Justice Munib Ahmed Khan
Date of hearing 3 1. 0 1. 2 0 0 7.
Date of Judgment . 0 1. 2 0 0 7.
Appellants: Abdul Rasheed and Abdul Hameed through Mr. A. Q. Halepota, Advocate.
Respondent: The State through Mr. Habib Ahmed, Assistant Advocate General
MUNIB AHMED KHAN, J.- Through this Jail Appeal, the appellants have challenged his conviction for life and Rs.1,00,000/- as fine and in lieu thereof to undergo further RI for one year, in Crime No. 4 of 2005, under section 9(c) of the Control of Narcotic Substance Act 1997 awarded to them by Special Judge, CNS, Sukkur by his judgment dated 18.08.2006.
The prosecution has put up its case that on 05.05.2005, the Complainant, Syed Naveed Abbas Shah, Excise Inspector, Rohri Circle, reported that he alongwith EC Abdul Jabbar and EC Zarrar Ahmed with other excise officials was patrolling and near Central Prison-I, Sukkur signaled car No. V-9955 coming from Sukkur and on inquiry, name of the driver was disclosed Abdul Rasheed, while his companion was Abdul Hameed. On search of the vehicle, from a secret cavity, attached to diesel tank, 30 slabs of charas, each weighing one kilogram were found. Out of them two kilogram charas was separated and sealed for chemical analyzer while remaining charas was sealed separately in blue colour plastic bag. Accused were arrested and recovered property was seized under mashirnama attested by EC Zarrar Ahmed and EC Abdul Jabbar.
Both the accused denied the charge against them, hence, the prosecution examined Excise Inspector Syed Naveed Abbas Shah, who produced mashirnama, copy of FIR and Report of Chemical Examiner while another witness EC Zarrar Ahmed was also examined.
Both the accused persons examined themselves. They took the defence that car bearing No. V-9955, in which both of them were allegedly travelling, was robbed on 22.04.2005 and an FIR in this respect was lodged on same date with Levis Police Station Pasni, District Gawadar, Baluchistan. The said FIR bearing No. 66 of 2005 has been exhibited to support their contentions. The accused have also examined three defence witnesses, one is Ghulam Mustafa, Prosecutor Levis Force, who has also produced FIR No. 66 of 2005, another witness is Shazia Hameed wife of accused Abdul Hameed and third witness is Mohammad Akram, Clerk of Excise Motor Registration Wing, Civic Centre, Karachi. According to defence of appellants, they were falsely involved, as after receipt of information about their car on 03.05.2005, they went to Complainant Syed Naveed Abbas Shah but instead of releasing the car, Complainant demanded Rs.3,00,000/- and on their refusal, he involved them in this false FIR No. 04 of 2005 dated 05.05.2005.
Mr. A. Q. Halepota, learned counsel for the appellants has argued that the appellants have taken strong defence, which is supported by government record and government officials and learned trial Judge has wrongly disbelieved the version of defence witnesses, while, he has incorrectly relied upon prosecution version, notwithstanding the facts that the recovery was full of doubt. He argued that according to prosecution, recovery was effected from a secret cavity of the car but no instruments or any metal plate, which according to the prosecution was used for making secret cavity, has been produced nor the person who discovered and thereafter recovered incriminating material was examined. Learned counsel has further argued that although the accused were allegedly arrested from the busy road near Central Jail Sukkur but no private witness was engaged to act as mashir, which makes recovery doubtful. Learned counsel has more relied upon the defence witness and has stated that according to these witnesses, and specially DW-1 Ghulam Mustafa, Prosecutor of Levis Police Station has toppled the case of the prosecution and has fully supported the defence version, which factual position is further supported by DW-3 Mohammad Akram, who is excise clerk, as according to him an intimation about robbery of subject car was made to the Excise Department by the accused on 30.04.2005.
On the other hand, Mr. Habib Ahmed, learned Assistant Advocate General has argued that the prosecution has proved its case beyond doubt but if the defence version is accepted then there will be no case against the accused persons nor he has seriously challenged FIR No. 66 of 2005, lodged with the Levis Police Station, Pasni, District Gawadar.
After hearing the learned counsel, we have observed that against the version of prosecution, the official version of Levis Police as well as FIR No.66 of 2005 recorded by them has come on record. According to Inspector Ghulam Mustafa Levis Police Station, FIR No. 66 of 2005 was lodged by Abdul Hameed on 22.04.2005 about robbery of his Car No.V-9955 by some unknown person from Gawadar was registered in this respect and was conveyed through wireless to District Administrative Officer Levis, as well as, Zonal Director, Levis by telephone. He has further stated that on 03.05.2005, the Levis Force was informed by Excise Police Rohri by telephone that vehicle in question has been recovered at Rohri, as such, FIR No. 66 of 2005 was closed. FIR No. 66 of 2005 has been produced as Ex.17-B. This FIR, on the face of it, have been boldly marked, “File closed. The vehicle recovered from Rohri on 03.05.2005”. This noting was recorded under the signature of Levis Officer on 04.05.2005. The said FIR also disclosed that after it is being lodged, its copy was sent to Judicial Magistrate, Pasni and to other officials. Alongwith the said FIR another paper has been produced, containing the information regarding recovery of car on 03.05.2002 of which copy was also sent to Judicial Magistrate, Pasni and to other officials.
The prosecution has tried to establish that Ghulam Mustafa DW-1, the prosecutor of Levis Police Station has appear at his own without any authority but they failed to establish nor this version can be accepted being contrary to the record, as on 14.03.2006 order was passed by the trial court for summoning three defence witnesses including concerned official from Police Station Levis Pasni, District Gawadar and in response to the notice sent by the trial court for 30.03.2006 and four other dates one Ghulam Mustafa was sent by the Department with office record, who has produced his service card, which shows that the witness was deputed by the concerned department, who appeared with record, having authority to appear as a witness.
According to DW-2, who is wife of appellant Abdul Hameed, it was alleged that Inspector Naveed Abbas Shah demanded a sum of Rs.3,00,000/- for return of car from her husband and on his failure, he was involved in false case. He has produced a letter to the Advisor of Chief Minister, complaining thereby the demand of the above Inspector. The third witness Mohammad Akram, excise clerk has produced his authority letter and a letter from accused Abdul Hameed dated 30.04.2005, requesting thereby to keep the registration file of car in safe custody. The said witness, in his evidence, deposed that according to his office record, there is an intimation about robbery of car No.V-9955 on 22.04.2005 and FIR No. 66 of 2005 in this respect was lodged with Police Station Levis Pasni.
Now taking defence witness Ghulam Mustafa, it appears that although the said witness has disclosed lodging of FIR No. 66 of 2005 under section 392 PPC, information on 03.05.2005 from Excise Police through phone about recovery of the said car as well as closure of the said FIR after information on 03.05.2005 and sending both the copies to the concerned Judicial Magistrate Pasni, but in cross-examination, the above documents have not been challenged rather unnecessary questions have been asked, which shows that version of DW-1 has been admitted alongwith contents of FIR No. 66 of 2005, which factual position has further been supported by another excise official Mohammad Akram. The evidence of these two witnesses disproved the version of the prosecution about arrest of accused persons and availability of car at the given point, as the car, at that time, would have been in excise custody as by that time, after its recovery on 03.05.2005, it has not been released under any order of competent authority.
Now the presumption further goes with the defence witnesses in respect to demand of money by Inspector Syed Naveed Abbas Shah. In these circumstances, we do not find any truth in the prosecution case, as it has failed to establish the guilt against the accused persons, rather, defence version is correct to the extent that accused were falsely involved in FIR No. 66 of 2005 and apparently for some illegal motive.
In the above circumstances, we by a short order have accepted the appeal and set aside the impugned judgment dated 18.08.2006 and above are the reasons for the same.
Before parting with the above judgment, we also direct the office to send the copy of this Judgment to Director Excise & Taxation, Karachi to take appropriate action against Inspector Syed Naveed Abbas Shah for acting contrary to his duty and misusing his power by lodging false FIR No.04 of 2005, and report compliance to the Registrar of this Court
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Samie