1. AZIZULLAH M. MEMON,. J ---Appellant Syed Karim has filed this Criminal Appeal under section 48 of Control of Narcotic Substances Act, 1997 (hereinafter to be referred to as the said Act) against the judgment dated 22-5-2002, passed by learned Judge, Special Court (CNS), Karachi Division in Special Case No,47 of 2000 (F.I.R. No, 15/98) of Police Station ANF -- Clifton Karachi), whereby the appellant stands convicted for committing an offence punishable under section 9(c) of the said Act and is sentenced to suffer imprisonment for life and also to pay fine of Rs,10,00,000 or in default thereof to further suffer rigorous imprisonment for two years, with benefit under section 382-B, Cr.P.C, learned trial Court, through the same judgment acquitted co-accused Arshad Saleem by awarding benefit of doubt to him whereas the case against absconding co-accused persons namely Fazal Rahman, Naseem, Amjad, Nadeem and Jawaid was thereby directed to be kept on the dormant file. We have heard Mr. Azizullah Shaikh, Advocate for the accused appellant and Mr. Shoaib M. Ashraf, Special Prosecutor for ANF; also perused R & P of the case. Prosecution story, briefly, is as under:- On receipt of the spy information, Sub-Inspector Sajjad Ali of Police Station ANF, Clifton, Karachi, with other police officials (and under the supervision of Capt. Asadullah Khan Leghari of ANF), proceeded to arrest the culprits on 21-11-1998, who reportedly indulged in the trafficking of narcotics and reached D.J. Science College alongwith the said spy, who at 12-00 noon pointed out accused/appellant, while standing and carrying one bag of black and green colour, made of ragzine material and found containing the heroin powder; S.-I. Sajjad Ali interrogated him, but he could not reply satisfactorily whereupon S.-I. Inspected the said ragzine bags, which was found containing 10 packets therein, out of which four packets, were of transparent polythene bags containing white heroin powder therein; 05 packets were found having been wrapped with polythene tape and remaining one packet was also in the polythine bag; all the said six packets were also found containing heroin powder therein of brown colour, such examination was held by S.-I. Sajjad Ali with the relevant test-kit; he also took the weight thereof and each packet came to be of the weight of 1 k.g. Total weight of the heroin powder thereby came to be of 10 kgs. S.-I. Sajjad Ali took out 5 grams of the heroin powder from each of the said packets, to refer the same for chemical analysis and sealed the same separately, while rest of the recovered heroin powder were separately sealed viz. 4 packets found in the transparent polythene bag, were sealed by wrapping the Same under a newspaper, while rest six packets were placed and sealed separately with other piece of newspaper and all such material was put in the same ragzine bag, recovered from the accused/appellant, then it was sealed. In the personal search of the accused/appellant a duplicate copy of his NIC with cash amount of Rs,500 and one wrist-watch were secured; he was arrested accordingly and such Mashirnama was prepared while S.-I. Farooq Ahmed and Constable Aziz of ANF acted as such Mashirs; S.-I. Sajjad Ali prepared such Mashimama in their presence; appellant allegedly disclosed that the said heroin powder was brought by him from Afghan Basti having been handed over to him by Fazal Khan and Naseem Khan by further stating that acquitted accused Arshad Saleem had to collect the said heroin powder from the appellant, who was to arrive at the very same place in a short while. As such, the said party of Anti-Narcotic Force while keeping the appellant under their arrest, kept waiting at the very same place for the purpose of arrival of acquitted accused Arshad Saleem (who had to collect the said heroin powder from the accused/appellant as per the prosecution story) at about 1-20 p.m. One Toyota Corolla Motor Car allegedly arrived at the very same place bearing Registration No,AAN-316 being driven by the said acquitted accused. It is alleged by the prosecution that present accuced/appellant then disclosed that the acquitted accused was the same person who was to collect the said recovered heroin powder from him. S.-I. Sajjad Ali then made necessary inquiries and also made personal search of Arshad Saleem and thereby recovered credit cards of different banks, visiting cards and cash amount of Rs,458 from his possession alongwith a photocopy of NIC; the said motor car was also searched and a brief case of green colour was secured which was lying on the front seat thereof (adjacent to the driving seat) containing different cards and some documents; the same were also secured by S.A. Sajjad Ali by preparing such a list in presence of the very same Mashirs; acquitted was arrested accordingly under such a separate Mashirnama and the said motor car was also secured by him. Thereafter both the said arrested accused alongwith property and the motor car were taken to the said police station, where 5.-I. Sajjad Ali lodged F.I.R. On 22-11-1998, acquitted accused Arshad Saleem was taken in his office situated at Tariq Road, where 8 cheque books of ANZ Grindlay's Bank with other files including telephone directory were secured by S.-I. Sajjad Ali under such mashirnama, while Saeed Himayoon and Ehtisham Mehmood were present who were then serving in the said office of the co-accused. Passport of the co-accused was also secured on 25-11-1998, from "Moon Travelling Agency"; under such mashirnama. After the investigation got completed, accused/appellant alongwith acquitted accused were sent up to the Court of learned Sessions Judge/Special Judge, Anti-Narcotics, Karachi-South. Formal charge was framed against both of them for committing offence punishable under section 9(c) of the said Act read with section 15 thereof, to which both accused pleaded not guilty. In support of its case prosecution examined Mashir Farooq Ahmed at Exh.P/34, who produced Mashirnamas of recovery and arrest, while the other witness examined by the prosecution is S.-I.
2. Sajjad Ali of Anti-Narcotics Force, who produced the F.I.R. Of the case. The process-server Khaliduddin Khan, Inspector ANF was also examined at Exh.36, who deposed that P.W. Constable Aziz Khan stands dismissed from the service, and his whereabouts were not known to anybody, while Capt. Asadullah Khan Leghari stood transferred to his original post in the Army and could not be served with the process of the Court, and the remaining P.Ws. Were also not traceable despite best efforts of the said process-server to trace them out for service of the process. Accordingly, the prosecutor filed statement at Exh.37 to close the side of the evidence of the prosecution. In his statements under section 342, Cr.P.C. Both accused denied the allegations of the prosecution and stated that they were falsely implicated in this case. Co-accused Arshad Saleem further stated in the said statement that one retired Air Commodore namely Saad Hatim was his partner in the business, who was related to Capt. Asadullah Leghari and "at the instigation of Capt.
3. Asadullah Leghari I was involved in this case falsely" due to business rivalry; he produced copies of F.I.R. No, 504/92, certified copy of plaint of Suit No,11585 of 1992, with other documents pertaining to the said suit and share certificates; he further stated that he was present in Islamabad on the day and time where on his arrest was allegedly shown, and returned back to Karachi at 8-30 p.m. On 21-11-1998; he produced debit voucher of DDI for purchase of the air ticket, original bill of Shirazi Travellers, return ticket, passenger manifests from Karachi to Islamabad and from Islamabad to Karachi. Appellant Saeed Karim examined himself under section 340(2) Cr.P.C. By deposing that on 20-11- 1998, at 5-00 p.m. ANF Officials arrested him from near "SIEMENS", Site Area, Karachi, while he was there with his two sons namely Adnan and Zeeshan, and they took them to ANF Office, Clifton and involved him in this case falsely, for the reason that he earlier was having business with one Ayub son of Farid, against whom an amount of Rs,5,00,000 was outstanding to the appellant, and who had called the appellant to the said place (in the Site Area) on the pretext of payment of the said outstanding amount, where he was got arrested by ANF Officials, while his two sons were with him, his neighbour Aurang Zaib was called through telephone and was informed about such facts and was requested to take away his both minor sons; the said Aurang Zaib then reached the ANF Police Station and took away his two sons from there. He further deposed that ANF Officials (allegedly) demanded money from him, but on his failure to pay the same, he was falsely implicated in this case by them for the reason that the Deputy Director of ANF, namely. Akhter was related to the said Ayub son of Fareed, then posted at Karachi during those days, at whose instance he was got falsely implicated in this case. In his cross-examination to the Special Prosecutor, he deposed that he had made written complaints to the Directorate of ANF, Karachi and their superior officers at Islamabad against his false involvement in this case. Appellant also, examined D.W. Umar Zaib Pathan, who has supported his version to the effect that the appellant had called him on telephone, he went there in the office of ANF at 8-30 p.m. In the next morning and Inspector Sajjad Ali had asked him to take away two sons of the appellant, who were in the other room, by obtaining his signature on a paper and this D.W. Took them on a motorcycle to their own house. Son of the appellant namely Adnan aged about 17 years was also examined by the appellant in his defence, deposed that while he along with his father viz. The appellant and younger brother Zeeshan were at "SIEMENS Chowrangi", Site Karachi at 5-00 p.m. ANF Officials caught hold of the appellant, with both the said brothers, whereafter they were taken to ANF Office, Clifton and were confined in a room thereof, and further that their neighbour Umar Zaib reached there on the next morning and took both the brothers to their own house while the appellant continued to be detained. Acquitted accused Arshad Saleem examined D.W. Anisur Rahman Qureshi at Exh.44 who deposed that the said accused was worming at Chief Executive of TDI, International, Tariq Road, Karachi, wherein the said D.W. Was serving as part time accountant and further that on 21-11-1998 at 9-30 or 10-00 p.m. Co-accused Arshad Saleem arrived in the said office after returning back from Islamabad for collecting some documents and thereafter this defence witness came to know that the accused was got falsely implicated in some case. Another D.W. Muhammad Farooq, a retired Brigadier of Pakistan Army, deposed that he was posted as Director in the Mujahid Force at Rawalpindi, GHQ since the year 1995 till the year 1999, and further that acquitted accused Arshad Saleem had gone to him at Rawalpindi on 21-11-1998 and then had lunch with the said defence witness in between 1-00 p.m. To 3-00 p.m. At his residence, where the said accused informed him that he had to return back to Karachi on the same day by the evening flight. As stated above, the learned trial Court acquitted the said co-accused with the observations that, admittedly, heroin powder was. Not recovered from his possession, which was recovered from the possession of appellant Syed Karim, though it was brought by him for delivery to acquitted- accused Arshad Saleem; that word of accused Syed Karim alone against accused Arshad Saleem (who was to receive the said heroin powder from Syed Karim) in the absence of proof that accused Syed Karim ever visited accused Arshad Saleem and without any independent corroboration was not sufficient to prove the case against co-accused Arshad Saleem; that the evidence of D.W.
4. Anisur Rahman Qureshi and Muhammad Farooq, retired Brigadier, coupled with air ticket Exh.D/8, the passengers list, (who travelled by air, showing the name of accused Arshad Saleem) could not be ignored conveniently, thus learned trial Court observed that prosecution failed to prove the case against acquitted accused Arshad Saleem and that appellant Syed Karim was found in possession of 10 Kgs. Of heroin powder, and was, therefore, awarded the above stated sentence.
5. Hence this appeal, filed by him. Learned counsel for the appellant has assailed the impugned conviction and argued that while learned Judge disbelieved the case against co-accused Arshad Saleem and acquitted him of the charge, he failed to extend the same kind of benefit of doubt to the appellant, though the evidence is same against both the accused. More particularly when the State has felt satisfied with such a judgment of acquittal recorded for the said co-accused, that though learned trial Judge impliedly held that the co-accused was involved due to dishonest/mala fide investigation yet he erred in law by convicting the appellant on the basis of very same dishonest investigation without there being any independent evidence to support the recovery of heroin powder from the appellant, and that the case property, except the samples, has been destroyed without such competent orders of the trial Court, which fact would never confirm the fact that the whole property involved in the case was heroin powder, and thus the conviction under section 9(c) of the said Act is illegal; further that the learned trial Judge failed to appreciate the defence evidence properly. Which resulted in the illegal conviction of the appellant, and that the evidence produced by the prosecution is not free from the material contradictions. Learned counsel further argued that the prosecution failed to produce a copy of station diary of ANF Police Station to prove that spy information was received by the ANF Officials; further that 'many people would have collected at the police during alleged recovery anti arrest, and also during the time when the appellant was in custody and ANF Official allegedly kept on waiting for arrival of the acquitted co-accused, but none of such persons of the locality was made to act as Mashir; that it does not appeal to the reason that the acquitted accused having reached the appellant to receive the delivery of the heroin powder, but found him in custody of the officials of ANF who were in official uniform and with official police mobile vehicle standing by their side, yet he would stop voluntarily and surrender without attempting to escape away.
6. It is further argued that in the cross-examination Mashir Farooq Ahmed, S.-I. Deposed that 'we were standing after signal on the backside of D.J. Science College towards Pakistan Chowk' against the version of complainant S.-I. Sajjad Ali, who deposed the spy pointed to one person who was standing near wall of D.J. Science College on the road known as Dr.Ziauddin Ahmed Road near roundabout and thereby Mashir gave a changed scene of arrest of the appellant and recovery of the heroin powder ' from possession of appellant, which has further rendered the entire case of the prosecution as doubtful; he has quoted PLD 2001 Kar. 369 'Ali Hassan v. State' wherein a learned D.B.
7. Of this Hon'ble Court observed to the effect that exception of section 103, Cr.P.C., in cases under section 25 of Control of Narcotic Substances Act, 1997 could give a legal technical support to the admissibility of the evidence of official witnesses, but it would not make them reliable, with a further observation that "man could not he made moral through legislation, and that evidence of such official witnesses should always be examined keeping in view the fact that in a society with the level of moral values that unfortunately prevails, a subordinate official is seldom A expected to tell the truth in deviation of express or implied instructions of his superiors'; further that prosecution has failed to prove that any such property was ever recovered from the possession of the appellant, which was admittedly not produced in the trial Court at the time of record of the evidence of the prosecution witnesses excepting the alleged samples, and not even the bag, wherefrom, heroin powder was allegedly secured. Learned counsel has further argued that the Investigating Officer did not care to investigate and to produce evidence as to whether or not both the accused were having any link/connection, so that it could be presumed that the acquitted accused had settled it in advance to receive delivery of the heroin powder from the present appellant at the alleged place of recovery, and such necessary evidence having not come on the record, the prosecution case has further become doubtful; that the samples of the allegedly secured material were dispatched to the Chemical Examiner with inordinate delay without any explanation for the same, that the report of Chemical Examiner bears interpretation and overwriting thereby making its genuineness doubtful; it further contradicts the colour of the samples dispatched to the Examiner by Investigating Officer, and those received in the Office of Chemical Examiner, which renders it impossible to place any reliance thereon. Learned Special Prosecutor has replied that the present Bench has already observed in the judgment recorded in Criminal Appeal No, 157/2001 'State v. Sardar Pervaiz Akhtar' that non- compliance of placing certificate of destruction of case property on the record of the case, is merely an irregularity curable under section 537, Cr.P.C. And not grave in nature so as to destroy/demolish the entire recovery made from the possession of the accused/appellant. He has repelled the arguments of learned counsel for the appellant and has placed reliance on case-law reported in PLD 1990 SC 1176 (C) (F), 2000 PCr.LJ 755 (part II head note), 2001 SCMR 36, 2000 PCr.LJ 1975, 1999 SCMR 1367, 2002 PCr.LJ 976; with respects, facts and circumstances of the said cases are distinguishable, each case of the prosecution is to be decided on its own merits and circumstances surrounding thereto, and findings/observations recorded in earlier cases are not necessarily to be followed in other cases. Admittedly, the State has not filed any appeal against the acquittal awarded to co-accused Arshad Saleem vide impugned judgment, and thereby presumption of law would be that the State has accepted the reasons for such an acquittal recorded by learned trial Court in the impugned judgment to the effect that no heroin powder having been recovered from him and learned trial Court rightly having believed the defence evidence furnished by D.W. Muhammad Farooq Awan, a retired Brigadier of Pakistan Army, to the effect that acquitted accused, Arshad Saleem, had gone to him at Rawalpindi on 21-11-1998 while this defence witness was posted as Director in Mujahid Force at General Headquarters, Rawalpindi and had invited the said accused to have lunch with him at his residence, and they both actually had lunch there at 1-00 p.m., whereafter the acquitted accused left the residence of the said D.W. At 3-00 p.m., informing him that he had to return back to Karachi on the same day by the Evening Flight. So also; the learned trial Judge believed and accepted the Air-Ticket, produced by the said co-accused in defence evidence to be genuine and correct whereby he had travelled by air from Islamabad to Karachi on the said date viz. 21st November, 1998.
8. Thus, the prosecution evidence stands disbelieved to the effect that the said acquitted accused arrived at the very same place in a motor car where the present appellant was allegedly arrested by the complainant party; the evidence against the present appellant and the acquitted accused is so closely connected that if one part of the evidence is disbelieved against one accused, then the remaining part thereof gets adversely affected, for the reason that present appellant cannot be believed to have arranged with acquitted accused to reach the place of arrest and recovery of heroin powder, only to deliuer/hand-over the same to the above said acquitted accused, who was not available at Karachi and was present at Rawalpindi, and it is not possible to believe that he could make the present appellant to reach the place of alleged recovery of heroin powder, thus, there is no case against the present appellant for his being in possession of heroin powder as alleged by the prosecution (for its delivery by him to the acquitted accused). Moreover, the appellant has pleaded and has produced evidence to prove that one Ayoob son of Fareed, with whom he had prior business partnership relations and against, whom an amount of Rs, 5 lacs was outstanding to be paid to the appellant, called him at the 'Siemens Chowrangi Korangi' on the pretext of payment of the said amount to him, but was got falsely implicated on his arrival at the said place.
9. Learned counsel of the appellant further rightly argued that Capt. Leghari of Pakistan Army was with the complainant party who had allegedly supervised the recovery proceedings of heroin powder from the possession of the appellant, yet he is not examined by the prosecution in support of its case, though the report of the process-server is that he stands transferred to his parent department viz. Pakistan Army and is on duty, and that presumption of law to be gathered from such circumstances would be that had the said witness been examined, he would not have supported the case of the prosecution against the appellant, and that there being no evidence in rebuttal of such a presumption of law, it is to be given conclusive effect accordingly. Learned counsel has assailed the alleged recovery of the heroin powder from the possession of the appellant on further ground and rightly so, that the property was not produced before the trial Court, excepting the samples, allegedly taken out at the time of recovery thereof, and other samples allegedly secured before the case property was directed to be destroyed, but without any such notice and without affording any such opportunity to the appellant of being heard; that even the ragzine bag allegedly recovered from the possession of the appellant, wherefrom the herbin powder was secured, was not produced in the trial Court and was destroyed without any plausible reason and that section 516-A, Cr.P.C., does not authorise the trial Court to direct for the destruction of the said ragzine bag, which was necessarily to be produced before the trial Court and having destroyed the same illegally, benefit is necessarily to be awarded to the appellant of the doubt of non-existence of such ragzine bag, with other alleged property. Section 516-A Cr. P.C., reads as under: "516-A. Order for custody and disposal of property pending trial in certain cases.---When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry to trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order to be sold or otherwise disposal of: Provided that if property consists of explosive substances, the Court shall not order it to be sold or handed over to any person other than a Government Department or officer dealing with,' or to an authorized dealer in such substances: 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 (11 of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.0.4 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 any inquiry or proceedings in relation to such offence before any authority or Court." He has rightly argued that the appellant had a right to see the alleged recovered property during the trial of the case and if the trial Court found any necessity to direct for destruction of the said property, then under the above stated facts and circumstances, the appellant was entitled to have a written notice issued by the trial Court so as to be afforded with due opportunity of being heard; had appellant raised any objection against such destruction of the material by taking a plea that it did not comprise of any narcotic/intoxicating material, the trial Court was thereby under a heavy duty, under the peculiar facts and circumstances of this case, to have referred all such recovered material to the Chemical Examiner for its analysis to bring it on the record as to whether the said material was heroin powder or not, and further that having not done so, the appellant stands seriously prejudiced, and a fair trial was not held in the case. In this regard, observation recorded by Hon'ble Supreme Court of Pakistan in 2003 SCMR 54 (Ali Muhammad and another v. The State) at page 58 needs to be reproduced: "The appellants also did not pray before the trial Court or High Court that entire case property be sent to the Chemical Examiner for report as to challenge that entire case property was not narcotic substance/drug."
10. This observation gives a right to the accused to make a prayer before the trial Court as well as .Before this Court for referring the entire case property, allegedly recovered from him to the Chemical Examiner for report as to whether it was or was not narcotic substance/dreg under the above-stated circumstances of this case; the property has been illegally destroyed by the trial Court without issuing any such notice to him and without affording him due opportunity of being heard, he thereby stood deprived of making any such request either before the trial Court or before this Court. Mr. Shoaib M. Ashraf, learned Special Prosecutor for Anti-Narcotic Force has conceded that the trial Court did not pass independent order in this case for destruction of the case property and instead a general order in a number of cases was passed for destruction of various properties of the cases, further that neither any such notice was issued to the accused/appellant nor he was ever heard as to whether he had any objection against such destruction of allegedly recovered heroin powder, learned Special Prosecutor has further conceded that neither any Magistrate was specially deputed by the trial Court to supervise the destruction process of the case property nor any such certificate is available on the record of this case to say that the provisions of section 516-A, Cr. P.0 were complied with in letter and spirit. Learned Special Prosecutor has drawn our attention to a case decided by this Bench bearing Criminal Appeal No, 157/2001 'Sardar Pervez Allah Ditta v. The State' and has argued that the trial Court had not placed the certificate of destruction of the recovered narcotic material in the said case and this Bench had recorded a finding that it was an irregularity which stood cured under section 537, Cr. P.C. A careful perusal of the said decided case indicates that the facts and circumstances thereof are different from those of the case in hand, inasmuch as that part story of the prosecution in this case stands disbelieved by the trial Court and the State has not preferred any appeal against the acquittal recorded by the trial Court for the co-accused, and further that the appellant is seeking the benefit of such an acquittal by further specifically pleading that case against him also stood disbelieved, when such a finding was recorded in favour of the acquitted accused; further, each case is to be decided on the basis of peculiar facts and circumstances surrounding thereto and the decision recorded in one case cannot be taken as a definite precedent for the purpose of deciding other cases.
11. In short, section 516-A, Cr.P.C. Read with above-quoted observation of Hon'ble Supreme Court of Pakistan gave a valuable right to the appellant to object against the destruction of the allegedly recovered property from his possession and having not been issued such a notice and not been afforded with due opportunity of being heard, he thereby stands seriously prejudiced more particularly for one more reason, viz. Report of the Chemical Examiner which mentions that four samples received in the office of the Chemical Examiner were of off white colour while remaining six samples were of light brown colour, whereas the complainant and Mashir have deposed in the trial Court that six bags allegedly recovered from the possession of the appellant were containing brown heroin powder, while remaining four bags allegedly contained white heroin powder; this report also bears cutting, over- writings and interpolations therein, and otherwise also, its contents are not free from doubt; so also, time of arrest of appellant mentioned in such Mashirnama is different than the one deposed to by the mashir of arrest. Learned counsel has rightly placed reliance on the above-quoted observations recorded in Ali Hassan v. The State (PLD 2001 Kar. 369). So also, it is now well-settled principle that where a single circumstance creates a doubt in prudent mind, its benefit has to be given to the accused not as a matter of grace but as a matter of right. If any case-law be needed then reference may be made to 1995 SCMR page 1345 'Tariq Pervez v. The State'. In the absence of independent witness, the appellant was entitled to benefit of doubt and learned trial Court was not justified to record the impugned judgment of conviction against him, consequently, this appeal is allowed and impugned judgment is set aside, appellant is acquitted of the charge and shall be released forthwith if not required in any other custody case.