2010 PLP 839 (MLD)

SYED ZAKIR HUSSAIN, J.

This Jail Appeal bearing No.201 of 2009 has been preferred by the appellant, challenging the judgment, dated 4-8-2009 passed by the learned Special Judge Court No.1, CNS Karachi in Special Case No.158 of 2008 convicting the appellant under section 9(b) of the CNS Act to suffer R.I. for 10 years and fine of Rs.50,000 and in default to serve another term of 6 months' R.I. He however, was given benefit of section 382-B, Cr.P.C. Briefly, the facts forming the background of this case, are that the appellant was arrested on 13-11-2008 at about 1600 hours, by ANF-C, Karachi. Inspector Muhammad Salman of the said Police Station received information about presence of Smuggler of Narcotics, Shakeel Ahmed, on the pointed place, who was also wanted in Crime No.117 of 2008 and in another Crime No.118 of 2008 registered at Muhammad Ali Society Police Station. He reached the pointed place i.e. Cantt. Station, Karachi, with his subordinate staff, as per Entry No.10 in two official vehicles. A car bearing registration No.AQW-109 came over there and a person came out from the car, who was identified as the accused Shakeel Ahmed, at about 1555 hours, another person came there and met him. The accused Shakeel Ahmed gave him a black bag from inside the car. The ANF people apprehended both the persons and secured the said black bag. The culprits disclosed their names as Shakeel Ahmad and Muhammad Arshad (appellant) with other particulars. The police secured from the said bag 106 capsules full of heroin powder of about 1200 gram in weight. The car was searched by the officials and then they secured 35 heroin-filled capsules, there-from, weighing 400 grams. They arrested both the culprits under a Memo. prepared over there, before the official Mashirs. The culprits were brought to the Police Station where the F.I.R. was registered and after investigation charge sheet against both of them was submitted before the learned trial Court. The appellant before the framing of charge made an application that he pleads guilty of the offence with which he is charged. The trial Court did not accept the application of the appellant and after framing charges proceeded with the case. The other accused however, denied the charge of having been found in possession of the Narcotic Substance on the given date, place and time and claimed trial. The prosecution led evidence and on 30-7-2009 examined A.S.-I. Shakeel Ahmed, the Mashir of the Memo, of the arrest and recovery in question. Even Investigating Officer was not examined and Court closed the side of the prosecution. The accused persons were examined under section 342, Cr.P.C. The appellant however, during examination under section 342, Cr.P.C. has accepted the charge and thereby pleaded 'guilty' again. The Court having heard the matter proceeded to decide the same on the point for determination of the case that whether the prosecution has proved the charge against the accused persons including appellant and shadow of any reasonable doubt. The learned trial Court finally held the appellant 'guilty' on the basis of a repeated plea of 'guilty' which plea was turned down and was not taken into consideration as observed above, and the learned trial Court by the impugned judgment, on the same set of evidence, on merits, held for the accused Shakeel that the prosecution has failed to prove his guilt and acquitted him from the charge of the case on the same evidence by the impugned judgment. We have heard the appellant produced in custody and the learned Special Public Prosecutor at length and perused the record. The learned Special Public Prosecutor contended that the Government has not filed any appeal against the acquittal of the accused Shakeel, despite, her advices. On perusal of the record, we find that the impugned judgment shows that there was no evidence in the case except the deposition of the A.S.-I. Shakeel one of the Mashirs examined by the prosecution. The other witnesses could not be produced despite coercive method adopted by the Court, which resulted in closing the side of the prosecution. The accused Shakeel was in the circumstances rightly acquitted by the learned trial Court and the impugned judgment to that effect, carries sound and valid reasons, but simultaneously, the same appears to be unsustainable in the eye of law, for the reason that on the same set of evidence, and for the same reasons, as contained therein, the learned trial Court seems to have erred in convicting the appellant merely on the basis of his plea of `guilty', which was turned down, and not acted upon, time and again, in the earlier stages, of the case. This is a settled principle of law that if a case on merits, is not made out, mere confession, will not be made basis for conviction, as the confession alone of an accused carries no evidentiary value in law and the Court is duty bound to ensure that a pela of `guilty' or confession is proper, voluntary, without any temptation, promise or coercion. Moreover, it must have nexus with the evidence prima facie establishing such guilt of the accused. In the instant case, the trial has been concluded and there is a finding of the Court that no evidence has been led to establish the charge against both' the accused persons, therefore, in our view, the result should not have been different for the appellant. As regards the plea of guilt and conviction recorded in the impugned judgment, are concerned, the plea of guilt should have been dealt with by the learned trial Court at the relevant time and not after conducting whole case on merits. If the learned Judge has found that there is no evidence against the co-accused Shakeel, how can he hold otherwise for the appellant on the same evidence, convicting appellant on the sole ground of plea of guilt, which he himself discarded at the appropriate time without serving show cause notice. Consequently, we for the aforesaid reasons allow the appeal and set aside the impugned judgment being unsustainable in law. These are the reasons of our short order, dated 30-3-2010. H.B.T./M-59/K Appeal allowed.