P L D 2006 Peshawar 128 (PLP)

TARIQ PARVEZ KHAN, C.J:

Mst. Zaubaida Sadruddin is accused of carrying a suit case which was found contain 37 Kgs. of heroin.

2. Facts, as appearing from the record, are that on 31-5-2004 at 0510 hours a telephonic information was conveyed to Police Station Anti-Narcotics Force by Subedar Muhammad Rasheed from Anti-Narcotics Force Staff, posted at Airport that Company Commandar of Airport Security Force including Taj Ali etc. have held up a lady, who was to board a flight through Qatar Airways for Doha. That during briefing, when the suitcase was put to screening machine by Muhammad Hanif, A.S.I., Airport Security Force, the machine could not clear it, therefore, the lady was asked her name which was disclosed as Mst. Zubaida Sadruddin. She was asked about key of the suitcase but she could not produce it, therefore, the lock of suitcase was broken. Nineteen packets of heroin were recovered from the suitcase; total weighment of the heroin came to 37 Kgs. Samples of heroin weighing one gram each from each packet were separated and sent to the chemical examiner, report whereof is Exh.PW-8/4, which is in positive.

3. After completion of investigation, her case was sent up for trial before the, Court of learned Special Judge (CNS) at Peshawar who vide judgment dated 16-12-2005 found her guilty under section 9(c) CNSA and has awarded sentence of life imprisonment to the appellant with a fine of Rs.5,00,000 and in default of payment of such fine to further five years' R.I with benefit of section 382-B, Cr. P.C.

4. To prove the charge, prosecution examined in all nine witnesses. P.W. is Muhammad Mohsin, who is a Travel Agent and from whom one Taj Ali purchased the ticket in the name of present appellant. PW-2 is Siraj, Porter, Peshawar Airport, who has stated that he is alleged to have carried the suitcase containing heroin from a white colour motor car and has put it on the converter belt where the same was suspected. PW-3 is Fida Ullah, Moharrir of Police Station Anti-Narcotics Force, who on receipt of murasila has incorporated its contents into F.I.R. No.16 which is exhibited as Ex.PW-3/1. PW-4 is Samin Jan, Inspector, who has submitted complete Challan. Main evidence of the prosecution would commence from the statements of Muhammad Hanif (P.W.S) A.S.I., Airport Security Force, Taj All (P.W.6) A.S.O. Airport Security Force, Subidar Muhammad Rashid (P.W.7) of Anit-Narcotics Force and Nasir Iqbal Khan (P.W.8) Inspector, Anti-Narcotics Force, who has conducted the investigation followed by Abdul Wahab (P.W.9), FC, Anti-Narcotics Force, who is witness to the recovery memo.

5. Thereafter Mst. Zubaida Sadruddin, appellant, was examined under section 342, Cr.P.C. Her stance is complete denial.

6. No doubt that huge quantity of narcotics, that too, in the shape of heroin is subject-matter of this case i.e. 37 Kgs. heroin but it is not the quantity of narcotics but the quality of evidence which has to be assessed by the Courts.

7. It is always the duty of prosecution to prove charge against the appellant and in narcotics cases to prove its possession.

8. We have gone through the entire evidence with the help of learned counsel for the appellant and learned counsel appearing for the Anti-Narcotics Force.

9. It is consistently argued by learned counsel for the appellant that the prosecution has failed to connect the appellant with the suitcase and in absence of connecting evidence she cannot be convicted for possession of heroin.

10. Learned counsel appearing for Anti-Narcotics Force argued that witness from two different agencies i.e. Airport Security Force and Anti-Narcotics Force have consistently charged the appellant to be accused for the offence and that keeping in view the huge quantity of heroin recovered; there is no question of false plantation. He heavily relied on the statement of Siraj P.W.2, who is Porter at Peshawar Airport and who has taken the suitcase from the luggage boot of white car and then to the belt where Muhammad Hanif P.W.5, who was operating the screening machine, suspected the contents of the suitcase. His argument is that through the statement of Siraj P.W.2, lady accused stands connected with the luggage.

11. Not in this case but in number of other cases this Court has observed that Investigating agencies, be it Police, Anti-Narcotics Force, Customs Department or the Airport Security Force etc. have generally failed to properly investigate the cases, either because of their incompetence or because of lack of training or for any other reason.

12. In the present case not a single witness has stated that at any stage of the investigation appellant was asked, if she was the owner of I the suitcase in question. Siraj (P.W.2) who is the Porter, has stated that he has taken the suitcase from a white motor car driven by someone who actually called him to take out the luggage and that in the meanwhile, a lady also alighted from the car, directed him to follow. In this entire examination?-in-chief he repeats that "a lady" but with no accusation against the appellant nor any reference to her identity.

13. Investigating Agency was bound to have arranged test identification parade through this witness, if the appellant facing trial was the same lady who alighted from the car from which the suitcase in question was taken out and if it was the same lady, who directed P.W.2 to take the luggage what to say saying "her luggage".

14. It is in the evidence of prosecution witnesses that after the suitcase was suspected as it could not be cleared by the screening machine and after the appellant was asked to provide the key to open the suitcase but she could not produce and she made twice telephone call as on her mobile phone which mobile phone was taken into possession by Airport Security Force, later on given to the Anti-Narcotics Force, but neither of the two Agencies bothered to get the SIM Card/call record to find out if the mobile allegedly recovered from her was used and if so at what time and to which person to corroborate her connection with any narcotics smugglers, so to prove the prosecution versions.

15. Even otherwise no evidence is led by the prosecution to prove that any thing in the shape of document or any other article was recovered from the suitcase which contained heroin with its ownership or possession qua appellant. There should have been some inter-connecting article to prove that the suitcase in question was either owned or possessed by the appellant i.e. in the shape of key of the suitcase etc.

16. Because none of the prosecution witnesses has uttered single word that the suitcase in question was carried by her or was taken out of the car on her direction by Siraj (P.W.2) and when P.W.2 has not charged her in his examination-in-chief nor he has identified the lady in regular test identification parade which was not held, we find no nexus of the appellant with the suitcase containing heroin.

17. One question is, however, raised by learned counsel for the Anti-Narcotics Force as to why the appellant, who belongs to Hyderabad (Sindh), has chosen Peshawar Airport for her departure to Khartoom.

18. Mere non-explanation about her presence, would not absolve the prosecution from the charge of proving that narcotics recovered' were owned, controlled or possessed by the present appellant.

19. It is an example case of total incompetence on part of the Investigating Agencies and because of their incompetence; we cannot hold that they have proved the charge against the appellant.

20. The result of the above discussion is that we allow this appeal. Conviction and sentence of the appellant recorded by the learned trial Judge are set aside and she is acquitted of the charge. She be set free forthwith, if not required in any other case. All case property other than those claimed by appellant to be her personal belonging stands confiscated to State. H.B.T./76/P???????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.