1988 P Cr (PLP)

I have heard Mr. Azizullah K. Shaikh, learned counsel appearing for the appellant, and Mr. Rashid Tariq Khan learned counsel appearing for the State. It was contended by Mr. Azizullah K. Shaikh that according to P.W. Saeed Moosa, and Mashir Ghulam Safdar, there were two persons in the taxi. P.W. Saeed Moosa has further deposed that the goods were loaded by bearded man, and police did not arrest that man. According to him it was the bearded man who was the owner of the articles in question. He has further stated that there was non‑compliance of section 364, Cr.P.C. inasmuch as no certificate was appended by the learned trial Judge after recording the statement of the appellant. He has further contended that the report of the chemical examiner does not give details of test, and only 5 grams of heroin were sent for examination and therefore, the report could not be relied upon. In support of his contentions he has relied upon 1987 P Cr. L J 144, 1986 P Cr. L J 1723, 1986 P Cr. L J 2395 and 1985 PCr.LJ

241. Mr. Rashid Tariq Khan, Advocate appearing for the State has contended that the prosecution has proved its case against the appellant through the complainant, and two Mashirs, therefore, the appeal was liable to be dismissed. P.W.1 Saeed Moosa taxi driver has deposed that on 25‑4‑1986 he was coming in Rickshaw at about 3 or 4 p.m., a person was standing at Garden Road near Maki Masjid, and he stopped his rickshaw. He told him that he wants to go to Airport and he has to collect his goods from the Sheraton Hotel. The passenger came in the taxi with him and it was a car taxi. He went to Sheraton Hotel, the present accused /appellant did not sit in the taxi but he was another passenger who had sat in the taxi. He had parked his taxi near Sheraton Hotel, and passenger went inside. At that time another unknown person was found there, and he asked him for taxi but he told him that there is another person in the taxi. In the meantime the passenger came out from the Sheraton Hotel. The passenger who was bearded man had also a talk with that man in Arabic language. They then sat in the taxi. The other person who sat in his taxi was accused present in Court. Police party stopped his taxi at Drigh Road near Gora Kabrustan and passenger with beard was taken by police from the taxi and was made to sit in their vehicle, while two other police persons sat in his taxi in which the present accused/ appellant was also sitting. The police party asked him to follow police vehicle. One police vehicle was infront of them and other police vehicle was looking after them. They went to North Nazimabad Police Station. The passenger with beard had kept two cartons in his taxi. Police opened both the cartons in his presence, and found small tables in the cartons. Police party opened the furniture and found heroin powder in wooden table. Police also found Charas from those tables. Heroin powder as well as Charas were weighed. Heroin was weighing one kilo, while Charas was weighing one and half kilograms. Police sealed Charas and heroin, and prepared Mashirnama. Mashirnama was not read out to him. Police obtained his signature on Mashirnama of arrest and he has produced the same as Ex.5 which was same and bears his signature, other Mashirs also signed the Mashirnama. According to him the accused present in Court was the person who had sat in taxi from Sheraton Hotel. Charas and heroin were sealed and were produced in Court as Articles 'A' and 'B', wooden furniture and cartons were produced as Articles 'C' and 'D'. In cross‑examination he has deposed that passenger with beard had taken this furniture from Madina Market on their return to hotel. One carton was kept in diggi of the taxi and other carton was kept on carrier of the taxi. Accused Mehmood was standing at the gate of Sheraton Hotel with a bag in his hand, while passenger with beard came from inside the Sheraton Hotel. Accused Mehmood wanted to engage a taxi but he replied that his taxi has already been engaged by one passenger. Man with beard also told to give lift to this passenger as he will pay extra, fare. According to him the police kept him at the police station for two days. His taxi was returned to him after six days. P.W. 2 Rais Ahmed, who is complainant as well as Investigating Officer has supported the contents of F.I.R. and has further stated that, they asked the accused about the articles kept in the taxi. Accused replied that it is not his luggage. They suspected the accused and brought him to the police station P. N. C . B . North Nazimabad. They opened both the cartons and found wooden folding tables in the cartons, two tables were of larger size and 4 tables were of small size. On opening the wooden furniture they found 1 kg. heroin, 11 kg. Charas and 5 grams cocaine. After taking out samples from the above articles, he sealed all the three samples separately as well as heroin, Charas, and cocaine, separately, and prepared such Mashirnama. He lodged F.I.R. on behalf of the State and the same has been produced by him as Ex.7. He examined P; Ws. Sadiq Safdar, and Saeed Moosa taxi driver. He sent samples of heroin, Charas and cocaine, to chemical examiner for examination and report. The report has been produced by him as Ex.8. After completing the investigation he challaned the accused. He has further stated that the case property in Court was the same. In cross‑examination he has stated that one person was sitting, apart from the driver in the taxi when it came and stopped it at the gate of Sheraton Hotel. Voluntarily says that only accused Mehmood was sitting in the taxi. He has further stated that it is a fact that these two cartons were already kept in the diggi and on the carrier of the taxi, when it was stopped at Sheraton Hotel. He has admitted in cross‑examination that during the investigation he came to know that these cartons were loaded from a shop situated at Madina Furniture Market, adjacent to Makki Masjid Garden Road, Karachi. He did not record any statement of any person from Madina Furniture Market. To a suggestion, put in cross-examination he has stated that "it is incorrect to suggest that two persons were sitting in the taxi. He has stated that the raiding party was headed by Choudhry Faryad Hussain. He knows that Irshad Ali who is F:I.O., Ch. Faryad Hussain Assistant Director were suspended. It was not in his knowledge if they both were suspended on the charge that they called two persons from P.I. A . Office and challaned them on the charge of heroin. According to him Irshad Ali has been re‑instated at present. He further stated that he had sent heroin to the chemical examiner for examination on 25th April 1986, and that he had himself taken samples to the chemical examiner for handing over the same to him. According to him it was incorrect that there were two passengers in the taxi, and he had left the actual Arab to whom the property belonged. P.W.3 Ghulam Safdar, has deposed that on 25‑4‑1986, while he was passing near Star Gate when he was picked up by Police in this case and was told that they have to check one car, and therefore, they wanted him to act as Mashir. Other Mashir Mohammad Sadiq was also called by the police. He was made to sit in official vehicle. He found one taxi coming. This taxi was stopped by the police. One driver and two passengers were sitting in the taxi. Police took the taxi to North Nazimabad P. N. C . B . Police Station. Police secured two cartons, one from diggi of the car and other from the carrier of the taxi. Both cartons were opened. On opening the cartons, wooden table was found from one of the carton, and one table was found from the other carton, legs of table were also secured from one carton. Wooden table were opened, heroin, charas, and coacine were found from the wooden tables. All three articles were weighed and it was found that heroin was one kg. charas was 1 kgs and cocaine was 5 grams. According to him, one accused was present in Court. Police secured passport from the present accused. Arrested the accused and prepared such Mashirnama. According to him Mashirnama Ex.5 bears his signature. Police sealed heroin, charas and cocaine separately in his presence. The articles present in Court were the same. In cross‑examination he has stated that he is massenger in the United Bank Limited Bara Maidan Bench Nazimabad, Karahi. He was residing at quarter No. G‑3, situated at North Nazimabad Block "B", Karachi. He had given his residential address to the police. This quarter had been allotted to his brother Akhtar Hussain who is also working in the U.B.L. Haidery Branch. On the day of incident, he had gone to Green Town, the distance might be about 20 miles. He had gone to Green Town in the bus to see his friend Ghulam Hussain. Green Town is situated at a distance of about one and half km from the Star Gate. He had gone to Green Town at about 11/12 noon. He was with his friend for 3/4 hours. After his arrival at bus stop, police vehicle reached there within 10/15 minutes. His friend Ghulam Hussain had gone away by that time. According to him 10/15 persons were standing at Bus stop, when he was called by the police. The other Mashir was also standing with him at the same place. It was about 4‑00 p.m. when taxi was stopped. Police party was in Toyota Jeep of blue colour. He stayed at police station for about two hours, police did not secure in his presence passport and other documents from the passenger with beard. According to him, other man with beard (other passenger of taxi) is not present in Court. It was incorrect to suggest that he was taken from the Police Station North Nazimabad. P.W.4 Abdul Qadir` Malim has deposed that, he was (Security Manager of Sheraton Hotel at the time of incident. He has deposed that he is working as Security Manager at Sheraton Hotel Karachi, since October 1982. According to the record of hotel, Mehmood Ahmed had stayed in the hotel on 4‑4‑1986 at 4.51 a.m. He had stayed in the room No.539 situated on 5th floor. He left the hotel on 25‑4‑1986 at about 1‑54 p.m. He has produced Form "D" in original as Ex.15, in which all the particulars of passenger are noted. According to him, the said form was written in the handwriting of receptionist and it bears the signature of accused Mehmood Ahmed. In cross‑examination he has deposed that he has no direct concern with Form "D" which was produced as Ex.15. This card is maintained by receptionists department of the hotel. This is the duplicate card. Voluntarily stated that first copy goes to police department, while the second copy is maintained by the hotel. Various receptionsits on duty maintain this card and make entries in their duty hours. So many foreigners used to stay in the said hotel. On 14‑10‑1986 learned D.P.P. moved an application for summoning the receptionist who had filled in Form "D" Ex.15, and the learned trial judge after hearing the learned counsel for the parties granted the said application on the same date. But it appears from the record that receptionist was not examined by the prosecution and the side was closed vide application Ex.17. I have considered the contention of Mr. Azizullah K. Shaikh, learned counsel for the appellant, Mr.Rashid Tariq Khan, learned counsel for the State, and have also gone through the Record and Proceedings of the case. From the evidence of P. W. Saeeda Moosa it is clear that his taxi from which the narcotics were ultimately recovered was hired by a bearded man, he had taken the furniture from Madina Market, and that it was not the present appellant who had kept the furniture, in question, in his taxi. It was further stated by P.W. Saeed Moosa that the furniture in question from which heroin, charas and cocaine were found, belonged to bearded man, and not to the present appellant. It is surprising that the learned State counsel who conducted the prosecution did not declare this witness hostile, nor cross‑examined him, and remained satisfied with whatever he had said in examination-in‑chief. Likewise, Mashir Ghulam Safdar has also stated that when the taxi in question was intercepted there was one driver and two passengers sitting in the taxi. According to him, one accused was present in Court and the other person who was with beard was not present in Court. He has further stated that police did not secure any passport and other documents from the passenger with beard in his presence. From his evidence also it is clear that there were two persons sitting in the taxi apart from the driver. The evidence of complainant Rais Ahmed shows that only present appellant was sitting with the taxi driver in the taxi but in cross‑examination he has admitted that when he made inquiries from the appellant about articles kept in the taxi he replied that it was not his luggage. The evidence of complainant is contradicted by the evidence of P.W. Saeed Moosa and Ghulam Safdar who had neither been declared hostile nor cross‑examined. They support the version of the appellant, that there was another man with beard sitting in the taxi and evidence of Saeed Moosa taxi driver further goes to show that the furniture from which the narcotics were recovered belonged to that bearded person. The 3rd Mashir namely Mohammad Sadiq has not been examined by the prosecution, One Faryad Hussain a superior of the complainant is said to have been present at the time of recovery but he has also not been examined. In this view of the matter the evidence of complainant /Investigating Officer alone cannot be relied upon, specially in view of the allegations made by the appellant that the police took money from the other man and left him. In Abdul Jabbar v. The State 1987 P Cr. L J 44, it was held by this Court that: "Where the Mashirs have not supported the prosecution case, and other evidence was available but the same was not brought on record, it was unsafe for the trial Court to base conviction of the appellant on the solitary statement of the seizing officer who was also complainant as well as the Investigating Officer." In Jokhium Warner Grohal v. The State 1986 P Cr. L J 2395 it was held that:‑

"Prohibition (Enforcement of Hadd) Order, 1979 section 4 the Investigating Officer not investigating the case properly/ honestly, and it was not proved beyond doubt that the accused was concerned with the articles recovered, the benefit of doubt was given to the accused, and he was acquitted." In view of the above discussion, it is clear that the prosecution has failed to prove its case beyond reasonable doubt and, therefore while extending the benefit of doubt to the appellant, I allow this appeal, set aside the conviction and sentence of the appellant, an acquit him of the charges. He is on bail, his bail bond stand discharged. S. G. D./M‑315/K Appeal allowed.