MAQBOOL vs THE STATE

' IJAZ-UL-HASSAN KHAN, J.--- Appellants Maqbool son of Shamroz Khan, resident of Nauthia Payan, through Appeal No, 865 of 2004, Nawabzada son of Shahzada, resident of Shaheen Colony, Bara Gate and Nisar Ahmad son of Nazar Gul, resident of Masha Khel, Peshawar, through Criminal Jail Appeal No, 907 of 2004, have called in question their conviction and sentences recorded under section 9(c) of the Control of Narcotic Substances Act, 1997, recorded by learned Sessions Judge/Judge Special Court, Anti-Narcotics, Nowshera, vide his judgment, dated 18-10-2004, in Hadd Case No, 89 of 2003 and each of them was convicted and sentenced to suffer life imprisonment and to pay a fine of Rs,10,00,000 each or in default whereof to undergo additional S.I.

For five years. Benefit of section 382-B, Cr.P.C. Was accorded to them. However, the appellants were extended benefit of doubt and acquitted under the penal sections of the Customs Act.

2. The prosecution story in brief is, that pursuant to spy information, stated to have been received on 21-10-2002 by Ikramullah Ghauri, Collector Customs, Peshawar that on the said day huge quantity of foreign Charas would be smuggled from 'Illaqa Ghair' to Punjab through Truck No, AD- 1866 Karachi, a customs party headed by Sardar Ali, Superintendent Customs conducted Naka Bandi at Khair Abad Kund near Attock bridge. At about 2-00 a.m. The truck in question, reached the place of Naka Bandi. The truck was stopped. Nawabzada was driving the truck and Maqbool and Nisar Ahmad, conductors were sitting with him on front seat- of the truck. Apparently the truck was loaded with plastic utensils. The driver, conductors and the truck were taken to Customs House, Peshawar. A thorough search of the truck led to recovery of Charas concealed in secret cavities of the truck. The Charas was weighed and found 282 Kgs. A meagre quantity i,e, 5 grams each was separated out of the seized property for analysis.. Specimens of sealed parcels were sent to the office of Chemical Examiner, Peshawar, whose report confirmed the contents to be that of narcotics. The remaining Charas was sealed in a separate parcel. The accused were formally arrested and a case was registered against them.

3. During the trial, prosecution, in order to prove its case, produced five witnesses namely, Sanaullah, Liaqat Ali, Syed Fazal Badshah, Nazar Bukhari, and Zahid Mehmood.

4. After the close of the prosecution case, the appellants were examined under section 342, Cr.P.C.

They pleaded not guilty, and professed innocence maintaining that the real culprits were let off and they were implicated. The appellants however, did not opt to produce evidence in their defence or to depose on oath in disproof of the allegations appearing against them in the prosecution evidence.

5. At the conclusion of the trial, the learned trial Court found the prosecution case against the appellants to have been proved beyond reasonable doubt, and thus, they were convicted and sentenced by him as mentioned and detailed above.

6. Appearing on behalf of Maqbool appellant, Mr. Mehmood Shah, Advocate contended with force that prosecution has miserably failed to substantiate the charge against the appellant, by independent, ocular or circumstantial evidence; that there are glaring and unbreachable contradictions in the statements of prosecution witnesses, besides the inherent defect which can in no way be reconciled; that prosecution has failed to establish conscious possession of the appellant over the contraband narcotic allegedly recovered from the secret cavity of truck and that the appellant had no nexus with the crime in question.

7. Mr. Astaghfirullah, Advocate for Nawabzada and Nisar Ahmad appellants also bitterly criticized the impugned judgment of conviction maintaining that the same has been recorded in a mechanical manner without application of judicial mind and as such is not sustainable in law.

8. Mr. Hamid Farooq Durrani, learned Deputy Attorney-General for the State, on the other hand, submitted that sufficient material was available on the record, connecting the appellants with the commission of the crime and their conviction and sentence was perfect and legal not warranting interference by this Court. He reiterated that the findings of the trial Court could not be shown to have been passed on misreading or non-reading of evidence. The trial Court appraised the evidence existing on the record thoroughly on the principles for reappraisal of evidence in criminal cases for safe administration of justice. The judgment is based on correct application of law and proper evaluation of evidence.

9. We have heard in detail, the arguments and submissions of learned counsel for the parties and have also perused the record of the case with their assistance.

10. The prosecution in order to prove the factum of apprehension of the appellants and recovery of the contraband Charas from the secret cavities of the truck in question, has produced five witnesses. However, the marginal witnesses to the recovery memo. Exh.P.C. Namely, Shaukat Ali and Fahim Khan constables have not been produced at the trial. It is not discernible from the record as to whether they had been abandoned as unnecessary or not. These witnesses, to our mind, were material witnesses and could have been summoned by the Court under section 540, Cr.P.C. As Court-witnesses. Primary function of the Court is to arrive at the truth in accordance with law, and technicalities should ordinarily not be allowed to interfere with that function. Provisions contained in section 540, Cr.P.C. In examining, recalling or summoning any witness are wide enough to give free hand to a Court of law to see that the justice does not slip out of hand or is defeated only on the technicalities of law. The Courts ought to make maximum endeavour for discovering the truth for arriving at a just decision. In this case we find that constables Shaukat Ali and Fahim Khan should have been summoned and examined as Court-witnesses, in order for discovering the truth for arriving at a just decision.

11. In the result and for the foregoing reasons, we are constrained to accept the appeal, set aside the impugned judgment of conviction and remand the case back to the trial Court for fresh decision.

'Before parting with this judgment we must observe that the conduct of the officials of the Customs Department is reflective of ulterior motives and extraneous considerations on their part.

Unfortunately, they have not done the job as required by the mandate of their office. The investigation carried out in this case is not above board and seems to have been conducted dishonestly. A copy of the judgment shall be sent to the Chairman C.B.R. To fix the responsibility on the official concerned.