2013 PLP 2651 (YLR)

ABDUS SATTAR ASGHAR, J.

Sharaf-ud-Din Sheikh and Faheem Babar faced trial in case F.I.R. No.11 of 1995 dated 21-3-1995, in the offences under sections 9/13/15 of the Control of Narcotic Substances Ordinance 1995 and Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order 1979, registered at Police Station PNCB, Lahore. At the conclusion of the trial vide judgment dated 3-6-2010 learned Judge, Special Court (C.N.S.), Lahore acquitted them of the charges.

2. The State lodged this Criminal Appeal under section 48 of the Control of Narcotic Substances Act, 1997 against acquittal of the respondents vide impugned judgment dated 3-6-2010. The same was dismissed by this Court vide judgment dated 23-9-2010 in the following manner:-- "(2) Learned counsel for the appellant, in support of this appeal, submits that the respondents have been wrongly acquitted by the learned Judge, Special Court, Control of Narcotic Substances, Lahore; there is incriminating evidence available on the record against the respondents; Faheem Babar, who is a notorious smuggler and remained in Jail in connection with six other cases of similar nature has committed this offence. He submits that there is incriminating evidence against both the respondents in the form of statements of the witnesses namely Lt. Col. Muhammad Younas and Dr. Waqar Hussain, Magistrate. However, he submits that Lt. Col. Muhammad Younas has left Pakistan for America, while Dr. Waqar Hussain, Magistrate is not available and warrants of arrest were issued against him. He further submits that the case was registered in the year, 1995. He is pressing hot while arguing the case that 6581 Kgs Charas was recovered. (3) We have heard learned counsel for the appellant at a great length and perused the record. (4) We are not impressed with the submissions made by the learned counsel for the appellant. We have gone through the impugned judg-ment, which is quite in accordance with law. Moreover, when an accused is acquitted by a competent court, double presumption of innocence is attached. No case for interference by this Court in the impugned judgment is made out. This appeal stands dismissed." The appellant/State being dissatisfied with the above said order assailed it before the Hon'ble Supreme Court of Pakistan through Criminal Petition No.1022-L of 2010 converted into Criminal Appeal No. 329 of 2012 and allowed vide order dated 16-7-2012 and the case was remanded to this Court with the following observations:-- "(2) Marshaling of the facts in depth is not called for because on having gone through the relevant para of the impugned judgment, we were persuaded to question to Mr. A.D. Naseem, learned ASC for the petitioner and learned counsel appearing for the respondents as to whether the impugned judgment being non-speaking one is sustainable in the eyes of law. No doubt, the learned High Court while dismissing the appeal applied the principle namely double presumption of innocence in view of order of acquittal passed by the learned trial Court. As far as the principle of double presumption of innocence is concerned, there is no cavil to it, but at the same time this principle would only be attracted, if the Court on having discussed the evidence come to the conclusion that no piece of evidence has been left out and on the basis of evidence on record, learned trial Court rightly held the accused as innocent and not involved in the commission of offence. The High Court, under the circumstances, may have considered the factual as well as legal aspects of the case before applying the principle of double presumption of innocence in favour of the respondent. In this behalf, reference may be made to Ghulam Sikandar v. Mamraz Khan (PLD 1985 Supreme Court 11), wherein this principle has been elaborately discussed and highlighted by the superior Courts. (3) Under these circumstances, we are of the opinion that the case in hand deserves to be remanded to the learned High Court for re-writing of the judgment, keeping in view the material available on record. Accordingly, the listed petition is converted into appeal and allowed. The case is remanded to the High Court with the observation that let the learned High Court dispose of the same expeditiously, as early as possible preferably within a period of three months."

3. Epitome of the prosecution case as set-forth by Sheikh Sharf-ud-Din A.D., Group Leader ANF Lahore (respondent No.1) in his written complaint (Exh.PA) on the basis of which formal F.I.R. (Exh.PA/1) was recorded, is that on 20-3-1995 on receipt of spy information by the senior officers of ANF to the effect that Amjad and Shaukat have set up packing machines in the premises of Ghausia Sheller Bypass near Maulana Zafar Ali Khan Homoeopathic College G.T. Road Wazirabad City for purposes of sending narcotics abroad, he along with Abdul Sattar Inspector (P.W.3), Havaldar Sher Zaman (P.W.4) and other officials of ANF came to Ghausia Sheller and at about 2-00 a.m. night they broke the locks of the Ghausia Sheller and entered the premises; that they recovered 6581 Kgs. Charas along with packing machines and other sports goods as described in Exh.PA.

4. Record reveals that initially Sharaf-ud-Din respondent No.1 (DW-1) investigated the case. Thereafter the investigation was entrusted to Syed Hassan Ijaz Kazami Deputy Director ANF Lahore (P.W.15) and during his investigation Sharaf-ud-Din complainant was taken into custody as an accused on the allegation of aiding, abetting, facilitating his co-accused Faheem Babar etc. for commission of the offence. Faheem Babar accused (respondent) was also arrested in 1998. On completion of investigation, report under section 173 Cr.P.C. was submitted against the accused/respondent under section 9 read with section 15 of the Control of Narcotic Substances Ordinance 1995 as well as Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979. Charge was framed by the learned trial Court to which the respondents pleaded not guilty and claimed to be tried.

5. Prosecution produced as many as 17 witnesses to prove the charge. Muhammad Afzal Asim FIO (P.W.1) is scribe of the F.I.R. Exh.PA/1. Akmal Raza (P.W.2) is spy informer. Abdul Sattar Inspector (P.W.3) and Havaldar Sher Zaman (P.W.4) were members of the raiding party and recovery witnesses. Pervaiz Yousaf Moharrir Registry Branch Gujrat (P.W.5) produced before the Inspector ANF general power of attorney deed (Exh.PT) in favour of Muhammad Shaukat. Sarfraz Khan Manager UBL (P.W.6) stated about the account of Samina Kausar wife of Faheem Babar respondent/ accused. Sarfraz Khan Manager Melody Hotel Gujrat (P.W.7) stated about booking of a room in the hotel in the name of Amjad Hussain accused. Asif Quddus (P.W.8) an employee of Allied Bank verified that Form-E (Exh.PN) in the name of I.B.C. Company was forged and the company was not account holder of the bank. Walayat Ali Cheema A.S.-I. (P.W.10) stated that he investigated the case F.I.R. No.87 of 1995 and sent challan against Shaukat and Amjad. Subedar Aziz Ullah (P.W.12) was given the case property to be kept in safe custody in Malkhana. On 28-3-1995 he handed over 110 sample parcels containing Charas to Havaldar Abdul Karim for transmission to the office of Chemical Examiner Lahore. Muhammad Yaqoob Stenotypist to Deputy Director General ANF (P.W.13) produced personal service file of Sh. Sharaf-ud-Din. Ch. Muhammad Ismail Judicial Magistrate Lahore (P.W.14) had recorded the statement under section 164, Cr.P.C. of Muhammad Shaukat (Exh.PX), statement of Amjad Hussain (Exh.PY), statement of Riffat Nisar (Exh.PZ), statement of Jamshed Iqbal (Exh.PZ/1), statement of Gulzar Ahmad (Exh.PZ/2) and of Fazal Mehmood (Exh.PZ/3). Syed Ijaz Hussain Kazmi Deputy Director ANF Lahore (P.W.15) investigated the case. Rana Abad Ali Inspector (P.W.16) also partly investigated the case. Ghulam Haider Shah (P.W.17) driver of Sheikh Sharaf-ud-Din (respondent No.1) was declared as hostile and cross-examined by the prosecution wherein he stated that he did not know anything about this case. Ch. Muhammad Nawaz Additional Sessions Judge Depalpur (CW-1) the then Magistrate Section-30 Gujranwala under the orders of the learned District and Sessions Judge supervised the destruction and burning of case property/charas and prepared report dated 6-12-1995 (CW-1/1). Ijaz Ahmad Chaddhar, Advocate (CW-2) the then Senior Civil Judge/Magistrate Section 30, Gujranwala under the orders dated 19-11-1995 passed by the learned Sessions Judge, Gujranwala took samples of Charas and made into sealed parcels vide his report Exh.CW-2/1-2.

6. Learned D.P.-G. for the appellant/State has informed that Sharaf-ud-Din Sheikh respondent No.1 has already expired and he does not press this appeal to his extent. Therefore this appeal to the extent of Sharaf-ud-Din respondent No.1 stand abated.

7. Now we have to examine this appeal to the extent of Faheem Babar respondent only.

8. Faheem Babar accused/respondent in reply to the question "Why this case against you and why the P.Ws. have deposed against you" answered in the following words:-- "It is a false case. The P.Ws. have made false statement so far as my case is concerned."

9. Learned Law Officer for the appellant has lodged Criminal Miscellaneous No.2537-M/2012 in this appeal. This is an application under section 561-A of the Criminal Procedure Code, 1898 requesting for inclusion of additional grounds/evidence in appeal. It will also be decided along with this appeal.

10. It is argued by the learned Law Officer for the appellant/State that the learned trial Court has failed to appreciate the confessional statements under section 164, Cr.P.C. of Faheem Babar accused/respondent as well as co-accused Shaukat and Amjad Hussain and one Jamshaid Iqbal duly recorded by the learned Judicial Magistrate Lahore (P.W.14); that criminal antecedents of the respondent/ accused Faheem Babar placed on the record were also not taken into consideration by the learned trial Court; that the impugned judgment of acquittal to Faheem Babar respondent is arbitrary, perverse, based on misappreciation and non-reading of evidence causing miscarriage of justice; that the learned trial Court has acquitted the respondent/accused on the basis of minor and immaterial contradictions in the statements of the P.Ws; that the prosecution has proved the charge against the respondent to the hilt with the help of trustworthy and reliable ocular account and documentary corroborative evidence; that trivial and immaterial inconsistencies have no adverse bearing on the merits of the prosecution case; that acquittal of the respondent is illegal, based on misreading and non-reading of evidence violative to the settled principles of appreciation of evidence and liable to set aside.

11. Arguments heard. Record perused.

12. Learned Law Officer for the appellant/State has laid much emphasis on his argument that confessional statement under section 164, Cr.P.C. of Faheem Babar accused/respondent recorded by learned Judicial Magistrate (P.W.14) was not taken into consideration by the learned trial Court. In this regard suffice to say that the alleged statement is not produced by the prosecution in its evidence before the learned trial Court. Mr. Muhammad Ismail Judicial Magistrate (P.W.14) while appearing in the witness-box has verified the confessional statements of the co-accused but he has not mentioned about any such statement of Faheem Babar accused/respondent ever recorded by him under section 164, Cr.P.C. No reason is assigned by the learned counsel for the appellant for non-production of the said statement under section 164 Cr.P.C. of accused Faheem Babar in the prosecution evidence before the learned trial Court. Therefore, evidence not produced during the trial and never put to the accused/ respondent Faheem Babar in his statement under section 342, Cr.P.C. cannot be entertained as additional evidence at the appellate stage. Benefit of failure on the part of prosecution if any cannot be extended to the prosecution. Any such statement therefore cannot be read as prosecution evidence at this stage.

13. Prosecution case as set forth in the charge sheet is that contraband charas weighing 5833 Kgs. was recovered from the premises of Ghousia Sheller near by-pass Wazirabad District Gujranwala stored for smuggling to Holland in the cover of sports goods and packing of various other items. Prosecution has alleged that premises of Ghousia Sheller wherefrom the contraband Charas was recovered are actually owned by Faheem Babar and that one Jamshaid Iqbal a relative of Faheem Babar is the ostensible owner of the said premises. There is nothing on the record to show ownership of Faheem Babar accused/ respondent pertaining to Ghousia Sheller i.e. the place of recovery. The alleged ostensible owner namely Jamshaid Iqbal is also not produced as prosecution witness before the learned trial Court. Only his statement under section 164, Cr.P.C. (Exh.PZ/1) recorded on 5-5-1998 is brought on the record by the prosecution. In the said statement he has not alleged himself an ostensible owner of Ghousia Sheller i.e. the place of recovery. Simultaneously statements of co-accused Shaukat and Amjad Hussain under section 164 Cr.P.C. (Exh.PX and Exh.PY) do not bear that Jamshaid Iqbal was the ostensible owner of the said premises. Above all, it is important to mention that the said statements under section 164 Cr.P.C. of Amjid Hussain and Shaukat Ali were recorded in the absence of Faheem Babar accused/respondent. He was never furnished an opportunity to cross-examine both the said accused. Therefore statements of Jamshaid Iqbal, Shaukat Ali and Amjad Hussain recorded under section 164 Cr.P.C. cannot be used as a piece of evidence against the respondent/accused Faheem Babar. Prosecution has not been able to establish any nexus of Faheem Babar accused with the alleged place of recovery through any reliable, ocular or documentary account.

14. Admittedly no contraband was recovered from the physical possession of Faheem Babar respondent/accused. We have no hesitation to reach the conclusion that prosecution has no incriminating material against respondent/accused Faheem Babar to connect him with the alleged offence. In fact to his extent this is a case of no evidence. It is well-settled principle of law that presumption of innocence of the accused is double in case of acquittal therefore in the appeal against acquittal interference be made only if it appears that there has been gross misreading or non-reading of evidence amounting to miscarriage of justice. In this case learned Law Officer has not been able to make out any good reason to interfere in the well-reasoned judgment of the learned trial Court granting acquittal in favour of the respondent. The impugned judgment of the learned trial Court therefore is neither based on non-reading or misreading of evidence nor suffers from any perversity, material irregularity or legal infirmity. Therefore we are not inclined to interfere in the judgment passed by the learned trial Court granting acquittal to the respondent.

15. For the above reasons, this appeal having no merit is dismissed.

16. For the same reasons Criminal Miscellaneous No.2537-M of 2012 under section 561-A of the Criminal Procedure Code, 1898 is also dismissed. HBT/S-46/L Appeal dismissed.