IN THE HIGH COURT OF SINDH AT KARACHI

J U D G M E N T

Cr. Appeal No.526/2005

Date order with signature of Judge

Present:

1. Mr. Justice Muhammad Afzal Soomro, CJ.,

2.Mr. Justice Khawaja Naveed Ahmed,

Appellant Mir Muhammed through Mr. Aamir Mansoob Qureshi, advocate.

The State through Syed Ashfaq Hussain Rizvi, Special Prosecutor for ANF.

…..

KHAWAJA NAVEED AHMED, J.- This Appeal has been filed by the Appellant Mir Muhammed S/o Saifullah, who has been convicted by the learned Special Court No.1, Control of Narcotics Substance, Karachi in Special Case No.137/2004 under Section 6/9-C of CNS Act 1997 in Crime No.50/2002 for possessing 24 kg of Charas. The Court has sentenced him to suffer imprisonment for life and fine of Rs.One million and in default of payment of fine to suffer R.I. for three years more. The Appellant was also convicted under Section 14&15 of CNS Act 1997 in Crime No.51/2002 for abatement and association with absconding accused Kazim and Haji Yousuf who were in possession of Charas weighing 20 kg. The Appellant was sentenced in this case to suffer R.I. for 10 years and to fine of Rs.100,000/- and in default of payment of fine to suffer R.I. for one year more. Both the sentences were to run concurrently.

2. Brief facts of the prosecution case of FIR No.50/2002 are that on 21-11-2002 Mr. A.D. Mehmood Baig, along with raiding party of PS ANF, Clifton reached near Nazimabad Petrol Pump, where A.D. Mehmood Baig has receive spy information that Appellant was available along with Narcotics in Room No.11 of Saifullah Bangash Hotel. The case of the prosecution is that the said ANF party proceeded to the Room No.11 of Saifullah Bangash Hotel and had seen Appellant present in the room. He was putting slabs of charas in carton. The Appellant was arrested along with the charas, which he was put in the carton. It is mentioned in the FIR that 10 slabs of charas were found in the carton while 14 slabs were available in the table lying in the room. The recovered charas was weighted on the spot, which was found to be 24 kg. The I.O. has taken sample of 10g from each slab, which was sealed on the spot and was sent for chemical examination. As private persons available there had declined to act as witness in this case, therefore, all the proceedings were conducted in presence of ASI Shakeel Ahmed and PC Shahid Raza. ASI Shakeel Ahmed and PC Shahid Raza have acted as Mushirs. The Appellant was arrested by the raiding party of ANF. It is alleged that after his arrest the Appellant has disclosed to the Complainant that he was packing this charas for smuggling purpose out of Pakistan. He has further disclosed that one Kazim and other person Haji Yousuf are also in possession of charas, which is available on Plot No.6, Street No.14, Ferozeabad Colony, Nazimabad. On the lead given by the arrested accused i.e. the present Appellant, the raiding party of ANF rushed towards the plot. It is mentioned in the FIR No.51/2002, which was subsequently registered that both the absconding accused Kazim and Haji Yousuf were holding charas in their hands which they upon seeing the police party had thrown and made a good their escape. The bag thrown by Haji Yousuf contained 12 kg charas, while the bag thrown by Kazim contained 8 kg of charas. The 10g of charas was taken as sample from each slab and it was sealed under a separate Mushirnama. Same Mushirs namely ASI Shakeel Ahmed and PC Shahid Raza have acted as Mushirs and a separate FIR No.51/2002 was registered in respect of subsequent recovery.

3. The ANF has submitted two separate challans in the Court. However, the Court had amalgamated both the cases and had framed single charge in respect of both the offences. The charge framed by the Court is reproduced hereunder: -

“I, Ali Nawaz Pirzada, Judge of Special Court (C.N.S) Karachi Division do hereby charge you: -

Meer Muhammed S/O Saif-ullah

as follows: -

That on or about 21/11/2002 at 2100 hours inside the Room No.11, Hotel Saifullah, Nazimabad No.1, Karachi, Inspector Ghulam Abbass Memon of PS ANF Clifton, recovered Twenty Four (24) Kilograms of Charras in shape of 24 Slaps from the room in which you were found present while arranging the Slabs of Charras and that you thereby committed an offence punishable U/S 9-(c) of C.N.S. Act 1997 and within the cognizance of this Court.

And I hereby direct that you be tried by this Court for the above said charge.

Given under my hand and seal of the Court this 7^th day of April, 2003.

(ALI NAWAZ PIRZADA)

J U D G E

SPECIAL COURT (C.N.S) KARACHI DIVISION”

4. The appellant had pleaded not guilty to the charge and had claimed trial. Prosecution in support of its case had examined PW-1 ASI Shakeel Ahmed at Ex.10. He is Mushir of arrest and recovery. He has produced Mushirnama of arrest and recovery as Ex.P/1 and P/2. He has repeated the story mentioned in the FIR. He was cross-examined by the learned counsel for the accused Mr. I.A. Hashmi. Who had confronted him with a list of cases in which ASI Shakeel Ahmed is witness. The list is on record as Ex.P/3. The witness has admitted that all these cases mentioned in the list are pending in the same trial Court. He again stated that case crime No.48/2002 State v. Rashid is not pending in this Court, but in the Sessions Court, Malir. This witness said that he does not know total number of rooms of hotel of Seth Saifullah. The witness had admitted that the restaurant and all the shops were opened at the time when the raiding party reached at the hotel of Saifullah. The witness has admitted that neither in the mushirnama nor in his statement under Section 161 Cr.P.C. it is mentioned with reference to the name of people of the restaurant and the shops that they were asked to act as Mushir, but they refused to act as Mushir in this case. The witness has admitted that the raiding party had not enquired about the number of employees of the hotel of Saifullah, though employees of the hotel were available at the reception. It is admitted by the witness that register maintained at the counter/reception of the hotel for maintaining entries in respect of customer/passenger of the hotel was not checked by the I.O. or A.D. Mehmood Baig in his presence. He has stated that when they reached at Room No.11 the door of the room was lying open and people were passing from there. Voluntarily says only the employees were passing from there. The witness has admitted that articles A, C and D are in the handwriting of PC Siraj who is not a witness in this case.

5. The second witness is PC Shahid Raza, who is co-mushir and is police constable in ANF Clifton. In examination-in-chief he has repeated the same story and in cross-examination by the Advocate he has admitted that he has acted as Mushir in 5 or 10 cases of ANF. Almost same cross-examination has been repeated on this witness and the replies are also same. He has also admitted that all the shops in the hotel building at the time they visited the building were opened, passersby and people were available in the shops. He has admitted that it is a residential hotel and the restaurant is also there in the same building on the ground floor. He has admitted that 40/50 persons can sit in the restaurant. He has admitted that 15/20 customers were sitting in the restaurant when the raiding party reached there. The witness had admitted that accused Mir Muhammed is the owner of the hotel. The earlier witness and the present witness had denied a fight of accused Mir Muhammed with the raiding party on account of foisting of charas. This witness has also admitted that on Article A to D all names have been mentioned by PC Siraj, who is not witness in this case.

6. The third witness is Inspector Ghulam Abbas, who is the I.O. of this case. He has admitted that ASI Shakeel Ahmed has acted as Mushir in 4/5 cases registered by Ghulam Abbas while PC Shahid Raza has acted as Mushir in about 20 cases registered by Ghulam Abbas. The I.O. has stated as under: -

“It is correct that in Saifullah Bangash Hotel there are rooms for customers to live in. I do not know total number of the rooms. There are shops and restaurant also in that building. It is correct that the shops were opened and the customers and people working in the shops were available.”

7. The witness had admitted that the hotel is situated on a main road and traffic was running there. The witness has denied that one Sarfaraz Ali Shah was keeping Room No.11 since many days before the raid. The witness has admitted that he does not know total number of the rooms in the hotel. He had admitted that there are residential rooms in Saifullah Bangash Hotel. Witness was subject to lengthy cross-examination and it appears that the main aim of the cross-examination was that through the independent witnesses were available at the place of raid, but the I.O. had chosen to own witnesses who are not only the members of the raiding party, but are also witnesses in number of cases pending in the same court of similar nature. This witness has produced FIR No.50/2002 and 51/2002, PS ANF, Clifton, Karachi. He has also produced Chemical Examiner Report, which is positive.

8. The learned defence counsel during the trial has moved an application under Section 548 Cr.P.C. for summoning A.D. Mehmood Baig under whose supervision the raid was conducted. The Court had allowed the application and ordered issuance of summon for Mehmood Baig by order dated 30-7-2004. Mehmood Baig never appeared in Court.

9. Appellant was examined under Section 342 Cr.P.C. He had denied the prosecution case and had pleaded innocence and false implication in this case. He has not examined himself as a witness but has given a long list of witnesses to support his case. He has examined two witnesses namely Muhammed Tahir and Muhammed Aslam in his defense as Ex.22 and 23. The Defence witness Muhammed Tahir has stated that at the time of the raid he was sitting in the Hall of the hotel after offering Taraveeh Prayers was taking tea. Appellant was sitting on the counter in the hall of the Hotel for collecting money from the customers. This witness has supported the case of the accused and has stated that nothing was recovered from him. Similar is the case of other witness Muhammed Aslam who has also supported the case of accused.

10. I have heard learned Advocate Mr. Amir Mansoob Qureshi. He has argued that the prosecution has failed to prove the case against the Appellant beyond reasonable doubt. The learned Advocate has argued that though the place of incident is a hotel, but the Complainant had not obtained any search warrant from any Court and as such has violated the provisions of Section 21 of the CNS Act, 1997. The learned Advocate has argued that without obtaining the search warrant raid as well as alleged recovery are illegal and of no legal consequences. The second point taken by the learned counsel was that the place of incident is thickly populated area. Still not a single private witness has been examined. He has relied upon the latest authority of the Division Bench of this Court Mr. Justice Muhammed Moosa K. Leghari and Mrs. Justice Yasmin Abbasey, reported in PLD 2008, Karachi, Page 8 KHALIL AHMED V. THE STATE, wherein their Lordships have observed as under: -

“It is quite certain that the applicability of provisions of section 103, Cr.P.C. has been excluded under the Control of Narcotic Substances Act, yet, it does not debar or prohibited the officers making recoveries on such places, which are necessarily surrounded by people to take some steps/measures to associated private persons in the process to as to lend credence to the recovery and create confidence in general public, which is in the process of quick erosion so far as the role of police and other law enforcement agencies is concerned.

It has been ruled by the Honourable Supreme Court in the case of Muhammed Hashim v. The State (PLD 2004 SC 856) that under the Control of Narcotics Substance Act 1997 stringent punishments have been provided if a case under section 9 of the Act is proved. Therefore, the provisions of the said Act have to be construed very strictly.

It is high time for the Courts to ensure that the proceedings of recovery and seizure are made in the most transparent and confidence inspiring manner so as to protect the innocent citizens from the highhandedness of the law-enforcers, and to save them from the agony of uncalled for trials and tribunals.”

11. The Honourable Division Bench in the same authority in Para-18 has observed as under: -

“18. In the circumstances, the case of the prosecution is highly doubtful. The conviction cannot be based on such type of trials which are barred by glaring infirmities. However, the trial Court resolved all the doubts in favour of prosecution and convicted the appellant, while losing sight of well-entrenched principle of law, that the burden was always on the prosecution to prove the charge beyond all reasonable doubts. The rule adopted by the trial Court, to say the least was not conducive for the safe administration of justice.”

12. Learned counsel for the Appellant has also relied upon 2004 P.Cr.L.J. Page 1224 SAWAR JAN V. THE STATE. The Division Bench of Peshawar High Court has observed as under: -

“It is settled law that the onus to prove guilt is always on the prosecution, which is to prove that it is the accused person who has perpetrated the offence and thus, the prosecution is to independently discharge those onus irrespective of any plea taken by the accused. The mere fact that the police witnesses had no enmity or grudge or motive to falsely implicate the accused persons, by itself, is not a strong circumstance to hold that whatever has been alleged by the prosecution should be implicitly relied upon without asking for supporting evidence. This circumstance does not absolve the prosecution of its initial duty to prove its case beyond a pale of reasonable doubt.”

13. He has relied upon 2000 MLD Page 618 GHOUS BUKHSH alias GHOUSA V. THE STATE, wherein the Division Bench of Balochistan High Court, Quetta has observed as under: -

“12. It is now well settled proposition of law that in criminal cases the burden of proving its case rests on the prosecution which is duty bound to prove its case, against the accused, beyond reasonable doubt. This duty, it may be mentioned, does not change or vary even in a case in which no defence plea is taken by the accused. The defence plea is always to be considered in juxtaposition with the prosecution case and, in the final analysis, if defence plea is proved or accepted then the prosecution case would stand discredited/shattered. However, if the defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case, then in that case too, it would be enough. It may be noted that in case it is not established, at all, no benefit would accrue to the prosecution on that account and its duty to prove its case beyond doubt would not be diminished even if the defence plea is not proved or is found to be palpably false. (Reference is made to the authority reported in 1998 P.Cr.L.J page 808).”

14. The learned counsel has relied upon PLD 1992 SCMR, Page 1134, WAZIR MUHAMMED V. THE STATE. This is a case of heroine. The Honourable Supreme Court on the point of defense plea has observed as under: -

“7. We have considered the defence taken up by the appellant in the light of the prosecution evidence and we find that the learned appellate Court did not pay any attention to the defence taken up by the appellant. In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution. The case set up by the appellant has certainly created doubt in our mind about the truthfulness of the case of the prosecution. The explanation given by the appellant is quite plausible and the possibility cannot be ruled out that the heroin was owned by the passengers who ran away from the spot.”

15. The learned counsel Syed Ashfaq Hussain Rizvi, Special Prosecutor has supported the judgment of the trial Court and has stated that provisions of Section 103 Cr.P.C. have been specifically excluded under Section 21 of the Control of Narcotics Substance Ordinance. He has relied upon NLR 2001, Criminal, Page 387, Fida Jan v. The State on the point of search warrant and 2003 SCMR, Page 1237, MUHAMMED HANIF V. THE STATE. The Honourable Supreme Court of Pakistan in 2003 SCMR Page 1237 has observed as under: -

“3. We have carefully examined the respective contentions as agitated on behalf of petitioner in the light of relevant provisions of law and record of the case. We have perused carefully the judgment, dated 13-8-1997 passed by learned Sessions Judge, Mianwali, and the judgment impugned. We threshed out the entire evidence with the assistance of learned Advocate Supreme Court on behalf of petitioner. After having carefully scrutiny of the entire record we are of the view that prosecution has established the factum of recovery beyond shadow of doubt and thus proved the accusation to the hilt. We are not persuaded to agree with learned Advocate Supreme Court on behalf of petitioner, that since the raid was conducted and investigation made by an unauthorized police officer in violation of the mandatory provisions as contained in sections 21 and 22 of the Control of Narcotics Substances Act, 1997. The whole trial has vitiated for the simple reason that arrest, seizure and investigation by an incompetent police officer would not vitiate the trial at the best such an irregularity can be cured under section 537 Cr.P.C. as it has caused no prejudice to the petitioner. in this regard we are fortified by the dictum laid down on State v. Bashir (PLD 1997 SC 408). A similar proposition was examined in case Shivbhat v. Emperor (AIR 1928 Bombay 162) wherein it was held as under: -

“A conviction or acquittal does not depend upon the question what particular officer actually conducts the investigation which results in his trial. That is determine mainly by the evidence that is given at the trial and considered; and the question whether that evidence has in the first place, being elicited by an inspector or by a Sub-Inspector is of very minor importance and does not really affect the result of a trial, except to this extend that the theory is that the higher the rank of the police officer investigating, the more carefully and unimpeachable his inquiry is likely to be. Therefore, an irregularity occasioned by a Sub-inspector investigating into an offence, while investigation should have been made by an inspector, is curable by section 537.”

16. In NLR 2001 Page 387, Fida Jan v. the State on the point of search warrant the Honourable Supreme Court of Pakistan has observed as under: -

“We have considered the implication of section 20 of the Act. It appears that the law-givers have couched this section of law in such manner that it does not place a mandatory obligation upon the investigating agency to obtain search warrant from the Special Judge before conducting a raid. However, we may mention here that all parts of a statute are required to be enforced in letter and spirit and no plea can be entertained that a particular part of a statute is redundant. But from the language employed in a statute it can be gathered whether it is mandatory or directory in its nature. We have noticed that in Section 20 of the Act word “may” has been used with reference to obtaining search warrants by the agency who intended to effect search of a house, place, premises or conveyance, etc. It is also known principle of interpretation of statute that word “may” sometimes can be used as “shall”. But perusal of section 20 of the Act suggests that law has not prescribed consequences of conducted search without obtaining the warrants from Special Court. Thus, we are of the opinion that it is directory in nature, therefore, depending upon facts and circumstances of each case if the Investigating Agency has not obtained search warrants from Special Judge before conducting raid in a house for the recovery of narcotics, this reason alone would not be sufficient to vitiate the trial. This argument can be strengthened by an added reason as well that apparently no prejudice has been caused to petition as is evident from the record of the case, by conducting raid at his home, by the C.I.A. Staff in pursuance whereof huge quantity of Charas was recovered.”

17. The cases cited by Syed Ashfaq Hussain Rizvi are not applicable in this case as during cross-examination the learned counsel had put the question to the I.O. in respect of search warrant, but at the time of argument no such argument was advanced. The second authority reported in SCMR 2003 Page 1239 is in respect of investigation by an unauthorized officer. This plea has not been taken by the Advocate for Appellant in this case. I am in respectful agreement with both the authorities cited by the learned Special Prosecutor Ashfaq Hussain Rizvi, but both the authorities cited by him are not applicable on the facts of this case. The plea of investigation by unauthorized office as well as plea of search warrant has not been taken by the learned defense counsel and as such both the authorities are of no help to the prosecution in this case.

18. We have gone through the entire evidence recorded by the prosecution in this case with the assistance of learned defense counsel as well as the learned Special Prosecutor, ANF. The evidence of prosecution consists of only three officials, one Constable, one ASI and one Inspector. It is an admitted position that incident had taken place in a thickly populated area where number of people were available in the restaurant. Admittedly it is a hotel. The I.O. had neither ceased the register of the hotel from where it could have been proved that who was in possession of Room No.11 on the relevant date and at the relevant time. This material piece of evidence was not collected by the I.O. while conducting the raid at the hotel. Moreover Saifullah Bangash Hotel is located at a thickly populated area. Availability of independent witnesses at the time of raid was not difficult as admitted by the prosecution witnesses. I.O. has not made any efforts to invite any citizen to act as Mushir in the raid party. Police Constables are available outside the hotel. The I.O. has not even asked them to act as Mushir. He has relied upon the testimony of his own two subordinates, who always accompany him. the major dent in prosecution case has been caused by non-availability and non-appearance of A.D. Mehmood Baig, who was supervisor of raiding party. At first instance he was not cited as a witness. Though amongst the raiding party, he was most senior and respectable person. He avoided to be the witness. Secondly when on Court’s order he was summoned for evidence he declined to attend the Court and prosecution had closed its side without examining A.D. Mehmood Baig. The benefit of this type of conduct by the prosecution agency always goes to the accused. Plain reading of FIR, mushirnama of recovery and evidence of three witnesses who are employees of ANF does not inspire any confidence in the prosecution case. No one will believe that a person was packing charas in a hotel room, which is a public place by keeping the door open. For the sake of arguments even if it is believed then who is going to believe that raiding party can directly go to the room without being intercepted by the reception staff of a hotel. All these things are missing in the prosecution case. Even in the case of Narcotics the initial burden to prove the guilt of accused is always on the prosecution. The defense witnesses examined by the accused appeared to be respectable persons. The learned Prosecutor in the trial Court has cross-examined the defense witness but their testimony could not be shattered.

19. Keeping in view the evidence of prosecution as well as evidence produced by defense and by putting them in jexta position, the weight of defense evidence appears to be more as compared to that of prosecution evidence. The Appellant is in custody since 21-11-2002. He is remained in Jail for about six years in this case. The case of prosecution is on very week footings. The prosecution story appears to be unbelievable at the face of it. It is against the normal course of human conduct to expose ones self to danger of arrest/apprehension and any person particularly a criminal would take all precaution to see that crime committed by him is not deleted. The instinct of self preservation is always predominant in every human being and more particularly so in a criminals. It is not believable that the Appellant would be packing charas in a carton for smuggling it, while keeping the door of room of hotel opened. It is equally unbelievable that he would keep charas openly on a table of the said room. No doubt official witnesses are admissible, but it does not mean that they are reliable also. Every case is to be seen in the light of facts of its own case. One single circumstance throwing doubt is sufficient to discard prosecution case. Not as a matter of grace or concession but as a matter of right. Non-examination of A.D. Mehmood Baig has adversely affected the case of prosecution. Not a single witness has been examined from the hotel to prove that Mir Muhammed, present Appellant was staying in the hotel in Room No.11. Even the register of the Hotel has not been produced in Court. No question regarding ownership of Saifullah Bangash Hotel was put to the Appellant when he was examined under Section 342 Cr.P.C. In the circumstances that piece of evidence cannot be used against Appellant. Similarly he was not asked any question regarding his partnership in drug business with absconding accused Kazim and Haji Yousuf. This piece of evidence again cannot be used against the Appellant for his conviction.

20. In view of the aforementioned discussion, we set aside the conviction and sentence of the Appellant Mir Muhammed and allow this appeal. He shall be released forthwith if not required any other case.

Criminal Appeal No.526 of 2005 is allowed as prayed.

Judge

Karachi,

March ,2008 Chief Justice