnecessary by the prosecution. On personal search of Ismail accused his driving licence P5 was recovered and taken into possession vide recovery memo. Ex.PC attested by the above- mentioned two witnesses. On personals each of Khan Fraz an amount of Rs.4500/- P6/1-33, wrist watch P7, his identity card P8, Identity Card of his wife Mst. Badri Bibi P9 and purse P10 were recovered and taken into possession vide recovery memo. Ex.PD also attested by the above-mentioned witnesses. He prepared the rough sketch Ex.PE of the place of recovery, recorded the statements of the prosecution witnesses and handed over the case property to the Muharrar of the Police Station. After completion of necessary investigation he submitted the challan for trial of the accused persons.
4. When the accused persons pleaded not guilty to the charge under Section 9(c) of Control of Narcotics Substances Act, 1997, the prosecution produced 5 witnesses in toto to prove its case. Ch. Muhammad Iftikhar, Inspector P.W.4 almost repeated the contents of complainant Ex 15 A/1 and materia! Aspects of the investigation conducted by him as mentioned above. Sher Muhammad, AS1 P.W.5 stated about the conduct of raid, recovery of the Narcotics and attesting of the recovery memos, the detail of which has been given above.
5. Ghulam Rasool, AS1 (P.W. 1) stated about recording of formal FIR Ex.PA at the Police Station, Muhammad Shabhir, AS1 (P.W.2) stated about the safe custody of case property which was handed over to him on 5.10.1998 and that about the despatch of samples to the office of Chemical Examiner on 10.10.1996 while Musa Khan, F.C. (P.W.3) deposed about the onward transmission of the sample to the office of Chemical Examiner intact. They report of Chemical Examiner Ex.PF was tendered in evidence and thereafter the prosecution closed its case.
6. At the close of the prosecution case the statements of the accused were recorded under Section 342, Cr.P.C. The denied the allegation levelled by the prosecution and professed about their innocence. When they were questioned as to why this case was registered against them, they submitted their own replies which are as under:- Accused Khan Fraz stated that: "I state on the oath of Holy Quran that neither I am connected with Car No. 6066/SWA nor was I travelling in it on 5.10.1998 along with my co- accused. The police officials apprehended me from Pirwadhi More Rawalpindi and falsely implicated me in this case, In fact, my co-accused murdered my friend Muhammad Hassan i.e Lund Khore oh 2.4.1994. My co-accused were under apprehension ^ that 1 would take revenge of murder of my friend from them due to which on the Plantation of accused Hadayatullah, police arrested me at Priwadhi More Rawalpindi. There were two other persons also present who fled away from the said More but I do not know those persons. Both of my co-accused are facing trial at Takhat Bai in the murder case of my friend Muhammad Hassan. I tender the photo-copy of the FIR of murder case Mark-A."
Accused Muhammad Ismail deposed as under:- "One day prior to the occurrence Khan Fraz co- accused visited Sakha Kot. I was sitting in a bargain along with other Taxi drivers. Khan Fraz told me that he is selling the car at Rawalpindi. The staring of the car has left had drive so he was unable to take the car to Rawalpindi. He asked me to accompany him up to Rawalpindi and he will give him reasonable labour charges. 1 am innocent. I have no knowledge about narcotics in the car. PWs have falsely deposed against me being police officials. Hadayatullah co- accused was taken by us from Shahi village from a medical store on road side just to visit Islamabad along with us."
Accused Hadayatullah stated that: "On 5.10.1998 I was sitting on a medical store at village Shahi and on road side. In the meantime my cousin Muhammad Ismail who was driving the car along with co-accused Khan Fraz passed from there. He told me that he was taking the car of Khan Fraz to Rawalpindi for selling. He offered me to accompany him to Rawalpindi and that we will visit Faisal Mosque Islamabad, and thereafter, we will come back together. On his asking I accompanied them in the car. I was not having any knowledge about the concealment of narcotics in the car. P.Ws, have falsely deposed against me being police officials."
Khan Fraz appellant accused got recorded his statement under Section 340(2), Cr.P.C, and stated that on 5.10.1998 at about 8.45 a.m. He was apprehended by the police at Pirwadhi More in the presence of Gul Muhammad and at that moment Hadayatullah accused along with police came there and on his Plantation police put him in the vehicle on gun point.
7. Adalat Khan DW-1 stated that Mercedes car bearing No. 6066/SWA is registered in the name of Abdul Hameed resident of Malakand Agency as per record of registration of the vehicle. Gul Muhammad DW-2 mainly stated that on 5.10.1998 5 police employees while being present in a motor car apprehended Khan Fraz at Pistol point at Pirwadhi More Rawalpindi. Sher Muhammad DW-3 stated that Hadayatullah accused was carried from his shop by Ismail and Khan Fraz at 9 00, a.m. On 5.10.1998 by offering him a visit to Islamabad by Ismail accused. Abdul Khalid DW-4 stated that Hadayatullah accused was carried from the shop of Sher Muhammad In his presence at about 8/9.00 a.m. About 17/18 months earlier and at that moment Hadayatullah directed him to inform his family members that he had gone along with Ismail and Khan Fraz to Islamabad.
Muhammad Hussain DW-5 stated that on 4.10.1998 at about 4.00 p.m. For the purpose of selling the car Khan Fraz engaged Ismail accused as driver and the car was to be carried to Rawalpindi as in those days Ismail accused had ho taxi with him and Abdul Ghafoor DW-6 stated that about 17/18 months back, it was Monday, Khan Fraz accused carried Ismail accused who drover the car of black colour in possession of Khan Fraz accused.
8. Muhammad Ismail accused tendered in defence certified copy of complaint in case FIR No. 182 Ex.D.B., certified copy of memo, of recovery Ex.DC, certified copy of- recovery memo. Ex.DD and copy of another recovery memo. Ex.DE and thereafter they closed the defence evidence.
9. At the close of the trial the learned Judge found that ' e prosecution has proved its case, therefore, the appellants were convicted and sentenced as mentioned above.
9. We have heard the learned counsel for the appellant and the learned State counsel at length.
We have also gone through relevant record placed before us.
10. The learned counsel for the appellant mainly argued that the judgment passed by the learned Trial Court is against law and facts on the record as basically the evidence on the record was not examined in the light of the settled principles of appraisal of evidence and in fact the prosecution version was under cloud, therefore, on the basis of benefit of doubt the appellants should have been acquitted in this case while Mr. Rab Nawaz Noon, Advocate, learned counsel for the appellant stressed on this point that Hadayatullah appellant was a student who took lift from Ismail appellant for having a visit to Islamabad and . This plea advanced by Hadayatullah accused finds support from the prosecution evidence and in fact this plea was advanced by him at very initial stage before the Investigating Officer. Moreover at trial he produced convincing evidence in support of his plea, therefore, when there, is a chance that the defence version might be true, the appellant could not be convicted and sentenced and in case of Ismail accused he submitted that he was a poor fellow and driver by profession and was engaged to carry the Mercedes car from Peshawar to Rawalpindi and in fact Ismail and Hadayatullah had no knowledge that the Narcotics in heavy quantity have been placed-in secret cavities of the car. He added that if at a|l it is believe that the prosecution case was established even then the circumstances on the record may force to believe that Ismail and Hadayatullah were simply carriers and that the actual owner of the narcotics was some one else and in this situation superior Court have always taken lenient view in awarding the sentences. He referred Amanullah alias Aman v. The State (2000 P.Cr.L.J. 1536), Mumtaz Begum v. Karachi Building Control Authority and 5 others (1997 M LD 1953) and Muhammad Rafiq v. The State (1990 SCM R 602), which have been opposed by the learned State counsel who submitted that the appellants are named in the FIR with an allegation that heavy quantity of narcotics, weapons and ammunition were recovered from car bearing No. 6066/SWA in their possession and that while examining the evidence of both the parties there was a correct analysis of the evidence made by the learned Trial Court and being so the judgment passed by the learned Trial Court calls for no interference.
11. It appears from the perusal of the record that the prosecution case mainly rests on the testimony of Ch. Muhammad Iftikhar, Inspector P.W.4 who on the basis of secret information had conducted raid and later on conducted the investigation and on the testimony of Sher Muhammad, S.I. (P.W.5) who as being member of the raiding party witnessed process of recovery of the Narcotics from the car bearing No. 6066/SWA in possession of the appellants. They faced the test of cross-examination. Ch. Muhammad Iftikhar PW-4 admitted in cross-examination that he is complainant in this case and also I.O.; that during personal search of Ismail appellant except his driving licence no other article or currency was recovered while no article was .Recovered from personal search of Hadayatullah appellant and also admitted that first version of Hadayatullah appellant before him was that he was a student of BA and he simply accompanied the co- accused for a trip to Faisal Mosque at Islamabad. When Sher Muhammad P.W.5 was cross- examined he was put some suggestions that he was not present at the spot or that Hadayatullah was a student. The point for examination is as to what is the value and importance of these two witnesses. So first of all it would appear from their statements that the learned defence counsel omitted to cross-examine these witnesses on some material aspects for example Sher Muhammad, S.I. Was not suggested on behalf of Khan Fraz and Muhammad Ismail appellant that at about 11.00 a.m. On 5.10.1998 in the area of G.T. Road no raid was conducted by a raiding party headed by Muhammad Iftikhar, Inspector P.W.4 on car No. 6066/SWA as a consequence of which they were apprehended at the spot and that the narcotics were recovered and that if the cross- examination on Muhammad Iftikhar P.W.4 is perused it would look that basically the pleas of the accused persons were suggested to him and that the material aspects were omitted which means that the failure to cross-examine the witness on a material point tantamount to its admission.
12. Even otherwise when the specific plea is advanced by an accused then the burden shifts to him to prove the same. So in fact the point for examination is as to what extent the appellants had discharged the onus upon them. So from of all if the plea of Khan Fraz is examined it would look that it is without any basis for the reason that according to him on the Plantation of Hadayatullah accused police arrested him at Pirwadhi More Rawalpindi whereas their contention of Gul Muhammad DW-2 is that a motor-car came from Peshawar side from which 5 persons alighted and all of them were police officials including one AS1 meaning thereby in accordance with his statement Hadayatullah accused was not along with the police party and when Khan Fraz accused during his statement on oath was cross-examined by learned D.A. He stated that he did not see accused Hadayatullah when he left for Rawalpindi. So certainly question would arise as to how Hadayatullah came to know that on such and such time and date Khan Fraz would be available on Pirwadhi More. He has further contended that Hadayatullah and Ismail are inimical towards him because he was pursuing the murder case in which Hadayatullah and Ismail accused were the accused persons. But in support of this contention he did not produce any close relative of Muhammad Hussain deceased, therefore, from all angles it appears that the-plea advanced by Khan Fraz appellant was after thought and worth no reliance.
13. The same is the position of Ismail as the plea advanced by him is without any basis because he did not produce any witness in support of his plea at the stage of conduct of investigation into this case and Muhammad Hussain while appearing as DW5 during cross-examination admitted that he did not appear before the police as a witness as he was not asked by any body to appear before the police and admitted that being a taxi-driver he is friend of Ismail appellant and when Ch. Iftikhar P.W.4 was suggested about this plea he clearly denied by stating that co-accused Khan Fraz employed Ismail accused as driver to take the car to Islamabad for sale. It makes no difference if besides driving licence no other articles were recovered from him because basically the point for examination is as to whether there is any truth in the defence version advanced by him. The actual position is that the defence version advanced by him finds no corroboration from any corner whereas the prosecution case on the basis of testimony of the above-mentioned recovery witnesses corroborated by the statement of the formal witnesses on other material aspects and that the report of Chemical Examiner seemed to have established against Khan Fraz and Ismail appellants while believing on this established principle that in absence of any enmity and malice on the part of the police employees, the police employees are as good witnesses as others. However, the case of Hadayatullah appellant can be differentiated from the other appellants mairie for the reason that the specific plea advanced by him fins support from the prosecution evidence as Muhammad Iftikhar PW-4 admitted in cross-examination that accused Hadayatullah stated before him that he was a student of BA and simply accompanied his co- accused for a nip to Faisal mosque Islamabad. This 'plea advanced by him is further strengthed from this fact on the record that he was penniless at the time of his personal search and that his co-accused Ismail stated in his statement under Section 342, Cr.P.C, that Hadayatullah appellant was taken in the way from Shahi village when Hadayatullah was sitting at a Medical store on the road side. This fact is also proved by Sher Muhammad DW-3 by stating that on offer made by Ismail, Hadayatullah accompanied his co-accused for a visit to Faisal Mosque Islamabad. This witness was cross-examined at length by the learned District Attorney but nothing adverse to the plea of Hadayatullah appellant could come on the record so it looks that his defence version might be true. The benefit of doubt arisen out of the situation must be given to the accused. Being so Hadayatullah appellant is acquitted in this case.
14. While to the extent of Khan Fraz and Ismail appellants the convictions and sentences passed by the learned Trial Court vide judgment dated 13.4.2000 are maintained and to their extent the appeals are hereby dismissed.