2011 PLP 1483 (YLR)

AMIR HANI MUSLIM, J.

By this common Judgment we intend to dispose of Criminal Appeal No.231 of 2009 and Criminal Appeal No.240 of 2009, as they arise out of the impugned Judgment dated 1-10-2009 passed by Special Court No.1 (CNS), Karachi, in Special Case No.103 of 2008 whereby the appellants were convicted and sentenced to suffer R.I. for seven (7) years and fine of Rs.50,000 each and in default of payment of fine to Suffer further S.I. for three (3) months each, while acquitting co-accused Muhammad Moin, Faqeer Hussain and Darwesh, extending them the benefit of doubt.

2. We while hearing these Criminal Appeals have ordered that Criminal .Acquittal Appeal No.251 of 2010, filed by the State against the impugned Judgment, be tagged for hearing in order to avoid any conflicting Judgment, which was tagged with these proceedings and we after hearing the same has dismissed it in limine by our. short order dated 18-8-2010.

3. Brief facts of the case are that on 21-8-2008 officials of ANF received information that one person Khan Muhammad, a customs servant, is involved in Narcotics business along with his associates Muhammad Moin and Faqeer Hussain and today they will deliver Narcotics to Noor Alam and Darwesh in Toyota Grey Color Car bearing Registration No.AFW-199. Accordingly, S.-I. Muhammad Afzal of ANF reached Zaheer Hotel, Askari Park, Main University Road; Karachi. At about 2000 hours the said car reached and stopped there in which three persons, namely, Muhammad Moin, Faqeer Hussain and Khan Muhammad, were sitting. The latter was sitting on the driving seat. Thereafter two persons Darwesh and Noor Alam came on a motorcycle bearing Registration No.KDI-8093. Khan Muhammad delivered one blue colour shopping bag to accused Noor Alam who was sitting behind accused Darwesh on the motorcycle. In the 'meantime, the ANF officials apprehended all the accused persons and on search recovered 5 Kg Charas from the blue color shopping bag while on 'the pointation of accused Khan Muhammad 2 Kg Charas was also recovered beneath the driving seat of the car. The ANF officials prepared mashirnarna of arrest and recovery and sent the recovered Charas to Chemical Analyzer, who gave positive report. On completion of the investigation, challan was submitted.

4. At the trial, charge was framed against the accused persons as Exhibit 2, their plea was recorded as Exhibits 3 to 7, wherein they pleaded not guilty and claimed to be tried. The prosecution examined S.-I./I.O. Muhammad Afzal, Exhibit 8, who produced memo of arrest, recovery and personal search as Exhibit 8/A, F.I.R. as Exhibit 8/B and Chemical Report as Exhibit 8/C. After examination of mashir HC Ali Sher, Exhibit 9, the prosecution closed its side. Thereafter statements of the accused under section 342, Cr.P.C., Exhibits 10 to 14, were recoded in which they denied the prosecution story and claimed innocence. The trial Court after hearing the learned Counsel for the ANF and accused persons acquitted respondents Muhammad Moin, Faqeer Husain and Darwesh while convicted Noor Alam and Khan Muhammad, as mentioned hereinabove.

5. Mr. Aamir Mansoob Qureshi, the learned Counsel for the appellant in Criminal Appeal No.240 of 2009, has contended that admittedly the recovery of the narcotics was affected from thickly populated area but the ANF officials did not call anyone from the public to act as mashir and thus violated the provisions of section 103, Cr.P.C. The learned Counsel has further contended that the trial Court has misread the evidence on record in as much as P.W.1 in his cross-examination has admitted that engine and chassis number of the car are different then the number mentioned by him in the mashirnama, therefore, the trial Court has wrongly convicted the appellant. The learned counsel for the appellant next contended that the prosecution has examined two witnesses and both were ANF officials, whose evidence cannot be relied upon for convicting the appellant. The learned counsel for the appellant has further submitted that the trial Court on the same set of evidence convicted the appellant while giving benefit of doubt to other three co-accused persons. He lastly submitted that the prosecution has failed to prove its case beyond reasonable doubt and the impugned Judgment is perverse and is liable to be set aside.

6. Mr. Ajab Khan Khattak, learned counsel appearing for appellant in connected Criminal Appeal No.231 of 2009 has adopted the arguments of Aamir Mansoob Qureshi, Advocate.

7. On the other hand, the learned counsel Special Public Prosecutor has supported the impugned judgment. She has contended that police officials are also good witnesses and their testimony cannot be discarded merely for the reason that they were employees of the ANF, Police. According to her by virtue of section 25 of the CNS Act, Act, non-citing of a public witness is not fatal to the prosecution case as section 103, Cr.P.C. has been specifically excluded from its application in cases of narcotics. She has further contended that both the prosecution witnesses have unanimously supported the prosecution version regarding recovery of narcotics.

8. We have heard the learned counsel and have perused the record. The p prosecution has examined only two witnesses i.e. S.-I./I.O. Muhammad Afzal, Exhibit 8 and mashir HC Ali Sher, Exhibit

9. It has come in the evidence that the car, claimed to have been used for transportation of the Narcotics and from which 2 Kg charas was recovered, was owned by one Imam Bux. The prosecution has neither examined Imam Bux nor has offered any explanation for non-producing and or non-examining Imam Bux.

9. There are discrepancies in regard to the chassis number of the car, alleged to have been used in the crime. The Complainant in his evidence has given different chassis number than the one mentioned in the mashirnama. Interestingly, neither the said car nor any running part of it was produced in Court during evidence. In absence of such material coupled with the contradiction in regard to the chassis number of the car, the impugned Judgment is not sustainable in law. Burden is upon the prosecution to prove charge against the accused persons beyond reasonable doubt and law presumes an accused person innocent till proved guilty beyond reasonable doubt. There are material contradictions in the depositions of the two prosecution witnesses. The evidence of both the prosecution witnesses on the seizure of narcotics/sample secured from the spot has material contradiction, which is sufficient to hold that the prosecution has failed to prove the case against the appellants beyond, reasonable doubt, which has not been noticed by the learned trial Court while passing the impugned Judgment.

10. For the foregoing reasons, we by our short order dated 18-8-2010 have set aside the impugned judgment dated 1-10-2009 passed by the learned Special Judge, C. N. S. 1, Karachi in Special Case No.103 of 2008 and allowed the aforementioned Criminal Appeals. H.B.T./K-10/K Appeal allowed.