KHALIL AHMED vs THE STATE

' MUHAMMAD MOOSA K. LEGHARI-J:---These appeals are directed against the judgment dated 6-4- 2006 passed by Special Judge Control of Narcotic Substance Sanghar in S.C. No,09 of 2005.

2. Vide impugned judgment, appellant Khalil Ahmed was convicted under section 9(c) of C.N.S Act 1997 and sentenced to suffer imprisonment for life, besides the fine of Rs,1,00,000. In case of default in payment of fine he was ordered to suffer R.I for one year more. The appellant was however extended the benefit admissible under section 382-B, Cr.P.C.

3. By the same judgment the trial Court confiscated the vehicle Toyota Corolla Model 2000 treating its as a case property.

4. Facts of the case as disclosed in the F.I.R. Crime No,03/2005 registered at Excise Police Station Sanghar are that on 25-5-2005 while complainant along with his subordinate staff was checking the vehicles at Nawabshah-Sanghar road near Jamali Patrol Pump, one Toyota Corolla Car without number plate emerged from Nawabshah side, was stopped, as the said Car was being driven by a suspicious person. The driver of the car, on inquiry disclosed his name as Khalil Ahmed, resident of Housing Society, Sanghar. According to the complainant, from the body search of accused, a currency note of Rs,500 was secured from the front pocket of his shirt. It is alleged that subsequently the accused produced one plastic bag, hidden behind the rear seat of the Car, which on checking was found to be containing rods of charas. Accused was also unable to produce the documents of the car. The recovered charas was weighed in presence of mashirs, which came to be 20 1/2 kilograms, out of which 500 grams were separated for Chemical Examination and then entire recovered charas was sealed. The complainant after preparation of mashirnama of arrest and recovery in presence of mashirs, brought the accused and recovered Charas at Crime Circle, Sanghar where he registered the F.I.R. And the samples of case property were dispatched to the Chemical Examiner.

5. In order to prove the case, prosecution examined P.Ws Dr.Jaleel Qadir Memon, Assistant Chemical Examiner, Chemico Bacteriological Laboratory, Karachi at Exh.4, who produced Chemical report at Exh.4/A, complainant Excise Inspector Rustam Ali Awan at Exh.5, who produced mashirnama of arrest and recovery as Exh.5-A, mashirnama of recovery of vehicle-documents and number plate at Exh.5-B, F.I.R. As Exh.5-C and Roznamcha entry as Exh.5-D, mashir Muhammad Uris at Exh.

6. Thereafter the prosecution closed its side.

6. The appellant in his statement recorded under section 342, Cr.P.C. Pleaded his innocence claiming to be the owner of kiryana shop having been arrested two days prior to incident, and falsely implicated in the case.

7. On the basis of the evidence adduced, the trial Court convicted the appellant in the terms stated above. The trial Court also confiscated the vehicle. Hence these two appeals, separately filed by the convict/appellant and the owner of the confiscated vehicle.

8. It is contended on behalf of the convict/appellant that the appellant was a shopkeeper and was falsely implicated by the complainant Excise Inspector Rustam Ali Awan on account of personal vendetta; that there are discrepancies and inconsistencies in the evidence of the prosecution; that the case of the prosecution is silent about number of rods allegedly recovered from the possession of the appellant; the record is further silent as to whether the samples were taken from each rod; that according to opinion of the Chemical Examiner, the substance recovered from the possession of the convict/appellant was not charas. In support of above contentions learned Counsel relied upon certain authorities.

9. Learned Counsel appearing for the appellant, owner of the vehicle simply contended that no reasons of whatsoever nature were assigned in the impugned judgment for confiscating the Car, thus the judgment was liable to be set aside.

10. On being confronted with the above arguments, learned Counsel appearing for the State was at pains to support the impugned judgment, As such, he was left with no option but to concede that the conviction handed down to the convict/appellant was illegal, and the confiscation of the vehicle was unlawful.

11. We have considered the submissions and have also examined the record. We find that the arguments addressed before us are forceful and thus quite unexceptionable.

12. In this particular case the Assistant Chemical Examiner appeared in the witness box and was examined. In his examination-in-chief, he deposed that the parcel, which he examined, had faint smell like that of charas. He stated that he conducted four tests. According to him, the result of Resin test was "faintly positive", (ii) Fast blue Sault test "faintly positive" (iii) on microscopic examination "horn type spines not visible", and (iv) T.L.0 (thinlayer chromotophy test "not identical with charas".

' In the cross-examination, he stated that the charas was passed through four tests. He, however, added that it is not necessary that if the result of four tests comes in positive then it would be declared as "charas".

According to Chemical Examiner's report, it was not perceivable that the material recovered from the possession of the appellant was charas. Even the Chemical Examiner has to say that after the four chemical tests, which were conducted by him, if found positive, the material could not be declared to be charas. After such categorical negative report from the Chemical Examiner, there remains no doubt to take a view that the material sent to the Chemical Examiner was charas. The case of the prosecution thus suffered an irredeemable damage on this score alone.

13. It has been noted that in the mashirnama of recovery and in the evidence recorded by the complainant or his witness it has been brought on record that the charas was in the shape of rods.

However, nowhere in the entire evidence the number of rods has been mentioned. The report of the Chemical Examiner reveals that he received certain pieces (rods) for Chemical Examination.

Nothing has been brought on record to ascertain as to whether samples were drawn from all the material allegedly secured from the possession of the appellant.

14. It is strangely notable, and quite unusual that the F.I.R. Does not disclose the names of the subordinate staff, who accompanied the complainant for the purpose of checking. Even the names of Mushirs are not mentioned in the body of the Memo of arrest, recovery and seizure of charas.

Though the car was also taken in custody by the Excise Inspector, but neither such memo was prepared nor produced in evidence. The above noted circumstances have rendered the prosecution story dubious.

15. Indeed, a huge quantity of charas weighing 20-1/2 kilograms was secured, which might have taken enough time in weighing and sealing of the narcotic substance. In the circumstances, as a natural phenomena, a good number of vehicles might have passed, and the proceedings would have been noticed and witnessed by numerous people comprising various segments.

16. Besides, it is also an admitted position that the recovery was effected on a highway in front of Patrol Pump in the close proximity of town, which presumably is busiest place. However neither any person from public was made witness of recovery nor anyone was persuaded to attest the recovery proceedings.

' 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 prohibit 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 so 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 Muhammad Hashim v. The State (PLD 2004 SC 856) that under the Control of Narcotic 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 tribulations.

' Off late it has been observed with great concern and dismay that the officials of Excise Department are constantly abusing the provisions of Control of Narcotics Substance Act to inflict undue agony upon the innocent citizens. In the circumstances, the recoveries made by Excise officials in the dubious manner and mysteriously implausible circumstances have to be looked by the Courts with a critical eye and are to scrutinized with due care and caution.

17. It will be seen that, in the present case the purpose for which the Excise Officials were on the highway was to check the documents of the vehicles and not to check the transportation of narcotic substance. Besides they had no prior information yet they stopped the vehicle and orchestrated a drama that the vehicle was without number plate and then on the next day secured the number plate from house of the convict/appellant. Noticeably the house of the appellant was searched without warrant and admittedly without associating any respectable person of the locality. The story, as cocked up by the prosecution, being highly improbable and implausible has created number of doubts. The Roznamcha entry, which has been brought in evidence, was admittedly not made before leaving the so called Excise Police Station, but after completing the seizure and recovery proceedings, which does not lend any credibility to the case of the prosecution.

18. In the circumstances, the case of the prosecution is highly doubtful. The conviction can not be based on such type of trials which are marred 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.

19. So far as the order of confiscation of the vehicle is concerned, it was made without availability of any material on the record. It was mechanically passed in flagrant violation of the provisions of section 33 of the Control of Narcotic Substance Act, as such the mandate of law was flouted by the trial Court. Thus the order of confiscation is nullity, the same deserves to be struck down.

20. The learned State Counsel has, therefore, rightly not supported the impugned judgment, which is otherwise not sustainable.

21. The upshot of the above discussion is that both the appeals are accepted. Resultantly, the conviction recorded against the convict/appellant is set aside. He shall be released forthwith if not required in any other case.

22. The order of confiscation of the vehicle viz. Car bearing Engine No,3842089, Chassis No,CE-100- 912269 Model 2000 Toyota Corolla Car (Salon) also stands set aside. It is accordingly directed that the car , which was seized by the Excise officials and confiscated by the trial Court shall be released to the owner after due and proper verification.

' These are the reasons for the short order passed on 5-9-2007.