IN THE HIGH COURT OF SINDH AT KARACHI

IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.57 of 2009

Criminal Jail Appeal No.279 of 2009.

Present:

Mr. Justice Bhajandas Tejwani, and

Mr. Justice Irfan Saadat Khan.

Appellants through Mr. Ilamdin Khattak, advocate.

Respondent through Mr. Ahmed Ali Shah, DPG, for the State.

Date of hearing: 4.8.2010.

J U D G M E N T

IRFAN SAADAT KHAN, J: The appellants have approached this Court against the Judgment dated 30.3.2009 passed by the learned Special Judge, CNS-II Court, Karachi whereby the appellants have been convicted under sections 6, 9-C, 14 and 15 of the Control of Narcotic Substances Act, 1997 and sentenced them to suffer life imprisonment and to pay fine of Rs.100,000 each and in default of payment of fine to suffer further S.I. for one year. Benefit of section 382-B, Cr.P.C. was extended to them.

2. Brief facts of the case are that on 21.2.2008 Pakistan Marine Security Agency (MSA) approached the Model Customs Collectorate (Preventive), Customs House, Karachi, and informed them that their ship “MSS BARKAT” has impounded a fishing launch “Al-Moula Madad” in the high seas near Charna Island with contraband Hashish (Charas) and detained the ten crew members of the said fishing launch and wanted to handover the detained launch as well as the crew members to the Collectorate. Accordingly, after obtaining permission from their high-ups, Custom officials went to the said ship where Mr. Qaiser Mahmood Shah, Lt. Commander, Pakistan Navy, handed over custody of ten crew members of the said fishing launch alongwith 15 bags of contraband charas weighing 250 Kgs. as well as fishing launch bearing registration No.BFD-20544 and 13581-B to them. Mashirnama thereafter was prepared, sample from the seized charas was drawn and sealed and accused persons were served with notice of arrest and FIR was registered. After usual investigation, the appellants were sent up for trail before the Special Judge, CNS-II Court, Karachi, who convicted and sentenced them as stated above, hence this appeal.

3. Mr. Ilamdin Khattak, learned counsel for the appellants submitted that the prosecution has violated provisions of section 173, Cr.P.C. He further submitted that the appellants were arrested on 21.2.2008 whereas the interim challan was prepared as late as on 18.3.2008. The samples drawn from the alleged seized charas were neither sealed nor any date was mentioned thereon and it also does not carry name of any mashir in whose presence the same were allegedly sealed and dated. It is further alleged that the entire case property was also neither sealed and dated nor carries the name of the any mashir and bears his signatures. Moreover the shape of the charas was neither mentioned nor it was stated as to from where it was recovered i.e whether it was lying in open or was recovered from some secret place in the said alleged fishing launch. It is further submitted that nothing has been mentioned about the “Nakhuda” of the launch, provisions of section 188 of the Cr.P.C. have been violated and no mashir has been taken from MSA. The seizure report was signed by one Commander Nasir Feroz Bhatti but he was not examined as a witness; and that Rules 4 and 5 of the CNS Act have been violated. In the end the learned counsel submitted that the appeal may be allowed and as the appellants have been falsely implicated in the case. In support of his submissions the learned counsel for the appellants relied on the following cases:

1. 1980 P.Cr.LJ 369,

2. PLD 1956 SC (India) 81,

3. 2010 P.Cr.LJ 360,

4. PLD 2004 Kar. 856,

5. PLD 2009 Kar. 284,

6. 2009 P.Cr.L.J 480,

7. 2010 SCMR 841 and

8. 2008 SCMR 991.

4. On the other hand, Mr. Ahmed Ali Shah, DAG, appearing for the State, submitted that the question of jurisdiction is covered by section 4, PPC. He also submitted that complete procedure was adopted with regard to recording of the evidence by the mashirs and that there is no violation of section 173, Cr.P.C. He also submitted that as the occurrence took place in deep sea, therefore, there was no question of any independent witness and further submitted that 15 bags were recovered from the launch, which are available with the prosecution. In the end he submitted that the appeal may be dismissed.

5. We have heard both the learned counsel and have also perused the case law and the record.

6. The deposition of the PW-1 reveals that the case property was not sealed which has been affirmed by the witnesses. Mashirnama bears no signature of any personnel of MSA. Mashirnama does not show that after drawing the samples signatures of the witnesses have been obtained. It has also been admitted that neither the sample was dated nor it was sealed. It is also strange to observe that no shape or the description of the charas has been mentioned in the Mashirnama. The PW-1 has candidly accepted that the FIR also is totally silent as regard to the drawing of the sample or sending the same for the chemical examination. It has also been admitted that all the mashirs in the present case are that of custom department and he also does not have any idea with regard to the weight of the bags which were alleged to have been recovered from the possession of the present appellants. The PW-2, who is also from the custom department, in his deposition has repeated the shortcomings and non following of the proper procedure as admitted by the PW-1. It has further been admitted that the Mashirnama does not contain the handing over and taking over of the contraband items from the MSA by customs authorities. He also admitted that he is unable to say anything about the weight of the contraband items recovered from the appellants and he also admitted that no samples were drawn from each bag for the purposes of examination of the said contraband items. The deposition of PW-3, who is a Lieutenant Commander in Pakistan Navy, also reveals that the case property which was allegedly recovered by him from the appellants was neither signed by him nor by any other naval officer. He further admitted that nothing has been said by him in his statement recorded under Section 161 Cr.P.C. with regard to the handing over of the case property to the custom authorities. He further admitted that the alleged bags from where the contraband items were recovered and on the basis of which the appellants were apprehended, were never produced in the Court. He has further admitted that no names of the custom's officials have been given in his 161 Cr.P.C. statement. Moreover no time has been mentioned on the report showing recovery of the contraband items. He has also not satisfactorily explained that how he has measured the weight of the charas alleging to be 250.150 kg in the open sea. The PW-4, who is from custom department, has also stated in his deposition that no investigation whatsoever has been carried out that whether launch which sailed for fishing purposes has obtained the proper Port Clearance Certificate in this regard. He has further admitted that no date has been mentioned in the challan in respect of sending samples by the complainant. He has further admitted that while examining the case no private or independent witness has ever been examined.

7. It is a trite law that whenever a doubt is created the advantage of which has to be given to the accused not as a matter of grace but as a matter of right. If the statements given by the PWs are examined so also the case law referred by the learned counsel for the appellants it would become crystal clear that the present case is full of contradictions, question marks and anomalies.

8. Careful examination of evidences suggested that in the light of the circumstances leading to the occurrence, the prosecution has not been able to prove the charges against the appellants beyond reasonable doubt. A number of shortcomings and lapses in making out a case by the prosecution have duly been admitted by the prosecution witnesses. It is a trite law that in case of doubt arising in the prosecution case, benefit should always be given to the said accused. The learned trial Court in our opinion was obliged to take into consideration the entire material placed before it in order to arrive on proper conclusion especially where a fact has not been proved or where the proof so produced is full of doubts. Needless to state that it is the duty of the prosecution to prove its case beyond any reasonable doubt and if any doubt would arise the benefit of that has to be given to the accused not as a matter of grace but as a matter of right. Reference in this regard may be made to the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case of Tariq Pervaiz Vs. State (1995 SCMR 1345).

9. In the present case, in our opinion, the prosecution has miserably failed to prove its case against the appellants beyond any reasonable doubt, therefore they were entitled to be acquitted from the charges leveled against them, by allowing the appeal.

10. The above are the reasons for our following short order dated 04.08.2010:

"Heard Mr. Ilamdin Khattak, learned counsel for the appellants and Mr. Ahmed Ali Shah, learned Standing Counsel for the respondent.

For the reasons to be recorded later on this appeal is allowed and the impugned judgment dated 30.03.2009, passed by the Special Court-II (C.N.S.) Karachi is set aside. The appellants shall be released forthwith if they are not required in any other case."

J U D G E

Karachi.

Dated:- .2010.