2011 MLD 708 (PLP)

MAZHAR ALAM KHAN MIANKHEL, J.

Through this single judgment we intend to dispose of Criminal Appeals bearing Nos.416 and 422 of 2009 arising out of the same judgment/order dated 7-8-2009 passed by Additional Sessions Judge-VII/Judge Special Court, Peshawar, who convicted appellants Mamraiz, Anwar Zaib, Lugman alias Dabal and Mairuj-ud-Din under section 9(c) Control of Narcotic Substances Act, 1997 and sentenced them to life imprisonment with a fine of Rs.2,00,000 each or in case of default in payment of fine, to further undergo two months S.I. each. Also convicted the said appellants under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 and sentenced them to two years R.I. with a fine of Rs.10,000 each or in default thereof to further undergo six months S.I. Benefit of section 382-B, Cr.P.C. was extended to all the appellants.

2. Shortly narrated facts of the case are that on the direction of police high-ups, a police party comprising of D.P.O. Cantt, ASP Police Station Hayatabad along with S.H.Os of different Police Stations and heavy police contingents raided on Kacha Cabins near Karkhano Check-post within the jurisdiction or Police Station Hayatabad, Peshawar, who arrested the appellants on the spot while the others nominated in the F.I.R. made good their escape from the spot. The raiding party recovered charas garda weighing 14 Kgs, charas pukhta 46 Kgs, heroin 9-1/2 Kgs, 396 bottles of imported liquor of different qualities and a total of 440 Kgs or local made liquor. Besides the above said recovery, counterfeited and forged currency, illicit arms and ammunitions and other articles fully detailed in the F.I.R. were also recovered and a case was registered vide F.I.R. No.50 dated 19-1-2007 Police Station Hayatabad against the appellants along with other co-accused, who managed to escape front the scene.

3. That after registration of the case, the same was investigated and then complete challan was submitted in the Court and the learned Additional Sessions Judge-VII/Judge Special Court, Peshawar after complete trial of the case, acquitted some of the accused nominated in the case and convicted and sentenced the appellants as noted above. Hence the present connected Criminal Appeals.

4. Learned counsel for the appellants while claiming the innocence of the appellants submitted that the appellants have falsely been implicated in the case. Nothing was recovered from the immediate possession of the appellants and similarly nothing was allegedly recovered at the pointation of the appellants. The alleged recovery of Contrabands along with other articles can in no way be attributed to the appellants. The prosecution has also failed to connect the appellants in any manner with the alleged recovery. Further submitted that there is nothing on the record to suggest that any of the cabins from where the alleged recovery has been shown, was either owned or possessed by any of the appellants. So, in absence of any sort of evidence connecting the appellants with the recovery of the alleged incriminating articles their conviction by the trial Court in such a state of affairs, is against the law and the evidence available on the record and requested for their acquittal by acceptance of their appeals.

5. As against that, the learned State Counsel submitted that the appellants were apprehended at the spot and recoveries were also made from the cabins in possession of the appellants and the other co-accused some of whom are still at large which prima facie connect them with the commission of offence they are charged with and the prosecution at the time of trial has proved the recovery of contrabands from the possession of the appellants and the learned trial Court after considering the entire evidence brought on record has rightly convicted the appellants.

6. We have heard the learned counsel for the parties and perused the record which would reveal that the raiding party along with a heavy contingents of the police raided certain cabins situated near Karkhano Market and then the appellants as per version of the prosecution, were arrested from the spot. The contents of murasila and recovery memo would reveal that all the alleged narcotics, liquor and other incriminating articles were recovered from different cabins situated at the spot and then specially the recovered narcotics were remixed. The overall weight shown in the murasila is after remixing of the incriminating articles. Then front the overall recovery, 4 gram each were separated from charas garda and pukhta 2 grams from heroin, 4 milliliter from each bottle of imported liquor, and 4 milliliter from locally made liquior were separated for chemical analysis. The sane after the chemical analysis by the FSL; tested positive.

7. The prosecution to prove guilt of the appellants produced P.W.1. Liaqat Ali Armourer, Police Line, Peshawar and P.W.2 Syed Farosh Senior Assistant, Currency Officer, State Bank of Pakistan, Peshawar, but the said two witnesses had no nexus with the recovery of narcotics. P.W.3 Naeem Shah Khan S.-I., who investigated the case, P.W.5 Bismillah Jan S.-I. Traffic Police, Peshawar, who was the marginal witness of the recovery memo Exhs.PW.5/1 and PW-6 Fazal Muhammad Khasi D.S.P. Rural, Daudzai, Circle, Peshawar.

8. None of the above said witnesses was able to connect any piece of alleged recovered contraband with any of the appellants and similarly none of them was able to say that how much quantity of incriminating articles was recovered from each of the appellants. The I.O. in his statement admitted that he has not recorded statement of any of the person, who was carrying business adjacent to the said market which was raided upon. Though he has shown the places and points in the site plan where the appellants and the, police party were present but on the other hand he has admitted that the incriminating articles were recovered during the operation from different cabins which were demolished after the operation and he was unable to nominate any of the appellants for any of the alleged incriminating articles. He was also unable to say about the ownership/possession of the cabins whether it belonged to the present appellants or not. The I.O. has also admitted that the appellants were carrying their business in Sittara Market which was a separate market adjacent to the cabins/market raided by the police party.

9. Perusal of the evidence recorded by the said P.Ws. would reveal that no doubt recovery of contrabands including other incriminating articles was effected from the spot by the police but the same would not even suggest that what was the actual recovery from each of the appellant or other co-accused. An omnibus recovery without any specific evidence cannot be attributed to any one of the appellant and they similarly cannot be held liable for such recovery effected from different cabins. The evidence on the record is also deficient that what was the' actual recovery from each cabin. If such recovery from different cabins is believed then there must be some convincing evidence reflecting the ownership or even the possession of any one of the appellant over the cabins from where the recovery was effected or they had any business of the type over there. So, in the given situation, one cannot base conviction of the appellants on such type of evidence and similarly cannot rely on such type of recoveries made by the police during raid.

10. So, in this view of the matter, we are of the considered view that though police has shown a huge quantity of incriminating articles which were tested positive by the F.S.L. but nothing of the same can be 'attributed to the present appellants. Thus, we have no option but to accept these connected Criminal Appeals, set aside the convictions and sentences imposed upon the appellants vide impugned judgment dated 7-8-2009 and they are acquitted from the charges levelled against them. They be released from custody forthwith if not required in any other case. H.B.T./296/P Appeal accepted.