2014 P Cr (PLP)

DR. AGHA RAFIQ AHMED KHAN, C.J.

This Jail Criminal Appeal is directed against the judgment dated 1-10-2013 passed by Judicial Magistrate, Daharki, whereby the appellants have been convicted for the offence punishable under Article 3 Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to suffer R.I. for three years with fine of Rs.10,000 each or in default whereof to suffer S.I. for four months. Benefit of section 382-B, Cr.P.C. was extended to the appellants.

2. Case of the prosecution, in brief, is that on 22-5-2011, Excise Inspector Ahmed Khan Rind (P.W.1) received spy information that narcotics substance is being transported on Truck No.DG-3333 which would cross Sindh-Punjab Border. Consequent to such information he (P.W.1) along with ETI Hassan Ali Dashti and other subordinate staff proceeded to Excise Check Post near Sindh Punjab Border, Kamoon Shaheed, Taluka Ubauro, District Ghotki. At about 8-00 a.m. they noticed the pointed truck coming from Punjab side to which they got stopped at the Check Post. Two persons were sitting in the truck. On query, the driver disclosed his name as Abdul Rauf Rajpoot while the other disclosed his name as Muhammad Irfan and claimed to be the cleaner of the truck. Complainant (P.W.1) conducted body search of appellants and secured cash of Rs.2,000 and N.I.C. from appellant Abdul Rauf and cash of Rs.600 from appellant Muhammad Irfan. He also secured transport receipts (Bilties), Duplicate Registration Book of the Truck, and duplicate copy of driving licence from the driver's cabin of the truck. On further checking, the excise party found a number of articles loaded on the truck as per receipts/Bilties of different transport. On unloading those articles, the Excise Police found 40 plastic bags containing cannabis (Bhang) hidden under the said articles which were without any Bilty/transport number. The bags were weighed which contained 20 kilograms of Bhang, each. The complainant (P.W.1) separated 500 grams of Bhang from each bag and sealed the same as samples for sending them to the expert and also sealed the remaining substance separately in presence of Mushirs EC Hussain Bux and EC Khalid Hussain. Accordingly case under Articles 3/4 Prohibition (Enforcement of Hadd) Order, 1979, was registered against appellants.

3. After completion of the investigation the appellants were challaned in Court to face trial. On 21-6-2011, the learned Judicial Magistrate Daharki, framed charge against the appellants under Article 3, Prohibition (Enforcement of Hadd) Order, 1979, to which they pleaded not guilty and claimed for trial.

4. In order to prove its case the prosecution examined two witnesses namely Excise Inspector Ahmed Khan Rind (P.W.1) who was complainant as well as the Investigating Officer of the case and Excise Constable Hussain Bux Soomro (P.W.2) who was the member of raiding party and acted as Mushir of recoveries.

5. On conclusion of the prosecution evidence, statements of the appellants under section 342, Cr.P.C. were recorded by the learned trial Court on 21-9-2013 wherein they denied the prosecution allegation and pleaded innocence. Neither they opted to make statement on oath nor produced any witness in their defence in terms of section 340(2), Cr.P.C.

6. The learned Judicial Magistrate Daharki after hearing arguments of both parties and on appraisal of evidence convicted and sentenced the appellants as stated above.

7. I have heard the learned counsel for the appellants as well as the learned Deputy District Prosecutor for the State and have gone through the material available on record.

8. Mr. Muhammad Zeeshan Adhi, Advocate for the appellants has mainly argued that there is clear violation of section 103, Cr.P.C. in this case, as no private person was associated to act as Mushir or even tried by the raiding party. He has relied on Badar-uz-Zaman v. The State (PLD 1987 FSC 9); Abdul Waheed v. State (1999 PCr.LJ 1595); Javed v. State (1994 PCr.LJ [Karachi] 954); Abdul Majid v. State (1996 PCr.LJ [Karachi] 309); Nek Muhammad v. State (PLD 1995 SC 516); Naik Muhammad v. State (2000 MLD 2003 [FSC]); Ghani-ur-Rehman v. State (1996 PCr.LJ [Pesh] 347); State v. Bashir (PLD 1997 SC 408) and Noor Hussain v. State (1996 PCr.LJ 181).

9. Mr. Javed Akhtar Qureshi, Deputy District Public Prosecutor for the State has supported the judgment and has argued that the police witnesses are as good witnesses as anybody else unless there is a mala fide attributed to them. According to him, all the prosecution witnesses have supported the case, therefore, the appellants were rightly convicted by the trial Court.

10. I have given full consideration to the arguments submitted by the learned counsel for the parties and have gone through the above case-laws. Admittedly, the complainant/Excise Inspector Ahmed Khan Rind (P.W.1) had prior knowledge on 22-5-2011 that a Truck bearing No.DG-3333, containing contraband substance would cross the Sindh Punjab border but in spite of that he did not associate any private person to act as Mushir. Even, he has admitted in his cross-examination that it was morning time at about 6-00/6-30 a.m. when he received the spy information and different people were present there but he did not call anybody to act as Mushir. Looking to these facts and circumstances and the above case-laws, I am of the opinion that the prosecution has failed to prove the charge beyond any reasonable doubt against the appellants, therefore, the appeal is allowed. The appellants are acquitted of the charge by giving them benefit of doubt. They be released forthwith if not required in any other custody case. MWA/15/FSC Appeal allowed.