1997SCMR543 (PLP)

JUSTICE PIR MUHAMMAD KARAM SHAH (MEMBER). ‑‑‑Zahoor Ahmad Awan and Syed Muhammad Arif, the appellants were granted leave to appeal by this Court on 26th of August, 1992 against their conviction and sentence. Leave granting order is as follows:‑‑ Irshad Ali Memon, F.I.O., Police Station P.N.C.B., Sukkar received information disclosing that through Truck No.MR.2132 contraband drug was likely to be transported from Peshawar to Karachi. A raiding party consisting of officials of law enforcement agency, Ahmad Bakhsh and Sadoro, two citizens from public, was constituted. Near Kundi Farm, on the National Highway, the truck, on intervention by the party, was brought to a stop. On first impression, it was found that Chaff (Bhosa) was loaded in the vehicle. On the front seat, next to driver, another person was sitting. They (driver and his companion) were required to alight from truck. On interrogation, it was learnt that driver's name was Zahoor Ahmad who was resident of Dadial, Tehsil and District Chakwal. Muhammad Arif, his companion belonged to Nathowali, Tehsil Shahpur, District Sargodha. The driver's cabin was searched closely in presence of Sadoro and Ahmad Bux. In the result, from the roof of driver's seat, a cloth bag was recovered which contained 80 k.g. of heroin powder. The drug was taken into possession forthwith. On personal search, a sum of Rs.930 and a photostat copy of National Identity Card were recovered from Muhammad Arif in the same exercise. A Registration Book and a Public Carrier Permit Part‑A were recovered from the dash board of the truck and taken into possession by the raiding party. The samples were taken and sent to chemical examiner for their analysis. In order to prove its case, prosecution produced Irshad Ali, P. W.1 and Ahmad Bux, P.W.2. The appellants when examined under section 342, Cr.P.C. denied the allegations levelled against them. The first appellant stated in the following manner:‑‑ "I am innocent. I was driver of Muhammad Shah Khairpur. I was coming from Punjab in car and when I reached at Rohri PNCB Police stopped car and demanded bribe from me but on my refusal I am involved in this case". The statement of other accused was as follows:‑‑ "I am innocent." 1st Additional Sessions Judge, Sukkur held the appellants to be guilty and sentenced them in the following terms:‑ "In view of my findings on points Nos. l and 2 both the accused are guilty for the offence punishable under Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979. Both the accused are therefore convicted under Article 3/4 Prohibition (Enforcement of Hadd) Order, 1979 and sentenced them to imprisonment for life and to pay a fine of Rs.50,000 each. In default of payment of fine the accused shall suffer R.I. for two years more, and if fine realised the same shall he deposited in Government Treasury. The accused shall be given benefit of section 382‑B, Cr.P.C. The accused are arrested on 27‑3‑1990 and are continuously in custody. The accused are present in' custody and they remanded to custody with conviction warrant to serve out the said sentence." The appeals of the appellants were heard and dismissed by the Federal Shariat Court on 10‑3‑1992 with the following observations:‑‑ "It may be pertinent to observe that no enmity has been alleged by the appellants against witnesses Irshad Ali Memon and Ahmad Bakhsh Bhutto. The two witnesses had no reason to falsely implicate the two appellants. The evidence of the F.I'O. is as good as of another person from the public. No material defect therein was pointed out to discard the evidence. Besides, Ahmad Bakhsh Bhutto was a taxi driver, who leas supported the version of witness Irshad Ali Memon. No defect was also pointed out therein. Their evidence as such inspires confidence. In unequivocal terms the abovesaid two witnesses have said on oath that the both appellants were in the truck wherefrom the contraband article was recovered Both of them as such were in possession of the contraband article and had knowledge of carrying the same in the truck. Their objection that truck has not been produced or owner has not challaned is of no consequence and no benefit thereof can be extended in their favour. Coming to the second aground regarding admissibility of the Chemical Examiner's report, it may be observed that the learned counsel for the appellants mainly pressed his contention on the ground that it cannot be used in Court as evidence as it carries stamp 'not for Court purposes'. We are not convinced by such arguments. The report is given by an expert. Mere stamp of such nature would not make it inadmissible. The second ground as such fails. The contradiction, according to the learned counsel for the appellants, was that witness Irshad Ali Mernon has said that witness Ahmad Bakhsh Bhutto did not reside in Ubauro, whereas witness Ahmad Bakhsh Bhutto has said that he resides in Ubauro. This is not a material contradiction which may effect the recovery of the contraband article from the appellants. The second contradiction pointed out by the learned counsel for the appellants was that P.W.1 Irshad Ali Memon has said the cavity was opened through screw driver and nails, whereas P.W.2 Ahmad Bakhsh Bhutto has said that cavity was broken. This is also not a material contradiction. The ground has no substance. With the help of the learned counsel for the parties we have gone through the evidence of P.W.1 Irshad Ali Memon and P.W.2 Ahmad Bakhsh Bhutto and their evidence corroborates each other. No absurdity or improbability was pointed out therein. The ground is of no consequence. ????????? Turning to the last ground taken by the learned counsel for the appellants it may be observed that at initial stage the appellants desired ` to produce the defence witnesses but they did not produce them. They have also not given full particulars of the witnesses to the Court. Besides, Zahoor Ahmad, appellant, in his statement under section 342, Cr.P.C. has said that he was coming in a car whereas in cross-examination to Irshad Ali Memon the suggestion was that he was travelling in another truck. As such, this stand is self‑contradictory. We feel that the learned trial Court had rightly rejected the application of appellant Zahoor Ahmad regarding examining D.W., Muhammad Shah. Examination of the witness in the circumstances of the case would not have provided any assistance to the appellants even otherwise. No ground was made calling for interference of this Court in appeals. The appeals as such are dismissed. In the end attempt was made for reduction of the sentence. It may be observed that huge quantity of 80 k.g. of heroin was recovered from the appellants. We are not inclined as such to reduce the sentence under Article 3/4 of the Order. Punishment of whipping not exceeding thirty stripes is must, which has not been awarded, by the learned trial Judge. A show‑cause notice in respect of the same was also given to the appellants. We as such are inclined to impose sentence of twenty stripes on each appellant also." Learned counsel submits that the prosecution did not succeed to prove that the appellants had the knowledge that contraband material was concealed in the truck or they were the owners of the drug or the vehicle. The argument being impressive, is tenable inasmuch as prosecution did not produce evidence to demonstrate that it was in the exclusive knowledge of the appellants that heroin was kept in the truck wherein they were travelling. The P.W.s remained evasive and nothing was said by them that the appellants knew that they had been carrying heroin with them. The Courts below did not consider this material aspect of the case. Zahoor Ahmad was driving the truck while Syed Muhammad Arif was sitting with him. Their presence in the truck could not be held to be enough to convict them where it was not proved through reliable evidence that the appellants were transporting a forbidden article. No such evidence against the appellants was led during trial. In the given circumstances, it is not possible to convict the appellants in absence of proof that they were the owners of the truck or the drug. This is unfortunate that the investigating agency did not investigate the case honestly. They had left behind much to be done by them. They confined the investigation, with ulterior motive, to the extent of persons who were found present in the truck. They were required to investigate the case thoroughly to apprehend the real culprits. They did not bother to find out the owner of the truck and the heroin recovered from it. It appears that they had acted, with ulterior motive, to save the skin of the real accused. In such a situation, the possibility that appellants did not know, that the heroin was concealed in the truck alongwith Bhoosa could not be excluded. They might be the owner of the fodder which was loaded in .the truck. It is, therefore, difficult for us to maintain the conviction in the given situation of this case. The appeal of appellants is accepted by setting aside their conviction and sentence by giving them the benefit of doubt. They are released forthwith provided, of course, they are not needed in some other criminal case. N.H.Q./Z‑203/S ???????????????????????????????????????????????????????? Appeal accepted.