2003 PLP 1035 (YLR)

5. During trial prosecution examined as many as 26 witnesses to prove the guilt of the accused.

6. Muhammad Sarwar H.C./Head Moharrir, P.W.1 kept the sealed parcels in safe custody in Police Malkhana and handed over to Abdul Ghafoor F.C. for their deposit in the office of Chemical Examiner, Lahore on 17‑4‑1995. P. W .2 Abdul Ghafoor deposited the sealed parcels in the office of Chemical Examiner, Lahore. P.W.3 Aslam Pervaiz son of Khan Muhammad, P. W.4 Abdul Hamid son of Muhammad Sadiq, P.W.5 Muhammad Latif son of Muhammad Rafique, P.W.6 Muhammad Akram son of Jeewan Khan, P.W.7 Masood Ahmad son of Faqir Ahmad Khan, P.W.8 Muhammad Nawaz son of Haji Sher Muhammad P.W.9, Mubarik Ali son of Muhammad Sadiq, P.W.10 Muhammad Sabir son of Fazal Karim were declared hostile as they refused to support the prosecution story. Muhammad Akram son of Muhammad Ali P.W.11 stated that he had purchased car MNB 7340 from Muhammad Naeem but it was in the name of Noor Muhammad and he identified the car in possession of ANF. Noor Muhammad P.W.12 stated that he was owner of the car and delivered the said car to Naeem Motors who further sold to Muhammad Akram P. W.11, Naeem Akhtar P. W. 13 was the car dealer through whom Noor Muhammad sold the car to Muhammad Akram P.W.11. P.W.14 Dr. Waqar Hussain was the Judicial Magistrate, who got recorded the statements of Muhammad Siddique and Abdul Sattar under section 164, Cr.P.C. P.W.14 Ch. Muhammad Ismail, Judicial Magistrate recorded the statements under section 164, Cr.P.C. of Muhammad Rafique Exh.P.B., Abdul Hameed Exh.P.A., Roshan Din Exh.P.I., Mubarak Ali Exh.P.F., Muhammad Siddique Exh.P.J., Master Muhammad Akram, Exh.P.C., Masood Ahmad Exh.P.D., Muhammad Nawaz, Exh. P. E. Khuda Bakhsh Exh. P. L. Abdul Jabbar Exh. P. M., Muhammad Iqbal Exh.P.N., Muhammad Boota Exh.P.O., Abdul Majeed Exh.P.P., Malik Muhammad Afzal Exh.P.O., Muhammad Latif Exh.P.B./1, Abdul Majeed Exh.P.A./1, Tariq Mahmood Exh.P.R. P.W.16 Khuda Bakhsh was constable in Excise and Taxation Department. The Car MNB‑7340 was purchased by Muhammad Nawaz through an open transfer letter. He was also declared hostile by the prosecution. P.W.17 Muhammad Iqbal and P.W.18 Abdul Jabbar were also declared hostile as they refused to support the prosecution story. P.W.19 Hawaldar Sher Zaman was member of the raiding party and had attested the recovery memos whereby incriminating articles were taken into possession at the spot by the Investigating Officer P.W.20 Ahmad Jalil Raja, Incharge PSANF, Lahore also conducted the investigation of the case and got recorded statements under section 164, Cr.P.C. of Abdul Jabbar, Zulfiqar, Abdul Majid, Muhammad Boota, Muhammad Latif, Abdul Hamid and Muhammad Tariq. He submitted challan of the case before the Court for trial. P.W.21 Col. Retd. Muhammad Younas supervised the raid and investigation conducted by ANF officials. P.W.23 Riaz Ali, S.‑I. recorded the formal F.I.R. P.W.24 Dr. Shakeel Khan Ghori, had medically examined Abdul Sattar appellant. P.W.24 Muhammad Jamshed Cheema, D.S.P., ANF, Lahore had investigated the case. He arrested Munawar Hussain Manj, from Airport, Lahore after cancellation of bail by the High Court. Mr. Ahmad Jalil Raja, D.S.P./A.D. had identified the signatures of Ikram Ullah Bandial (P.W. not produced), who had investigated the case and prepared the complaint. Mr. Ahmad Jalil Raja and Muhammad Hanif were also examined as C.W.1 and C.W.2 respectively.

7. Prosecution evidence was closed by tendering in evidence report of Chemical Examiner, Lahore Exh.P.BB.

8. Statements of accused/appellants were recorded under section 342, Cr.P.C. They denied the allegations and claimed innocence and false involvement. Munawar Hussain Manj, appellant in reply to Question No.5 as to why this case against him and why the P.Ws. have deposed against him, he replied as under:‑‑ "I am innocent. The P.Ws. have deposed against me with specific mala fide. At the time of occurrence, I was sitting MNA. I was Member of Narcotics Control Standing Committee and also Member of Standing Committee of Interior Committee constituted by National Assembly at the said relevant time. I made speeches against the then Interior Minister Naseer Ullah Babar on the point that the narcotics were being transported to Punjab, Sindh and Balochistan from N.‑W.F.P. which is the biggest growing and manufacturing point of narcotics, they had made havoc to the lives of the people from all the Provinces including their own Province i.e. N.‑W.F.P. I criticized that since Naseer Ullah Babar the then Interior Minister was not taking appropriate action against his N.‑W.F.P. peoples. I criticized in the National Assembly and in the meetings of Interior and Narcotics Standing Committees to the role of Narcotics Task Force Personnel and about their corruption and inefficiency to control the sin of narcotics which nourished grudge against me in their minds. I have political rivalry with Malik Mushtaq Ahmad Awan, the then Senior Minister, Punjab, who hails from Sheikhupura where from I belong. Malik Mushtaq Ahmad Awan has also joined hands with ANF officials to redress his grievances. . In 1977 Malik Mushtaq Ahmad was elected MNA from Halqa NA‑102 on PPP ticket. Again in 1988 Malik Mushtaq Ahmad was elected MNA on PPP ticket, he also became Federal Minister and remained till 1990. In 1990 again Malik Mushtaq Ahmad contested election from Halqa NA‑102 on PPP ticket when myself contested election against Malik Mushtaq Ahmad Awan as independent candidate, because of me Mushtaq Ahmad lost his election. In 1993 again ticket from PPP for NA‑102 was given to Mushtaq Ahmad Awan and just some time before the commencement of election, about few days prior to election ticket from Malik Mushtaq Ahmad Awan was withdrawn and was given to me. I contested election from Halqa No‑102NA Sheikhupura in 1993 and was elected MNA. He got posted real brother of his wife namely Malik Fazal‑ur‑Rehman, as A.D. in ANF in the said days of occurrence, they all planned and with mala fide intention involved me in the instant case with the allegation of abetment. Although I was not present at the time of occurrence at the alleged place of occurrence. After my false involvement in this case and having made the story of occurrence and after this mission was over the said Malik Fazal‑ur‑Rehman, the then posted as A.D. ANF, was promoted as reward and transferred to Income Tax Department and posted as A.C. Income Tax. The said Malik Fazal‑ur Rehman, was simply graduate, the had not come through any competition/ examination but Malik Mushtaq Ahmad Awan got him appointed directly as A.D., ANF, Lahore with relaxation of all Rules illegally. He was given reward of falsely involving me in order to ruin my political career in the area of District Sheikhupura, as I was politically threat to said Malik Mushtaq Ahmad Awan and Naseer Ullah Babar etc. The instant case could not be tried by this Court as Anti‑Narcotic Substances Ordinance, 1995 stood lapsed and the subsequent Ordinance did have no saving clause. This Court has also no jurisdiction to try this case as the instant alleged matter pertains to District Sheikhupura. Appointment and notification of this Honourable Court pertains to District Lahore. This Court has no territorial jurisdiction and notification pertaining to District Sheikhupura. I have never been involved in any case with the charge pertaining to narcotics. I have never been involved in any narcotics case. I was an elected Councillor from Sheikhupura in 1983. I was elected MPA in the year 1985. I was again elected Councillor in 1987. I was again elected MNA in 1990 which went under dispute and then was not declared returned candidate." Muhammad Siddique and Abdul Sattar, appellants replied the same question in the terms that they have been falsely implicated in the case. The witnesses have deposed against them falsely.

9. Trial culminated into conviction and sentence of the appellants as afore‑referred. Hence their appeals. Tariq co‑accused was acquitted by the learned trial Court.

10. Learned counsel for the appellant Munawar Hussain Manj has argued that it is a case of no evidence against his client admittedly he was not present at the spot and the prosecution has failed connection of his client with his co‑accused to show that Abdul Sattar gunman or Muhammad Siddique was his driver. His client Munawar Hussain Manj not responsible for of his co‑accused. He was implicated due to political rivalry of Malik Mushtaq Ahmad Awan of the same District. It has also not been proved on record that the car was owned by him. All the private prosecution witnesses have been declared hostile and they have refused to support the prosecution story, therefore, his client is entitled for acquittal.

11. As far Muhammad Siddique and Abdul Sattar appellants, learned counsel at, the very outset has stated that he would not challenge the conviction of the appellants provided the sentence awarded to them be altered from death to life as according to prosecution itself both the appellants were not in a position to purchase huge quantity of narcotics and they were acting for someone else, therefore, it is not a case of capital punishment.

12. We have heard the learned counsel for the parties and have also perused the record with their able assistance.

13. First of all we will take up the case of Munawar Hussain Manj‑appellant. The prosecution case against him is basea on judicial confessional statements of co- accused Muhammad Siddique Exh.P.G. datea 14‑4‑1995, Exh.P.J. dated 27‑4‑1995 while that of Abdul Sattar accused‑appellant dated 14‑4‑1995 Exh. P. H. and Exh. P. K. dates 8‑5‑2002 but both of them have resiled from their statements. Another aspect of the case is that both these co‑accused Muhammad Siddique and Abdul Sattar at the time or recording of their statements under section 164, Cr.P.C. were admitted in hospital in injured condition wherefrom they were brought by the police and were also sent back to the hospital under police custody which is clear violation of law. The legal formalities for recording of confessional statements under section 164, Cr.P.C. were also not observed/fulfilled by the Magistrate as these witnesses were not explained that they will not be sent back to the police custody. Furthermore, both of them have also resiled from their statements during the trial, as according to them these were obtained by exerting pressure, therefore, the trial Court has rightly not relied upon their confessional statements. We are also of the same view that these statements cannot be relied upon to record the conviction against the appellant. The second piece of evidence against Munawar Hussain Manj was that Abdul Sattar, co‑accused, was his official gunman and Muhammad Siddique appellant was his Munshi and driver but the prosecution failed to prove their relation with Munawar Hussain Manj. Learned Advocate for ANF has relied upon the statement of Muhammad Hanif, C.W.2 to show that he produced the record whereby Abdul Sattar was appointed as official gunman of Munawar Hussain Manj but the documents he wanted to prove could not be brought on record in accordance with law. No opportunity was granted to the defence to cross‑examine this witness, therefore, his evidence cannot be relied upon. Regarding Muhammad Siddique, he claimed to be an employee of WAPDA and no link with Munawar Hussain Manj could be proved by the prosecution. Apart from that the prosecution also alleged that the car used for narcotics by Muhammad Siddique and Abdul Sattar belonged to Munawar Hussain Manj but the prosecution examined Noor Muhammad P.W.12, who was real/original owner of the car who sold it to Muhammad Akram, P.W.11 through Naeem Akhtar P.W.13 (car dealer). Even no open transfer letter/document as alleged by the prosecution has been brought on the record to show that Munawar Hussain Manj was owner of the car or was ever remained in his use. The private witnesses, the prosecution wanted to examine in this regard were declared hostile as they failed to support the prosecution story. Admittedly, Munawar Hussain Manj was not accompanying his co‑accused Muhammad Siddique and Abdul Sattar when they were apprehended by the ANF. The allegations levelled by the prosecution against him was that he deals in narcotics through his servants has not been proved on record to connect him with the commission of crime. The learned counsel for ANF has vehemently argued by placing reliance on section 15 of CNSO, 1995 that Munawar Hussain Manj is equally liable for conviction being abettor, associate, counselling with co‑accused but no evidence' has been produced by the prosecution. In criminal law every person is liable for his individual act and no one can be convicted for the act of his employee or servant. His case throughout before the Investigating Officer as well as in the Court was that he has been implicated due to local political rivalry with Malik Mushtaq Hussain Awan, the then Senior Minister, Punjab, through his brother in‑law, Fazal‑ur‑Rehman, who was Assistant Director in ANF and this fact has not been denied by the prosecution. After deep re appraisal of evidence, we find that the prosecution has failed to prove its case against Muanwar Hussain Manj by convincing and unimpeachable evidence. Resultantly, his appeal (Criminal Appeal No. 1227 of 2001) is allowed. The conviction and sentence recorded against him by the trial Court is set aside and he is acquitted of the charge and ordered to be released forthwith if not required in any criminal case.

14. Now, we take up the case of Muhammad Siddique and Abdul Sattar appellants. Both of them were found in the car carrying huge quantity of narcotics, who were signalled to stop the car, Muhammad Siddique tried to flee away after breaking the hurdles and they also resorted to firing at the ANF officials but their car collided with the vehicle of ANF staff and they were injured in this course and were arrested in injured condition at the spot. They were found in possession of 30 Kgs. of heroin and 35 Kgs. of Charas. The prosecution has no ill‑will for their false implication or substitution by letting off real culprits, therefore, we find that their learned counsel is justified in not challenging the conviction, so, we uphold their conviction as having not been challenged.

15. As far as sentence is concerned, it is the case of the prosecution itself that they were only the carriers. They had no capacity or means to purchase such a huge quantity of narcotics. They are not previously involved in any similar case. Being first offenders, we take lenient view and while maintaining their conviction we alter their sentence from death to life imprisonment which meet the ends of justice. However, punishment of tine or in lieu thereof is maintained.

16. The offence being heinous and rising in the society, they are not entitled to the benefit of section 382‑B, Cr.P.C. Their appeal (Criminal Appeal No. 1230 of 2001) is dismissed with above modifications. N.H.Q./M‑1689/L Order accordingly.