2008 PLP 797 (MLD)

AMIR HANI MUSLIM, J.

Through this appeal the appellant has impugned the judgment, dated 19th June, 2001 passed by the learned Special Judge for C.N.S. Nausheroferoze in Special Case No.25 of 2000 Re-State v. Taj Muhammad offence under section 9(c) of the C.N.S. Act, 1997 in Crime No.4 of 2000, Excise Circle Nausheroferoze whereby he was convicted and sentenced to undergo for life imprisonment and to pay fine of Rs.5,00,000 (five lacs) or in default of payment of fine to suffer R.I. for further three years. The facts as they appear from the record are that on 19-6-2000 at 9-00 a.m. near the garden of Anwar Shah situated near Bhiria curve on National Highway the appellant was found transporting 50 kgs. of Charas and 25 kgs. of Opium in an Oil Tanker bearing No.QAD-8853 in contravention of section 6 of the Control of Narcotic Substances Act, 1997. The Excise, Police party headed by Excise Inspector Wajid Ali Soomro, Nausheroferoze Circle while on checking caught hold of the appellant and such F.I.R. was registered on the same date at 11-00 a.m. at Excise Circle Officer, Nausheroferoze. After completion of usual investigation appellant was challaned under section 9(c) of C.N.S. Act, 1997. On 19-2-2001 charge was framed against the appellant under section 9(c) of C.N.S. Act, 1997 to which he pleaded not guilty and claimed trial. In order to prove the charge, the prosecution examined two witnesses namely Excise Inspector Wajid Ali as P.W.1 and FD Allah Warayo as P.W.2 and closed its side. The appellant was examined under section 342, Cr.P.C. who claimed that he was sitting as a passenger in the Oil Tanker and denied that he was either driver of the Oil Tanker or had any knowledge of contraband items. After hearing the parties, the learned trial Court had passed the impugned judgment which is challenged in this appeal. It is contended by the learned counsel for the appellant that the impugned judgment is bad in law as it based on the deposition which is full of contradiction. According to the learned counsel for the appellant that Exh. B., which is the entry of departure produced by P.W. Wajid Ali Soomro Excise Inspector reflected that P.W. 1 and his staff had left the Excise Circle of Nausheroferoze at 8-00 a.m. on 19-6-2000. He further submits that this entry is attested by P.W.1 and as per the contents of this entry the appellant was arrested near the Garden of Anwar Shah by stopping the Oil Tanker bearing No.QAD-8853 and on search found 50 kgs. of Charas and 24 kgs. of Opium were recovered from the Oil Tanker and thereafter appellant was arrested under Mushirnama of arrest and property was sealed on the spot. The learned counsel for the appellant had argued that this Exh.8 was a fabricated document inasmuch as the time of departure of the Excise Staff was shown as 8-00 a.m. whereas the arrest of the appellant and recovery of the contraband articles from the Oil Tanker was effected after 10-00 a.m. and such events cannot be form part of the Exh.8 which was stated to be kept at 8-00 a.m. by the I.O. According to the learned counsel both the prosecution witnesses have deposed in their cross-examinations that they reached at Bhiria curve at 10-00 a.m. In cross-examination of P.W.2 Allah Warayo he has stated that it took one hour at the place of Wardat in completing all the formalities, whereas Mushirnama of place of Wardat Exh.6 shows that the time of arrest and recovery as 10-00 a.m. The learned counsel for the appellant further contended that FD Allah Warayo and FC Abdul Ghani had acted as the mushirs and according to P.W. Wajid Ali he had one of the mushir went inside the Tanker and found a secrete cavity in the front portion of the Oil Tanker which cavity was closed with nuts and bolts and was opened with the help of spanner. On opening of the cavity he found 25 polythen bags of light reddish colour in the cavity. To cross-examination of P.W.1 he has stated that he went inside the tanker, first and then mushir ED-Allah Warayo came inside the Tanker. The prosecution has not examined mushir FC Abdul Ghani. In cross-examination of the P.W.2 ED Allah Warayo, who was one of the mushirs of arrest and recovery he has not stated that he has gone into the tanker after P.W.1. He in his cross-examination had stated that he and Dur Muhammad were receiving contraband items from P.W.1 and EC Abdul Ghani. The learned counsel for the appellant submits that this by itself showed that ED-Allah Warayo P.W.2 never went inside the Tanker with P.W. Wajid Ali Soomro. Even according to the learned counsel for the' appellant it has come in evidence of the P.W. 1 Wajid Ali Soomro that he did not bother to find out the real owner of the Oil Tanker. It has also come on record that even the Engine and Chassis numbers of the Oil Tanker from which the contraband articles were recovered were not mentioned in the mushirnama. In support of his arguments, he has submitted that the prosecution has failed to prove the case against the appellant has relied upon the case of M. Ismail v. State PLD 1970 Kar. 261 to 268), Latif v. State (1992 PCr.LJ 116 to 118), Loung v. State (1999 PCr.LJ 595), Abdul Sattar v. State (2002 PCr.LJ 51), Ashiq Hussain v. State (2001 PCr.LJ Kar.) 1736 and in the case of Zahoor Ahmed Awan v. The State (1997 SCMR 543). As against this, the learned A.A.-G has supported the impugned judgment and has submitted that appellant was arrested from the spot and recovery of huge quantity of contraband article was effected from the Oil Tanker, which he was driving. We have heard the learned counsel for the appellant and have perused the record. We find that Exh. 8 entry of departure of Excise staff shows the time of departure at 8-00 a.m. However, we have noticed that same entry has incorporated the arrest of the appellant which arrest and recovery of contraband items according to the prosecution was effected at 10-00 a.m. If the entry was kept at 8-00 a.m. how could the arrest of the appellant and the recovery of the contraband articles from the Oil Tanker can find place in such an entry. This entry belies the prosecution story such an entry is either afterthought or has been kept with dishonest intent to give the benefit to the appellant. The other two material contradictions between the deposition of the both witnesses is that Excise Inspector Wajid Ali Soomro states that by 10-00 a.m., the entire formalities were completed whereas the prosecution witness FD-Allah Warayo has deposed that they reached Bhiria curve of 10-00 a.m. and after oil tanker was stopped it took them one hour to search and complete the formalities to effect the arrest of and recovery from the Oil Tanker whereas the time for recovery and preparation of mushirnamas showing "the entire formalities were completed at 10-00 a.m. This contradiction is also material. Additionally P.W.1 Wajid Ali Soomro in his evidence has stated that he went inside the Tanker first and then ED-Allah Warayo and P.W.2 had followed him and they started taking the Charas and Opium from the Tanker and passed it on to FC-Abdul Ghani and EC-Dur Muhammad whereas the P.W.2. FD-Allah Warayo in his cross-examination has stated that P.W. Wajid Ali Soomro went inside the tanker first and mushir EC-Abdul Ghani followed him and thereafter both of them started giving them Charas and Opium from the tanker. It clearly establishes that ED-Allah Warayo did not go inside the tanker with the P.W. Moreover, the Excise Inspector Wajid Ali Soomro has also failed to make efforts to arrest the owner of the tanker. No plausible explanation for non-tracing of the owner of the oil tanker was given by the I.O. This by itself is sufficient to presume that the investigation conducted by him was dishonest. The Inspector Wajid Ali Soomro in law was required to find out the whereabouts of the owner of the Oil Tanker, which he has failed to do so. It is unfortunate that the I.O. did not investigate the case honestly. The I.O. has conducted the investigation with ulterior motive inasmuch as he has shown the appellant driving the oil tanker but he did not bother to find out the actual owner of the oil tanker and it appears that it was done with ulterior motive to save the skin of the real accused. Under these circumstances, it cannot be ruled out that the appellant did not know that the oil tanker contained the contraband articles in its secret cavity. Mere presence of the appellant in tanker is not sufficient to connect him with the offence unless the prosecution brings material to establish that he had the knowledge of contraband articles lying in the oil tanker. In the present case we have noticed that there were material contradictions which existed in the evidence of the two prosecution witnesses. The prosecution in the face of the evidence produced in the case has failed to prove that the appellant was in knowledge of contraband articles. The Appellant was not found to be the owner of the said Oil Tanker from which the alleged recovery has been effected. The conduct of the I.O. Wajid Ali Soomro was dishonest as he has not bothered to find out the owner of the tanker nor there was any explanation in regard to the Exh.8. All these factors are sufficient to hold that evidence of both the prosecution witnesses was not confidence inspiring and had material contradiction, the benefit of which must be given to the appellant. The entry Exh.8 damages the prosecution story by creating doubts. We are of the opinion that the impugned judgment was passed believing the evidence of the prosecution story though it had material contradictions and reliance upon such evidence, which was not legal to convict the appellant was unsafe. We for the aforesaid reasons giving the benefit of doubt to the appellant and allow this appeal and direct that the appellant be released from Jail forthwith if he is not required in any other case. H.B.T./T-33/K Appeal allowed.