2023 P Cr (PLP)

SHAUKAT ALI RAKHSHANI, J.

Nazir Ahmed, the appellant has called in question the judgment dated 31.12.2021 ("impugned judgment") authored by learned Special Judge, constituted under Control of Narcotic Substances Act, 1997-Sessions Judge, Killa Abdullah at Chaman ("Trial Court"), whereby in a case vide FIR No.53 of 2020 registered within the precincts of Police Station CTD Balochistan, Quetta under the offences punishable under section 11-F(6) of Anti-Terrorism Act, 1997 ("Act of 1997") and sentenced to suffer RI eighteen (18) months and to pay fine of Rs.10,000/- or in default thereof to further undergo one month SI with the premium of section 382-B, Cr.P.C.

2. Concise but relevant facts are that on 23.11.2020 on a spy information CTD Police at about 9:45 pm apprehended the appellant, while riding a motorcycle CD-70 bearing No. MF-9251 near Killi Luqman, Killa Abdullah, who was found in possession of 2 jerry-cans of opium, weighing 29 kgs each with a flag of a proscribed organization 'Daesh', whereof aforesaid articles were taken into possession through recovery memo and after necessary investigation, he was booked and tried by the Trial Court. Denial of the formal charge led the prosecution to produce as many as six witnesses to bring home the indictment. The appellant was examined under section 342, Cr.P.C., who denied the allegations and professed innocence, however, did not opt to adduce defence evidence, thus, the trial culiminated to a verdict of guilt, whereby on 31.12.2021 the appellant was convicted and sentenced in the terms mentioned in para supra.

3. Learned counsel for the appellant inter alia contended that the appellant is innocent, who has falsely been implicated in the instant case. He maintained that except alleged recovery of a flag black in colour similar to that of a proscribed organization nothing has been brought on record against the appellant to establish that he has committed the offence for which he has been convicted and sentenced. According to him, the impugned judgment suffers from misreading and non-reading of the evidence, which has made the impugned judgment a nullity in the eyes of law, hence, the same merits to be set at naught. Conversely, learned A.P.G. opposed the contention so put forth by learned counsel for the appellant and argued that the recovery of the narcotics and the flag of Daesh is sufficient to hold the appellant guilty of the charge. Added further that the finding of the guilt arrived at by the Trial Court is based on proper appraisal of the evidence, therefore, the appeal being without merits requires to be dismissed.

4. Heard. Record pondered upon with the able assistance of learned counsel for the adversarial parties. The case of the prosecution rests upon the ocular account furnished by Abdullah ASI complainant (PW-1), recovery witness Abdul Zahir SI (PW- 2), Attaullah ASI (PW-3), Muhammad Malik SI (PW-4) and last but not the least Investigating Officer ("IO") Muhammad Ashraf (PW-6). Farhan Qayum HC (PW-5) is In-charge Malkhana, whose statement with regard to safe custody of narcotics in Malkhana is relevant but has no significance regarding the indictment of the instant case.

5. The disclosure allegedly made by the appellant in the presence of Muhammad Malik SI (PW-4), whereof memo of disclosure (Ex.P/4-A) was prepared is the bedrock of the case as per prosecution. Indisputably, the flag was not recovered in consequence of the said disclosure, therefore, the disclosure amounts to a confession before the police officer, which is inadmissible under Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984 ("QSA of 1984"), squaring out the disclosure (Ex.P/4-A) from the purview of Article 40 of the QSO of 1984. The SRO No. 690(I) dated 15.07.2015 (Ex.P/3-A) merely envisages 'Daesh' as proscribed organization, which is no help to indicate the appellant.

6. In such view of the matter, merely possessing a flag, having the resemblance to the flag of Daesh or some other proscribed organization, itself alone shall not constitute an offence under section 11-F of the Act of 1997. To establish the indictment, independent, tangible and strong corroborative evidence is required, but the prosecution has failed.

7. The reasoning of the Trial Court may be considerable to the extent of indictment and case of recovery of opium, but not to hold the appellant guilty of the crime as enunciated under section 11-F of the Act of 1997. For what has been discussed hereinabove, the appeal is allowed, the conviction and sentence awarded by the Trial Court to the appellant vide judgment dated 31.12.2021 is set-aside, consequently, the appellant is acquitted of the charge and he be set free if not incarcerated in any other case. MQ/192/Bal. Appeal allowed.