2017 PLP 52 (YLRN)

MOHAMMAD IBRAHIM KHAN, J.

This judgment is outlined to give a summary of disposal and decide Cr. Appeal No. 33-P/2014 Mishal Khan alias Misal Khan v. The State and Cr. Appeal No.75/2014 Zahir Shah v. The State. Both these appeals emanate of a common judgment dated 09.01.2014 delivered by Kashif Nadeem learned Additional Sessions Judge/JSC, Peshawar whereby for all the reasons mentioned therein it was held, prosecution on the basis of evidence succeeded to have brought home the charges and while found them guilty under sections 9(c), Control of Narcotic Substances Act, 1997 for which these both appellants were charged.

2. The blow off sentence awarded to both these appellants each to undergo imprisonment for life and a fine of Rs. 30,000/- in default to undergo further imprisonment for six months. These appellants were however extended the benefit of section 382-B, Cr.P.C.

3. In both these appeals very much alike facts/law are identic and like two peas in a pod hence this singled-out judgment will decide the fate of both accused fellows Zahir Shah, Driver and Mishal alias Misal Khan being charged and faced the trial together.

4. Brief and very accordant facts as FIR speaks, the Customs Authorities on acquirement of the information that huge quantity of charas would smuggle via truck No. C-1769-Karak from Alaqa Ghair (Tribal Built) to Peshawar and onward to Punjab. Thereby the team leader Ahmad Ali Shah, Inspector Customs Mobile Squad No. 2 Peshawar under supervision of Deputy Superintendent laid picket on 13.08.2012 at Kacha Garhi Karkhano Market, Peshawar. After assume for whole night at around 2:00 am, the aforesaid truck coming from Jamrud side was caused to stop. On through and through search of its body it was vacuous containing nothing. But as the information was fly right and credible, the truck along with its driver and cleaner, the latter two of them disclosed their names as Zahir Shah and Mashal Khan alias Misal Khan were taken up to Customs House for safety measures deep down search. Amazing from the secret cavities made in the diesel tank 68 packets of charas weighing 80 kilograms gross in the presence of marginal witnesses and in accused themselves were recovered.

5. Supervene investigation initiated, drafting of Murasila, lodging of FIR, recovery memo, personal searches of accused, recovery memo's pertaining to National Identity Cards, inventory memos drafting of notices, recording of statements, of accused as well those of chemical analysis to the Director, Forensic Science Laboratory, applications for obtaining custody of accused and after investigation completed submission of challan before the Judge, Special Court.

6. After conclusion of a protracted trial lasted from the date of its institution 24.09.2012 till date of decision, it almost took fifteen months and sixteen days followed by conviction of both the accused appellants impugned herein. It is as contended by learned counsel for appellants one by one that when there is no evidence, however and whatsoever, on the record to show as to when the appellants were not in conscious possession of the charas being recovered from the secret cavities of the diesel tank, each of them cannot be convicted and sentenced to capital punishment because mere companion they were traveling by the truck. The names of each of the accused is not mentioned in the recovery memo which was prepared in the Customs House. In further say of the learned counsel for the appellants the recovery of contraband charas is chancy that neither each packet has been weighed nor the PW-3 have mentioned that whether the recovered charas was charas Pukhta or charas Gardah which was shown recovered in the instant case even it is not mentioned that whether the recovered charas were in solid form or in powder form. PW-1 Ahmad Ali Shah the Seizing Officer has not given the exact quantity to have been separated from each packet but has admitted that only little quantity has been separated for chemical analysis. This preeminent witness has even come under candid admission that he has not even recorded the statement of the official via whom the samples were sent to the Forensic Science Laboratory. While developing the argument both the worthy counsel sneeringly pointed towards inspection of truck without diesel tank under the request at the very opening session of the cross-examination.

7. Drawing attention of the ability to understand and reason over the statement of PW-2 Mumtaz FC, this witness of much importance is even unable to state that who recovered the contrabands from the tank of the truck. He does not even remember the weight of each packet and even cannot say whether there are sub slabs in each packet or not.

8. In entirety, arguments addressed were made believable thereby that the impugned judgment is the result of misreading and non-reading of evidence as the prosecution has put up its case on feeble shivering legs, ultimately falling off.

9. Repelling and up against learned counsel appearing for the State controverted that both the accused appellants are saddled with the most heinous crime of transporting charas in bulk weighing 80 Kilograms, they being in league with each other, are equally liable for the commission of offence for which they deserve deterrent punishment. In add of the run-in it is asserted that the Customs officials had no motive of their own to implicate these accused appellants falsely, plant recovery for no gains, thereby the charges of transportation of charas fully stands proved beyond shadow of doubt hence the impugned judgment is not open to any exception thereby the penalty require to be upheld.

10. With all valuable assistance and in the light of submission before us, we have delved the record of this case with utmost care and caution.

11. It is indeed a fact admitted need not to be proved that even if 80 Kilograms charas contained in 68 packets have been recovered from the secret cavities made in the fuel tank, it is mandatory that each and every packet on opening require weighment. An admission has come from the mouth of Seizing Officer, "I have not weighed each packet separately". In addition "I cannot give the exact weighment of contrabands produced in the Court to day as the same was not in my custody." The witness continued his statement by saying that "I cannot say whether the case property produced today if weighed and found less or more than 80 Kilograms would be the case property of the instant case or not". This witness of paramount importance has not even been confident to say whether the recovered charas was charas Pukhta or charas Gardah which was shown to have been recovered in the instant case. There is also an admission that a little quantity was separated from each packet but the exact weight of each quantity of narcotics separated from each packet has neither been mentioned nor shown. Besides there is a clean breast admission to the extent that "it is correct that sample from each packet has not been sent for laboratory."

12. Contentions of learned counsel for the appellants that when the recovery memo is silent with regard to the names of each accused bear over the recovery memo Ex.PW-1/1 this aspect cannot be ignored particularly when PW-1 Ahmad Ali Inspector, the Seizing Officer has categorically admitted, "It is correct the recovery memo Ex.PW-1/does not bear the name of any of the accused, even the name of driver or conductor are not mentioned in the recovery memo."

13. When the trial Court was requested for inspection of the truck whether it is fit or suitable in the empty place in the fuel tank in the truck, the Court observation has come out that "the said tank was tried to be fitted in the empty place for fuel tank in the truck but it was hardly fittable there even by an expert."

14. While reliance is placed in "Ameer Zeb v. The State (PLD 2012 Supreme Court 380), "Gul Mat Shah v. State" (2013 PCr.LJ 1773), "Gul Noor Ali v. State" (2015 SCMR 279) and "Mst. Nasreen Bibi v. State" (2014 SCMR 1603). In similarly determination of the legal provisions had come up that in such like scenario such circumstances created serious doubts in the prosecution cases, the benefits of which were extended to the accused.

15. We are of the firm view that the learned Special Judge of the trial Court in detail findings given in the impugned judgment had never considered these submissions in the light of dictums of Hon'ble Apex Court in the given circumstances and in view of the admissions of Seizing Officer coupled with the admission on the part of the recovery witness of the recovery memo, wherefore making this case for acquittal; therefore, conviction of each accused is set aside. They be placed at liberty if not required in any other case. The case property shall be kept intact till the filing of appeal if advised. Otherwise conclusion of trial of the absconding accused Khan Alam who is supposed to be the owner of the contraband charas and the truck carrying the same. Perpetual warrant of arrest be issued against him and on his arrest be tried for his wheel of fortune. JK/323/P Appeal accepted.