IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.69 of 2010
Present:
Mr. Justice Shahid Anwar Bajwa, and
Mr. Justice Irfan Saadat Khan.
Appellants through Mr. Ialamdin Khattak, advocate.
Respondent through Mr. Ashfaq Hussain Rizvi, Special Prosecutor, ANF.
Dates of hearing: 16.7.2010.
J U D G M E N T
IRFAN SAADAT KHAN, J: This appeal is directed against the judgment dated 26.1.2010 passed by the Special Judge-I, CNS, Karachi in Special Case No.24/2008 whereby the appellants were found guilty of the offence punishable under section 9-C, Control of Narcotic Substances Act, 1997 and were, therefore, convicted and sentenced to suffer life imprisonment and to pay fine of Rs.100,000 each and in default of payment of fine to suffer further simple imprisonment for three months.
2. Briefly stated the facts of the case are that on 9.2.2007 DSR Willayat Khan of Sachal Rangers, Karachi received spy information that narcotics smuggler Dil Jan alongwith his workers namely, Muhammad Safdar, his wife Samina, Mudasar Khan and Muhammad Izhar are coming from Hyderabad in Coach No.JB-0395 with huge quantity of narcotics. At 1600 hours they saw the said bus and it was stopped accordingly. On the pointation of the spy four passengers, one female and three males, were questioned and they disclosed their names as Mst. Samina wife of Safdar, Safdar, Mudasar and Izhar. The conductor of the bus was directed to take out the baggage of the said passengers and on pointation of the said passengers one black bag belonging to Mst. Samina, two bags belonging to Safdar and one bag belonging to Mudasar were taken out while the fourth person Izhar stated that he had no luggage/bag. Nothing objectionable was recovered from the handbag of Mst. Samina except her cloths and one mobile phone, however, from one bag of Safdar 13 packets of charas and from the other 11 packets of charas were recovered while from the bag of Mudasar 21 packets of charas were recovered. The total weight of charas recovered from the bag of Safdar was 28.760 Kgs while the total weight of charas recovered from the bag of Mudasar was 24.240 Kgs. Thereafter mashirnamas were prepared on the spot and the accused alongwith the recovered narcotics were taken to Police Station ANF, Clifton, Karachi. On completion of formal investigation the I.O. submitted Challan before the Court and the learned trial Court, after recording the evidence and hearing the parties, convicted and sentenced the appellants as above. Hence this appeal.
3. Mr. Iladdin Khattak, learned counsel appearing for the appellants submitted that the driver and conductor of the bus, ,who were made mashirs, were not produced as PWs by the Prosecution and that there are material contradictions in the depositions of the prosecution witnesses. He further submitted that the bags allegedly stated to belong to the appellants did not carry names of the appellants and that the time shown on the mashirnamas is 1600 hours whereas after completion of the search, the time should have been shown as 1700 hours. Moreover the appellant Mudasar was not identified by PW Willayat Khan and no efforts were made to arrest the owner of the bus and the alleged main narcotics smuggler Dil Jan son of Pivo Jan. He, therefore, submitted that the conviction and the sentences may be set aside and the appellants may be acquitted. In support of his case the learned counsel relied on the following cases:
1. 2010 SCMR 927,
2. 2010 SCMR 846,
3. 2009 P.Cr.LJ 523,
4. 2009 SCMR 333,
5. 2006 P.Cr.LJ 58, and
6. 2009 SCMR 536
4. On the other hand, Mr. Ashfaq Hussain Rizvi, Special Prosecutor, ANF, vehemently opposed the instant appeal and submitted that only those witnesses were examined who were required to prove the guilt of the accused and therefore non-recording of evidence of the driver and conductor of the bus is immaterial and would not weak the case of the prosecution. He submitted that if after recording evidence of only one witness the guilt of an accused is proved beyond any shadow of doubt there is no need to produce further evidences. The learned counsel further submitted that there is no delay in lodging of the FIR nor there is any delay in initiating the proceedings against the appellants. He also submitted that there is no material contradiction in the depositions made by the PWs. In support of his submission he relied on the case PLD 1993 FSC 20. He also submitted that since the appellants themselves had identified their bags hence it is not material whether the same contained the names of the appellants or not. The learned counsel finally submitted that even if after recording deposition of one PW the guilt of the accused is proved no further witnesses are required to be produced. He submitted that in the present case the prosecution has proved its case to the hilt and, therefore, the conviction and sentences passed by the learned trial Court may be affirmed.
5. We have heard the learned counsel for the parties and have perused the record/paper book and the case laws cited before us.
6. PW-1, SIP Muhammad Hanif in his deposition (Exhibit 6 at page 43 of the paper book) states that “… at about 1600 hours we saw vehicle while coming from Hyderabad. I got stopped the vehicle”. However, from perusal of page 49 of the paper book it transpires that the seizure memo (Exhibit 6/A), page 50-A of the paper book, was also prepared at the same time i.e. 1600 hours which is signed by PW-1 as well as by the driver and conductor of the said bus, namely, Allah Bux and Mushtaq, as mashirs. This creates a doubt as to how the seizure memo can be prepared at 1600 hours when the bus itself was stopped at 1600 hours and was searched and after questioning the appellants and recovering the alleged contrabands the seizure memo (Exh. 6/A) must have been prepared after a lapse of some time. However, surprisingly, the time of stopping of the bus and the seizure memo both show the time as 1600 hours. Secondly, the seizure memo shows that driver and conductor of the bus namely Allah Bux and Mushtaq Ahmed were also made mashirs, as is apparent from the said Exhibit, but none of these private witnesses were produced in Court as prosecution witness. We find ourselves in agreement with the submissions made by learned counsel for ANF that if evidence of only one witness is enough to prove the guilt of an accused person beyond any shadow of doubt there is no need to produce any further witnesses but such evidence is to be a confidence inspiring and independent. In case any had one of the two private witnesses i.e. either the driver or the conductor of the bus, was examined and had supported the version put forward by the Prosecution, it would have been possible to make the same the basis of conviction. However, in absence of such independent witnesses and in view of the contradictions in the evidence of the prosecution witnesses, the Courts are always reluctant to convict an accused. When the driver and conductor of the bus were made mashirs in the case, in our opinion, they should have been produced before the trial Court as Prosecution witnesses. In the case reported as Riaz Ahmed v. The State (2010 SCMR 846), it was observed as under:
“Furthermore, the statement of the complainant is neither supported nor corroborated by any piece of evidence. One of the eye-witnesses Manzoor Hussain was available in the Court on 29.7.2002 but the prosecution did not examine him, declaring him as unnecessary witness without realizing the fact he was the most important, only serving [surviving] witness, being an eye-witness of the occurrence. Therefore, this evidence was the best piece of evidence, which the prosecution could have relied upon for proving the case but for reasons best known, his evidence was withheld and he was not examined. So a presumption under Illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 can fairly be drawn that had the eye-witness Manzoor Hussain been examined in the Court his evidence would have been unfavourable to the prosecution.”
7. In the present case also a presumption can fairly be drawn that if the prosecution had examined any one of the two independent witnesses his evidence would have been unfavourable to it.
8. The other glaring aspect of the case is that PW-1, Willayat, had failed to identify the appellant Mudasar during the identification test. While PW-1, Muhammad Hanif, in his deposition states that “All the accused Mudasir, Safdar and Izhar, except accused Samina (as she absconded) and Case property present in the Court are same” but PW-2 , Willayat Khan, in his deposition only identifies the appellant Safdar but do not identify the appellant Mudasir in Court. Thus, it becomes doubtful whether anything was recovered from the appellant Mudasar as he was not identified by PW-1 Willayat. This creates serious doubt in the case of the prosecution and the entire benefit whereof in our opinion should go to the appellant.
9. We have further noted that the samples of the contraband items allegedly recovered from the appellants were sent to the chemical examiner through PC Mukhtiar who, surprisingly, was not made a witness in this case.
10. A perusal of Exhibit 7/C (Page 64-B) reveals that Mst. Samina took a black hand bag and stated that this is her bag while her husband appellant Safdar took out two bags while appellant Mudasar took out one bag. It is alleged that during the search of the bags of appellants Safdar and Mudasar revealed that their bags contained contraband articles while nothing objectionable was recovered from the bag of Mst. Samina. However, PW-2, Willayat Khan in his deposition (Exh. 07) has stated that “Safdar had taken out two bags and disclosed one is belonging to him and other is belonging to Samina.” This also is a material contradiction as in the FIR lodged at Police Station ANF, Clifton by Willayat Khan (PW-2), available at Page 64-A, it is stated that only one black bag belongs to Mst. Samina and the two bags in the hands of her husband Safdar belonged to him (Safdar) while at another place it is stated that, apart from the black bag which belonged to Mst. Samina, one of the two bags in the hands of Safdar also belonged to her. PW-1 Muhammad Hanif in his deposition has further stated that “Lady passenger Samina herself had taken bag from the luggage box of the bus. The bag was searched, ladies cloths, one mobile phone were secured from the said bag. … Muhammad Safdar had taken his two bags from the box of the bus one was grey colour and other was black colour.” Here also it is clearly stated that only one bag belonged to the lady passenger i.e. Mst. Samina while the other two bags belonged to Muhammad Safdar.
11. PW-2, Willayat Khan has further admitted during his deposition that neither any intimation, regarding the spy information received by him, was communicated by him to his superior authorities nor any such information was given by him, prior to making the alleged search, was given to the nearest police station. We have further noted that the deposition of PW-2 is totally silent with regard to as to which type of scale was used in weighing the contraband items whereas in the deposition of PW-1 he has categorically stated that the alleged contraband items were weighed on an electronic scale.
12. It is also noted that PW-1, Muhammad Hanif, in his cross examination stated that “It is correct to suggest that the recovered bag[s] were lying in the luggage box, where other luggage of the passengers was also lying.” But, PW-2 in his cross examination had stated that “There was no other baggage of the passenger in the luggage box of the bus, wherefrom the bags of the accused persons were recovered.” Thus, there is a clear contradiction in the deposition of the said two prosecution witnesses as one states that in the luggage box, where the bags of the appellants were lying, there were no other luggage while the other witness stated that there was other luggage also in the luggage box, where the bags of the appellants were lying.
13. In the FIR as well as in the depositions of PW-1 and PW-2 it is clearly mentioned that the spy informed the said PWs that “Smuggler of Narcotic namely Dil Jan son of Piyo Jan” was transporting Narcotics in bus No.JB-0395 through his workers. However, no efforts were made by the prosecution to arrest the said smuggler.
14. In view of the above discussion, we are of the view that the prosecution has not been able to prove the case against the appellants beyond any shadow of doubt. It is trite law that an accused is the favourite child of the law and in case of slightest of doubt in the prosecution case the benefit has to be given to the accused not as a matter of grace but as a matter of right. The contradictions in the prosecution case so as other questionable statements show that the prosecution has not been able to prove the case against the appellants beyond any shadow of doubt and, therefore, the benefit of doubt in this regard has to be given to the appellants.
15. Consequently, we set aside the impugned judgment dated 26.1.2010 passed by the learned trial Court, convicting and sentencing the appellants as above, and acquit them accordingly. They shall be set at liberty forthwith if not required in any other case.
Judge
Karachi, the ___ July, 2010. Judge