2015 PLP 398 (YLR)

ABDUL RASOOL MEMON, J.

Both supra titled appeals are filed against one and same judgment, therefore, the same are decided through this common judgment.

2. Appellants and two other accused were tried by the learned Judge Special Court-I (CNS) Karachi for smuggling heroin and by Judgment dated 29-9-2010 accused Shahid Ahmed was acquitted but the appellants and another accused Ahudu Manliki were convicted under section 9(c) read with section 15 of CNS Act, 1997 (hereinafter be referred as "Act 1997"), and were sentenced to suffer R.I. for 10 years plus fine Rs.1,00,000 (one lac.) or in default to suffer six month's R.I. However, accused were extended benefit of section 382(B), Cr.P.C.

3. As per F.I.R. on 31-3-2005 complainant Inspector Sardar Abdul Waheed of Police Station ANF Clifton, Karachi received information through high ups about smuggling of heroin by a Ghana National passenger Ahudu with collusion of PIA staff namely Saleem Khan, Rehmat Wali and Manzoor Ali by Flight No. PK-274 from Karachi to Bombay. Complainant constituted a raiding party headed by him and reached in Jinnah International Airport Karachi at 5-00 a.m., met with ANF officials on duty there and started surveillance of passengers. A.S.-I. Nazir Alam was deputed to make surveillance apron area of plane. Complainant noticed one foreign national coming towards ANF counter having two bags. He was checked and ANF staff found some cloths, one file with some documents, one card in the name of Ahudu. After completion of formal checking allowed him, however, they continued surveillance on him. At 7.40 a.m. said passenger proceeded for taking flight but was stopped, his documents viz. Passport and boarding card were checked, nothing was shown booked on his boarding card. In the meanwhile Inspector received wireless message from A.S.-I. Nazir Alam that staff of PIA namely Rehmat Wali, Saleem Khan and Manzoor Ali had come in cargo vehicle and placed a black colour suitcase in the luggage being loaded in the Aeroplane. On receipt of such information passenger Ahudu was taken into custody. Shift Assistant Manager Muhammad Younis was contacted and the plane was asked to stop. Then luggage was got off loaded and from transit container of the plane, one black colour suitcase with a tag in the name of Ahudu and destination was from Karachi to Bombay, Adesababa and then Logos. Said suit case and Ahudu were brought at lounge then in the office of company Commander suit case was opened in presence of P.Ws/mashirs A.S.-I. Muhammad Muzamil and P.C. Shahid Raza, wherefrom two shoppers of pink colour containing eleven (11) cloth packets wrapped in white colour plastic tap were recovered and weighted. The (10) packets were weighing 10.500 Kgs. (each packet having 1.50 Kgs.) heroin whereas 'eleventh one was weighing 2.100 Kgs. total 12.600 Kgs. Heroin. Eleven samples weighing 10 grams heroin in each were drawn and put, in Khaki envelopes and sealed for chemical analysis. During search of accused two mobile phone set, one purse containing Rs.30 Indian currency, 165 U.S. $, Nigerian currency 4300, three calling cards, three visiting cards, one wrist watch and air ticket were also recovered and sealed. Accused Ahudu was arrested accordingly. Thereafter, Inspector also arrested Saleem Khan and Rehmat Wali. During investigation Muhammad Hussain and Shahid Ahmed were also arrested, however, accused Manzoor could not be arrested and on completion of formalities case was challaned in the court of law.

4. At the trial prosecution examined mashir SIP Muhammad Muzammil Ahmed Ansari (P.W.1), complainant Inspector Sardar Abdul Waheed (P.W 2) A.S.-I. Nazir Alam (P.W. 3), Malik Masood Ahmed (P.W.4) and Muhammad Younus Station Manager PIA (P.W.4). Accused were also examined under section 342, Cr.P.C. they repudiated the prosecution allegations and professed innocence. They neither appeared as their own witnesses on oath as required under section 340(2), Cr.P.C. nor produced any evidence in defence and lastly judgment impugned in these appeals was passed.

5. Heard Mr. Aamir Mansoob Qureshi, counsel for the appellants and aforementioned Special Prosecutor, ANF.

6. Mr. Aamir Mansoob Qureshi, bitterly criticized the impugned judgment and contended that it is perverse and the reasoning of the trial court are artificial vis- -vis evidence on record. He has further contended that prosecution has failed to prove conscious possession, participation; facilitation, inducement or conspiracy of appellants for committing alleged offence of smuggling of heroin with co-accused Ahudu; that important prosecution witnesses A.S.-I. Nazir Alam of ANF was not examined under section 161 during investigation, therefore, his evidence was not worth reliance. So also there are material inconsistencies and improbabilities in his evidence which creates shadow of doubt and its benefit should be given to the appellants not as a matter of grace or concession but as a matter of right. In support of his contention he has placed reliance on the cases of Muhammad Noor and others v. The State (2010 SCMR 927), Muhammad Aslam v. The State (2011 SCMR 820), Aarshad Mahmood v. The State (PLD 2008 Supreme Court 376), Khan Bacha v. The State (PLD 2006 Karachi 698), Abdul Khalid v. The State (2006 SCMR 1886), Muhammad Ramzan v. Rahib and others (PLD 2010 SC 585), Zulfiqar Hussain and another v. The State (2011 SCMR 379), Muhammad Idrees v. The State (2011 PCr.LJ 552), Muhammad Shah v. The State (2010 SCMR 1009), Azizullah v. The State (2009 YLR 2077), Gul Jehan v. The State (1998 MLD 288), Gulshan Ara v. The State (2010 SCMR 1162) and Ameer Zeb v. The State (PLD 2012 Supreme Court 380).

7. Conversely Mr. Shafiq Ahmed, learned Special Prosecutor, ANF has stated that appellants were seen by P.W. A.S.-I. Nazir putting suitcase containing heroin in container thereby they have facilitated the principal accused in commission of the alleged offence and are equally responsible for transporting alleged contraband (heroin). Therefore, material evidence is available on record in support of act played by the present appellants in facilitating the co-accused Ahudu and thereby the trial court has rightly convicted the accused/ appellants.

8. Having heard the submissions of learned counsel for the parties in the light of material available on file, though duty is cast upon the court to presume in trial under Control of Narcotic Substances Act, 1997, that accused has committed an offence under the Act unless contrary is proved. We find that the prosecution has not been able to prove its case satisfactorily against the accused/appellants as first it is necessary for prosecution to establish that accused has some direct relationship with narcotic drugs or has otherwise dealt with it. In the case in hand the main witness against the accused/appellants examined by the prosecution is A.S.-I. Nazir Alam of ANF, in whose presence the suit case in-question was allegedly placed in the luggage being loaded in the Air Craft and later on recovered. It is pertinent to mention here that this P.W. Nazir Alam categorically stated that he was not examined by the I.O. He was material and star witness of the entire prosecution case. Why and for what reasons prosecution has not brought such explanation on record. It is well settled that evidence of a witness whose statement has not been recorded during the investigation is not worth reliance. We may refer case-laws reported in 2011 PCr.LJ 552, 1996 MLD 1311 and 1995 PCr.LJ

248. Even otherwise, perusal of evidence of this witness no there discloses if at the time of placing said suit case by the accused in the container he had noted any mark of identification on it. He has simply said that accused Manzoor, Rehmat Wali and Saleem Khan had taken out one brief case/suitcase from the vehicle and put in the transit container of aircraft and then went away. He has never deposed in his evidence if the suitcase placed by accused was containing any tag or it was of black colour or even not said if it was recovered on his pointation. One more important thing is that this witness has never said if the suitcase produced in court was same which had been placed by the accused/appellant, but he simply identified it to be same which had been recovered from the aero plane. From the evidence of this P.W. it appears that the suitcase in question was recovered only on the basis That it had tag of the name of Ahudu and not on the pointation of this star witness.

9. It is also admitted by P.W. A.S.-I. Nazir Alam in cross-examination that the suitcase in question was not opened or any heroin was recovered from it in his presence. The evidence of this main and material witness appears as to be manoeuvred and set up one for the reasons that he not only failed to note number of PIA vehicle wherein said suitcase was allegedly brought and even could not give the number of Bay where aeroplane was parked. In cross-examination he has said 7/8 persons were loading the baggage in aircraft where he was there and none had objected on placing the suitcase in the luggage. He had also failed to note mark of container in which the said suitcase was placed. In the circumstances of the case discussed above the evidence of P.W. Nazir Alam is not seemed to be trustworthy and reliable

10. There is no other evidence brought against the present accused/appellants. Complainant and mashir Muhammad Muzammil had admittedly not seen both the appellants bringing the suitcase or placing the same in transit container of the aeroplane, while the evidence of P.Ws.4 and 5 is of formal nature as they had also not seen the appellants/accused bringing the said suitcase towards aircraft, as such their evidence in no way would implicate them. The trial court has recorded the conviction against appellants/accused without any incriminating material/evidence on record.

11. This being the position, extending the benefit of doubt to the appellants, these appeals are allowed and the judgment impugned before us by appellants is set aside. They are acquitted of the charge and ordered to be released forthwith, if not required in any other case. HBT/S-18/Sindh Appeals allowed.