1996 P Cr (PLP)

The statement of appellant/accused Mukamal Shah recorded under section 342, Cr.P.C. on 12‑9‑1995 contains a question with its answer which reads as follows:‑‑ Q.‑‑‑It is in evidence that sample of the heroin weighing four grams was sent to the F.S.L. and the report is received in positive. What do you say about it? A.‑‑‑I know nothing about the same report as no recovery has been effected from me. This question created some doubt in my mind that I asked Mr. Rooh‑ul‑Amin, the learned Advocate for the State, to‑bring into light the said report because this Court could not find any clue of the said report in any of the file available with this Court. The learned Advocate also failed to trace out any such report from the record. Although in the light of this admitted position reflected by the record, working of the learned Sessions Judge needs no further comments yet the evidence of P. Ws. brought on record and the conclusion drawn by the learned Sessions Judge is of more importance to expose his working particularly in the light of the prosecution story. (i) F.I.R. lodged by late Ahmad Mukhtar Khan unfolds that on 18‑3‑1990 he had seen a red colour motor car No.8866/PRE coming only with a driver in it. The car was signalled to stop but it did not stop. The car was chased and it was found abandoned near the road side with no one in it. As a result of search, one packet containing one kilogram heroin was found from a secret cavity made on the left side of the front wheel. The registration book found from the car disclosed the name of one Mohabat Khan son of Fateh Ali Khan, House No.2052, Mohallah Sheikh‑ul‑Islam, Peshawar. It is important to point out that name of the said Mohabat Khan was neither brought in the charge‑sheet as an accused nor as a witness. (ii) The, learned Sessions Judge charged the appellant/accused under Articles 3 and 4 of Prohibition Order to which he pleaded "not guilty" and claimed trial on 20‑6‑1995. The charge contains the allegations of transporting one kilogram heroin punishable under Article 3(2)(i) and possession of the said material punishable under Article 4 of Prohibition Order. (iii) In support of their case the prosecution examined five witnesses. P.W.I is Zahir Shah who claimed to be the owner of that vehicle, which was mentioned in the F.I.R. Although the Registration Book recovered from the car showed the name of owner as Mohabat Khan yet the prosecution kept itself silent on this point. This witness only stated that the said car was borrowed by the appellant in presence of several persons. Hence he was neither a witness of transporting the alleged heroin nor a witness to possession of the alleged heroin. P.W.2 is Gul Khan who stated that Zahir Shah (P.W.I)'had handed over the said car to the appellant/accused in his presence. So he is also not a witness to prove transportation or possession of the alleged heroin by the appellant. P.W.3 is Zarif Khan, A.S.I., who registered the case on receipt of Murasila from the Investigating Officer/complainant of the case. P.W.4 is Akbar Shah, S.H.O., Prang, Charsadda who claimed to have partly investigated the case but nothing was radiated by the record as to what investigation was carried on by him. However, his evidence in his cross examination is of some importance and it reads as follows:‑‑ "It is correct that at the time of submitting challan the report of Chemical Examiner was not available on the file. The application for sending the sample to the Chemical Examiner was not endorsed by me. I do not know about the investigation conducted by the late P.W. Ahmad Mukhtar. " (Underlining is my own). If this witness does not know about the investigation conducted by the late Investigating Officer (Mukhtar Ahmad) and the record of case also does not disclose any investigation done by him, then it cannot be believed that he had partly investigated the case. And if he had done some investigation then it must be known to the prosecution or the learned Sessions Judge provided they have some mystical or magical powers to know because so far as the record of the case is concerned, it is totally silent to disclose any such thing which could be termed as investigation. P.W.5 is Wazir Zaman, F.C. No.753 Police Station Takhat Bhai who claims to be witness of recovery of alleged heroin and in his cross‑examination he stated in the Court as follows:‑‑ "I do not know how and when the sample was sent to the Chemical Examiner. "

4. On the basis of these statements it appears that the learned Sessions Judge

(a) presumed that it was the appellant who was driving the said car from which the heroin was alleged to have been secured. The presumption is based on the statement of the owner of the car namely Zahir Shah who only stated that he had handed over the said car to the appellant. Strange enough for me to note as to why the prosecution did not like to make Zahir Shah an accused when the alleged heroin was recovered from a car owned by him? If the prosecution was of the view that no evidence was available against him at that tune even then his name could be put in column No.2 of the charge‑sheet on account of recovery of the alleged heroin from a car owned by him. Instead of putting his name as an accused even in column No.2, the prosecution treated his statement to be the Qura'nic truth and made the appellant to be the only accused on the basis of that statement although the appellant accused had neither been arrested from the spot nor appears to have been identified by anyone to show that he was the person who was driving the said car at the time when it was chased by the police. I have no hesitation to say that any innocent person can be booked by the police in any crime if investigation is done in this manner. Hence I am unable to put the seal of justification on such defective investigation. (b) If evidence of P.W.1 Zahir Shah, who was not made accused even in column No.2 of the challan, is read with the evidence of P.W.2 namely Gul Muhammad then doubts about the prosecution story are further increased. This reality can be easily ascertained from the following pieces of evidence: P.W. Zahir Shah stated in the Court that:‑‑ "On the day of occurrence it was Friday. Accused Mukamil Shah met me on the taxi‑stand. Due to his necessity for the car I handed over my motor car to him. On the following day Mukhtar Khan, A.S.I came after me that my car was seized in a heroin case." The F.I.R. shows the time of occurrence as 10‑000 hours on 18‑3 1990. The police file reflects that the late Investigating Officer (Ahmad Mukhtar) had come try know about the name of Zahir Shah to be the owner of the car on 19‑3‑1990. So there retrains no ambiguity that the said Zahir Shah was fully aware on 19‑3‑1990 about this reality that police was after him. His brother namely, Farood Shah contacted the police on 20‑3‑1990 But Zahir Shah himself appeared before the police on 25‑3‑1990 alongwith certain other persons. Their statements under section 161 and under section 164, Cr.P.C. were recorded by the Investigating Officer and Magistrate respectively but none of those persons, including the Magistrate, was examined in the Court as witness. I am of the view that the Investigating Officer of any case cannot release an apparently accused person on the basis of statements recorded under section 161 or under section 164, Cr.P.C. unless those statements are proved to be true in the shape of evidence before the trial Court having jurisdiction to proceed with that case. The name of such person can be put in column No.2 by the prosecution if, for the time being, no evidence is available with the prosecution. In the present case the Investigating Officer of the case was bound to make Zahir Shah an accused on account of recovery of heroin from a car claimed to be owned by him. He could not be treated innocent by the police on the basis of statements recorded under section 161, Cr.P.C. or under section 164, Cr.P.C. unless it had been proved in the Court that those statements were based on truth. I have also no hesitation to opine that the said witnesses (P.W.1 and P.W.2) were not speaking the truth. My reasoning for holding so is based on the following facts: According to Zahir Shah (P.W.1) the motor car was handed over to the appellant/accused on the day of occurrence i.e. 18‑3‑1990. The time of occurrence has been shown in the F.I.R. as 10‑00 hours. If his statement is believed to be true then the alleged car was given to the appellant/accused by him before 10‑00 hours: But this version is falsified by Gul Khan (P.W.2) who stated in his examination‑in‑chief that Zahir Shah handed over his car to the appellant/accused at "late Peshin Wela". The time embodied in the term "late Peshin Wela", in the month of March, starts when the time of "Zuhar Prayer" comes to an end and time of Asir Prayer starts i.e. approximately after 16‑00 hours to 17‑30 hours. If this witness is believed to be speaking the truth then Zahir Shah had handed over his car after 16‑00 hours and not before 10‑00 hours. On account of these realities P.W.1 and P.W.2 do not appear to be speaking the truth and hence their statements against the present appellant cannot be relied upon.

5. Another important aspect which goes into the roots of this case, or other similar cases, is of great importance. Admittedly the learned Sessions Judge, Mardan and the Sub‑Divisional Magistrate, Mardan were neither Chemical Examiners nor they were performing the duties of Chemical Examiners. Admittedly the report of Chemical Examiner was not submitted alongwith the charge‑sheet and even it was never produced by the prosecution at any stage during the proceedings in the Court. I am of the view that if the report of an expert is not available with the Court then framing charge on the basis of presumption would be invalid irrespective of this reality that an accused pleads "guilty" or "not guilty". I would like to elaborate this point with the help of an example:‑‑ "Suppose an accused facing trial in a murder case pleads guilty before a Sessions Judge that he had killed the deceased by using kiashntkov car any other fire‑arm. The report of the Doctor was not available with the Court at the time when the accused pleaded guilty. He is ordered to be hanged on the basis of his confession. After his death, if the report of doctor reveals that the deceased had no sign of any injury caused by any fire‑arm, then the learned Sessions Judge would not be able to bring that life back to this world. In my view, such Sessions Judge would be liable to be tried for murdering an accused. It is a bitter reality that confession of crimes by innocent persons in the third‑world countries is not an astonishing factor. Therefore, the learned Judges of the subordinate Courts are not supposed to convict any accused by relying upon the statements of professional witnesses or confession of the accused if these pieces of evidence cannot be corroborated with the report of expert or when such report is not made available by the prosecution. On the bases of this proposition I found myself unable to share the conclusion drawn by the learned Sessions Judge that the appellant/accused was guilty of transporting or possessing heroin particularly when there was no such report on the record to show that heroin had been recovered from the car allegedly to be in possession of the appellant."

6. Similarly it was astonishing for me to note that the learned Sessions Judge declared appellant/accused to be habitual offender on the basis of some sentence awarded to him in another case. It is matter of record that neither such report was brought on record nor any prosecution witness stated so. I am of the view that making any adverse observation in the absence of any evidence on record against any accused by a Judge in a judgment for the purpose of convicting that accused on the bases of those observations amounts to painful injustice and it becomes more painful when observations are made by the Sessions Judges who have expectancies to become the Judges of the superior Courts. It must be noted by all such Sessions Judges that Islamic Justice is not based on presumptions but it requires evidence, free of all doubts, to prove charges against an accused. Even if an accused is known to be habitual offender he cannot be convicted in any case on the basis of presumptions or his bad reputation. The charges levelled against any accused must be proved in each and every case separately on the strength of evidence which should be clean, crystal and un-doubtable. It may be possible that an accused might be guilty but to be innocent or guilty is something else and to be proved innocent or guilty is, something else. The Courts are not supposed to convict an accused on the, presumptions that he might be guilty of an offence on account of his previous bad record or reputation. The Court can convict an accused only when he is proved to be guilty.

7. On the strength of above discussion I have no hesitation to hold that the case against the appellant has not been proved by the prosecution. Resultantly, the appeal is allowed with the consequences that conviction and sentences of the appellant are set aside. He is acquitted of the charge framed against him and is ordered to be released forthwith if not required in any other case. Before parting with this judgment I consider it necessary to disclose that I have deliberately avoided to bring on record the name of the learned Sessions Judge who had passed the slipshod impugned judgment which was fully reflected by its operative part reproduced in para. 2 above. But I hope that the said learned Sessions Judge would avoid in passing such judgment in future because such kind of judgment can be termed as the symbol of injustice and not justice and a judgment which is devoid of reasoning does not possess the characteristics of justice. N.H.Q./1042/FSC Appeal allowed