1998 PLP 1358 (MLD)

"During the days of occurrence I was posted as Muharrir in present police station. On the day of occurrence i was in Police Station. On the receipt of Murasala brought by constable Zubair on 7-8-96 at 1900 hour I have registered the case vide F.I.R. No: 15 dated 7-8-1996." In substantial conflict with this deposition, Muhammad Younas Khan (P.W.5), S.H.O., is deposing: "As the Murasala was drafted in the premises of the Police Station, therefore, I myself handed over the same Murasala to the Muharrir of Police Station for the registration of the case. " Who is correct then? Whether Gul Dad (P.W.I)` Moharrir, deposing that constable Zubair brought the murasila (Ex. PA/1) or Muhammad Younas Khan (P.W.5), S.H.O. and Investigation Officer who is deposing that he himself drafted murasila at police station and handed over the murasila to the Moharrir at the same police station? Zubair constable (P.W.4) could have resolved this material conflict, but he is silent on this aspect. However, his following piece of deposition is indicative that the incriminating material was kept secret in a manner that even the driver appellant Abdullah might not have known about the existence of such a material in the vehicle he was driving unless his knowledge was proved by the prosecution beyond reasonable doubts in the circumstances of the case. "S.H.O. himself unscrewed the nut bullet of the vehicle. S.H.O. was having the necessary articles for unscrewing."

7. It is also surprising to note that P. W.5 is contradicting himself in the same breath in the following words: "The recovery was made in the premises of Police Station, however, I did not make F.I.R. as the recovery was not made inside the police station building. I have personally weighted the contraband recovered by me. "

8. The learned counsel for appellants has also agitated another weakness in the story of prosecution creating doubts and that is about the delivery of samples of alleged recovered opium in the office of chemical examiner on 15-8-1996. Gul Dad (P.W.1) Moharrir is deposing: "The I.O. handed over the case property to me which I have kept and then on 12-8-1996 the case property was sent to the Laboratory by me through constable Kafeel Ahmad as per directions of the S.H.O. No one interfered with the parcel during my possession." To a suggestion he is replying. "I do not remember the exact time of entrustment of the case property to Kafeel constable. " Kafeel Ahmed (P.W.2) is deposing: "I received the parcels at evening time on 12-8-96, tit was about 4.00 or 4-30 p.m. It is correct that Police Station Chanjal is situated on KKH road. It is also correct that KKH road is a busy road and normally vehicle play on it round the clock. After receiving the parcels I have been waiting for the vehicle but could not get the same and I kept the parcels with me in the Police Station. The next day i.e.

13. I left for Peshawar at 9.00 a.m. I stayed at Mansehra on 13-8-1996. I remained in my house. The parcels were with me and I stayed in my home where I had kept the parcels. I have gone to Mansehra in a wagon. I left for Peshawar from Mansehra at 12.00 noon on 14-8-96 in a wagon and reached Peshawar at about 4.00/4-30 p.m. I stayed in Hujra Hotel in Peshawar, the parcels were with me in the Hotel. I have not gone to any P.S. during my journey from Batagram to Peshawar. I have handed over the parcels on 15-8-96 at 9.00 AM and came back from Peshawar on the same date " The denial about the memory of the time of handing over the samples by P.W.1 and affirmation of P.W.2 that the time was 4 or 4-30 p.m., then the narration about various stays at Mansehra, Hujra Hotel at Peshawar and final delivery on 15-8-96 is indicative that the samples were lying at various places from 12-8-1996 upto 15-8-1996 and this creates doubts about the safe custody in the circumstances of the case.

6. It has also been contended that Muhammad Younas Khan (P.W.5) has combined in himself quadruple positions of complainant, Investigation Officer, S.H.O. and a witness of recovery and since it is so, he was obliged to give a reasonable explanation in respect of his wilful omission to call respectable persons of the locality to attend and witness search and recovery. This is not only a violation of the mandatory provisions of section 103, Cr.P.C. which exposes the recovery to distrust and unreliability, but it is also amounts to mockery of law. Reliance has been placed on, inter alia, 1995 MLD 1532, 1989 P Cr. L J 601 and unreported case of a Division Bench of this Court entitled Taga Khan etc v. The State in Criminal Appeal No. 57/Q of 1996 and Criminal Appeal No.38/I of 1996. All these cases are relevant in view of the following pieces of evidence on the record. To certain suggestions by appellant Abdullah, Muhammad Younas Khan (P.W.5) is replying: "The vehicle was overpowered by me in Shungli Pain at about 3-50 p.m. It is correct that village Shungli Pain is big village comprising of population of one thousand or more. I reached the P.S. Chanjal alongwith accused and vehicle at about 4.00 p.m. The moment we reached P.S. Chanjal the first thing we did the search of the vehicle. It might have taken 2 to 3 minutes searching the vehicle. " Niaz Muhammad (P.W.3) Muharrir is deposing: "It is correct that Peshawar Bazar does fall within the way. It is correct that there remains rush in bazar. It is also correct that Kot Galla Chair lift also does fall in the way. It is also correct that the same Chair left is also in KKH road. It is incorrect that there remains people present round the clock. The witness volunteered that occasionally people remained present at Chair lift. I cannot tell whether three Chair lifts of village Hotel does fall in the way or not. I remained in Police Station Chanjal for a period of 18 months. I have visited Hotel village for many times. There remain people present on Chair lifts of Hotel village. Then Batlay Bazar comes in the way and there remains rush in Bazar. It is correct that there is a Paka built house of one Shah Zada adjacent to Police Station. The houses of Ayub Mian are at a distance of one furlong from Police Station. It is correct that Police Station Chanjal is situated at KKH road, and it is a busy road. Normally vehicles are checked near P.S. Chanjal, however there is no special Barrer for this purpose. Shah Murad road also leads adjacent to the Police Station Chanjal. The vehicle was stopped in front of the Police station. There is no shop near the Police Station. The flour Mill and the rice machine of Khasta Baz Mian is situated at a distance of ten yards from Police "Station and there is a Mosque adjacent to the flour Mill. It is incorrect to suggest that people from the locality come for offering prayer. Witness volunteered that only Police official performed prayer in the said Mosque as the village Abadi is a quite sufficient distance from the Mosque. None from the public was called by the Investigating Officer at the time of search of the vehicle, as the people normally do not associate with the investigation of the case." All these pieces of evidence do suggest that independent persons were available at various positions but they were not joined as witnesses of recovery. When coupled with the following piece of evidence of P.W.5, the doubts created are doubled: "Witness volunteered that there was information of smuggling about the said vehicle. I had not mentioned the factum of information in my murasla as I did not deem it necessary." In these circumstances, I also find myself bound by a ruling of the apex Court cited as 1997 SCMR 1494 which reads: "After hearing the learned counsel for both the parties and perusal of record it may be pointed out that in the instant case the Investigating Officer having prior information ought to have associated disinterested person while laying the picket Nakabandi and then at the time of personal search of the appellant. No doubt in absence of any mala fide or motive for false charge reliance can be placed on the statements of the official witnesses but when recovery of the substance by itself is the main offence the statement of such officials (police witnesses) peed to be properly appraised and minutely scrutinised and the benefit of doubt, if any, arising from the reading of their statement shall be extended to the accused." Another ruling of the Supreme Court of Pakistan cited as 1992 SCMR 1475 at Placentium B, C and D are relevant and bind me to declare that having previous knowledge about smuggling in the vehicle, as admitted by Investigation Officer, first of all he should not have concealed it in his murasila (Ex. PA/1) and F.I.R (Exh. PA) and then he should have arranged for two respectable inhabitants of the locality where the Police Station Chanjal was situated. In the circumstances of the present case, the deposition of P.W.5 (i.e. complainant plus three more in one) is not at all transpiring confidence.

10. The contention that alleged offence had taken place within the jurisdiction of Police Station Batagram, but F.I.R. was lodged out of jurisdiction at Police Station Chanjal appears to be misconceived. In this regard the learned counsel for State has submitted written argument which is sufficient to clarify this contention and is quoted verbatim: "The vehicle containing contraband was signalled to stop near a place named 'Batlay' which lies well within the ambit of Police Station Chanjal and that there is nothing on record to suggest that even the place named 'Shungli Pain' Where the vehicle was intercepted and over powered after chasing it is outside the jurisdiction of Police Station Chanjal. "

11. Since the case is not free from doubt, therefore, extending such benefit the impugned judgment is set aside and the appellants are acquitted from the charge. They may be released if not wanted in any other case.

12. Since none has claimed the ownership of vehicle, it shall remain confiscated to State. The case property shall be kept intact till the expiry of the period of Petition for leave to appeal in the Supreme Court of Pakistan and if it is preferred then it shall remain intact till final disposal of the petition/appeal. H.B.T./1179/FSC Appeal accepted.