MUHAMMAD ASIF Versus State

SAGHEER AHMAD QADRI, J.--- Muhammad Asif, convict-appellant was tried by learned Judge, Special Court (CNS), Rawlapindi in case F.I.R. No.20 registered at Police Station Anti-Narcotic Force, Rawlapindi on 19-3-2008 under section 9(c) of the Control of Narcotic Substances Act, 1997 on the report of Tanvir-ul-Hanif, Inspector, Police Station ANF, Rawalpindi complainant (P.W.5).

2. Out of five accused except the present convict-appellant Muhammad Asif all other four confessed their guilt and they were accordingly convicted/sentenced by the trial Court vide separate judgments dated 4-4-2009 and 11-8-2009.

3. The F.I.R. (Exh.PC/1) was recorded on the basis of complaint (Exh.PC) lodged by P.W.5 Tanvir-ul-Hanif Inspector/complainant whereby it was mentioned that on 19-3-2008 Major Fayyaz Deputy Director/Incharge, Police Station ANF, Rawalpindi received spy information that the appellant Muhammad Asif along with his brother-in-law Amir was involved in smuggling of Heroin abroad through carriers and for that purpose he was present on the said date at Islamabad Airport and if raid is conducted he along with his companions can be apprehended. On this information a raiding party headed by Major Fayyaz, Incharge, Tanvir-ul-Hanif, Inspector/complainant, Waqar Ahmed S.I., Subaidar Muhammad Zameer, Manzoor Hussain, Azhar Iqbal, Muhammad Asghar, Sagheer Ahmad and Shaukat Hayat all Constables was constituted; that at about 12-30 they reached at Islamabad Airport where three persons were found present in the parking area of the Airport having travel bags on their respective shoulders; that on the pointation of the informer they were apprehended; that during interrogation one of them disclosed his name Muhammad Asif (present appellant) while the other were Kamran Ahmed and Amir Shahzad the travel bag carrying by the appellant when checked found Heroin contained in a black colour polythene bag which weighing comes to 4 Kgs. out of which one gram heroin was separated for chemical analysis which was subsequently sent to the office of Chemical Examiner for report. Beside this the raiding party also got recovered Rs.5,00,000 in the shape of 100 currency notes of the denomination of Rs.5000 each from the said bag. On this report the instant case was registered.

4. The appellant along with his co-accused was produced before learned Judge, Special Court (CNS), Rawalpindi who charge-sheeted them on 13-9-2008 under section 9(c) read with sections 14/15 of the Control of Narcotic Substances Act, 1997 to which he pleaded not guilty and claimed trial.

5. From prosecution side Muhammad Zubair, S.-I./Moharrir appeared as P.W.1. who stated that on 19-3-2008 complainant/ P.W.5 Tanvir-ul-Hanif, Inspector handed over him five sample parcels weighing one gram each parcel and five parcels of remaining bulk of heroin vide sealed stamp TH. He entered all these things in Register Malkhana and kept them in safe custody. He further stated that on 22-3-2008 he handed over sample parcels to Niaz Ahmed, Constable for its onward transmission to the office of Chemical Examiner. P.W.2 Waqar Ahmed, S.I. is the recovery witness who fully supported the contents of the F.I.R., P.W.3 Fajar Khan, A.S.-I. stated that on 19-3-2008 he received complaint Exh.PC sent by P.W.5 Tanvir-ul-Hanif, Inspector on the basis of which formal F.I.R. (Exh.PC/1) was registered. P.W.4 Niaz Ahmed, Constable stated that on 22-3-2008 Muhammad Zubair, S.I./ Moharrir Malkhana handed over him five sealed parcels containing heroin each weighing one gram for onward transmission to the office of Chemical Examiner, Rawalpindi which he deposited on the same day. P.W.5 Tanvir-ul-Hanif, Inspector is the complainant who fully supported the contents of the F.I.R., Iftikhar-ul-Hassan Naqvi, Deputy Assistant Director, ASF, Islamabad Airport appeared as CW-1 who stated that Airport Security Force (ASF) had been established under Airport Security Force Act, 1975 to ensure security of airports premises as well as the air crafts. It has no concern with other Agencies likes Customs, Immigration, ANF, etc. as the said Agencies conduct their business in accordance with their respective laws and the ASF does not interfere into their matter nor maintains the record of their day to day activities. For this reason no log book is maintained with respect to the activities of such other agencies.

6. The learned Special Public Prosecutor for the State gave up P.W. Manzoor Hussain, Constable being unnecessary and after tendering in evidence the report of Chemical Examiner (Exh.PE) closed the prosecution evidence.

7. After closure of the prosecution evidence the learned trial Court examined the appellant on 23-11-2009 under section 342, Cr.P.C. While answering to a specific question 'Why this case against him and why the P.Ws. deposed against him' he replied as under:--

"I have been falsely involved in this case by the I.O. In fact on the fateful day my brother-in-law namely Amir Shehzad was apprehended by the ANF officials from the parking area of Islamabad International Airport where he had gone to see off his two friends namely, Umair Ahmad and Waseem Anwar accused (since convicted in this case). On being summoned by the said Amir Shehzad so that I could manage his release. I went to P.S. ANF along with an amount of Rs.5 lacs accompanied by Kamran Ahmad my co-accused to manage the release of Amir Shehzad my brother-in-law and his two friends namely, Waseem Anwar and Umair Ahmed. The I.O. of this case demanded an amount of Rs.8 lacs for their release but since I had no more money to offer he falsely involved me also in this case and the amount which I had taken along to manage release of the above named persons was shown to have been recovered from me along with four kilograms heroin. The said four kilograms of heroin was falsely planted against me by the I.O. to strengthen the prosecution case. In fact the said four kilograms of heroin was part of 8 kilograms heroin recovered from Umair Ahmed and Waseem Anwer accused these facts find a mention in the log book of ASF because Umair Ahmed and Waseem Anwar accused were in fact apprehended by ASF authorities when they were checking in for Flight No.EK-645 and the said officials of ASF had recovered 8 kilograms of heroin from their baggage. The ANF authorities were subsequently summoned by the said ASF authorities who then arrested the above named two accused namely, Umair Ahmed and Waseem Anwer and falsely planted different quantities of heroin on five persons including myself in this regard. I produced copy of log book in my defence as Exh.D1.

However, he did not opt to appear as his own witness under section 340(2), Cr.P.C. in disproof of the allegations levelled by the prosecution.

8. The learned trial Court after conclusion of trial vide judgment dated 25-11-2009 convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1979 and sentenced to 10 years' R.I. with fine of Rs.5,00,000 and in default of payment of fine to undergo further simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. was, however, extended to the appellant.

9. Feeling aggrieved by that judgment the appellant has challenged his conviction and sentence through this criminal appeal.

10. The main thrust of the argument advanced by learned counsel for the appellant is that the report of Chemical Examiner relied upon by the prosecution reflects that five sample parcels each containing five grams were received whereas the case of the prosecution is that five sample parcels each containing one gram heroin were sent for chemical analysis, therefore, the defence plea of the appellant cannot discarded; that right from the beginning plea of false implication was raised by the appellant; that no independent witness was associated with the recovery proceedings; that although it is alleged that only one gram heroin sample was separated by the P.W.5. Tanvir-ul-Hanif, Inspector, complainant/I.O. from the alleged recovered four packets of heroin which in the circumstances of the case is not sufficient to prove if recovered substance was a narcotic. Even otherwise if the report of Chemical Examiner is seen the Chemical Examiner has specifically recorded that five sealed packets containing five grams heroin each was submitted for chemical analysis; that if the statements of prosecution witnesses specially P.W.5 Tanvir-ul-Hanif, Inspector/I.O. and P.W.2 Waqar Ahmed the alleged recovery witnesses are seen they not only contradicted in respect of material details of the recovery proceedings but they specifically stated that sample parcels of one gram was secured from the alleged substance; that P.W.5 Tanvir-ul-Hanif, Inspector complainant/I.O. and P.W.2 Waqar Ahmed, S.-I. During their examination-in-chief as well as cross-examination specifically admitted that during investigation sample parcels were secured containing five grams substance each; that in the circumstances version put forward by the appellant is proved on record that the instant recovery was not effected from the appellant rather it was planted; that the appellant has specifically denied that the recovery substance and the Chemical Examiner report did not belong to the case in hand and prosecution was obliged to prove the same but no evidence is led in this respect; that the learned trial Court did not consider these aspects and passed the conviction basing on discrepant and unreliable evidence specially further corroborated by the report of Chemical Examiner which is an inadmissible document. Prayed that benefit of doubt be extended to the appellant and he be acquitted of the charge while allowing this criminal appeal

11. Conversely, learned Special Prosecutor for ANF has vehemently opposed this appeal on the grounds that the prosecution through statements of five witnesses charged against the appellant; that the appellant admitted his presence at the spot and subsequently recovery was effected from his prosecution but he with mala fides denied the same. Learned Special Prosecutor referred the report of the Chemical Examiner and stated that the Chemical Examiner specifically has mentioned that five packets of one gram each was received by him for Chemical Anaylsis; that co-accused of the appellant has already confessed their guilt, therefore, it is proved that recovery was effected from them as well as the appellant that the prosecution was able to prove the charge against the appellant beyond any reasonable shadow of doubt and that the learned trial court rightly passed the conviction against the appellant while appreciating the evidence on record in its true prospect. Prayed that this criminal appeal be dismissed

12. We have heard the learned counsel for the parties and perused the record.

13. If the story put forward by the prosecution through complainant (Exh.PC) recorded by P.W.5 Tanvir-ul-Hanif, Inspector/ complainant and also Investigating Officer of the case is seen he specifically has mentioned that on spy information he reached at Airport Parking Area where initially he apprehended Muhammad Asif (present appellant), Aamar and Kamran who allegedly were present along with their bags on their shoulders. They were apprehended and subsequently on checking the bag in possession of the appellant was found contained 4 Kgs heroin out of which one gram was separated for chemical analysis and secured vide memo. Exh.PA attested by P.W.2 Waqar Ahmed, S.-I. and Manzoor Hussain, Constable (given up P.W.).

14. In order to prove the charge against the appellant the prosecution, as already mentioned, got examined five prosecution witnesses and one Iftikhar ul Hassan Naqvi, Deputy Assistant Director, ASF, as CW-1. P.W.1 Muhammad Zubair, S.-I. Moharrir of Police Station ANF Rawalpindi specifically stated that on 19-3-2008 P.W.5 Tanvir-ul-Hanif, Inspector handed over him five sealed sample parcels weighing one gram each and five other parcels of the remaining bulk of heroin in sealed condition which he further handed over on 22-3-2008 to P.W.4 Niaz Ahmed, Constable for onward transmission to the office of Chemical Examiner, P.W.4 Niaz Ahmed, Constable while appearing in court also stated so. The statement of Tanvir-ul-Hanif, Inspector/complainant who was also the Investigating Officer of this case was recorded as P.W.5. He in his examination-in-chief specifically stated that:--

"The travel bag hanging with the shoulder of Muhammad Asif when checked heroin contained in a polythene bag was recovered from underneath the garments from the said bag. When weighed the same came to four kilograms. I separated one gram from the said recovered heroin for sample and made the same into a separate parcel."

This witness during cross-examination further stated:--

"I had received the report Exh.PE of the Chemical Examiner. I had perused the report before placing it on record. If any infirmity is found in such reports, we resort to correspondence with the office of Chemical Examiner. The report is normally received through sealed post. Today I have seen the report Exh.PE which shows that the sealed packets sent to the Chemical Examiner were five in number containing five grams heroin each, volunteers I had sent only one gram heroin as sample pertaining to the recovered heroin from each accused."

15. P.W.2 Waqar Ahmed, S.I. the other recovery witness during cross-examination admitted:--

"It is correct that only one gram was separated from 4 kilograms of heroin recovered from the accused and not four grams. It is correct that if more than one gram of heroin had been sent as sample of heroin recovered from Asif accused to the office of Chemical Examiner, then that sample would not be pertaining to the heroin recovered from Asif accused. It is correct that in my presence 5 grams sample was not sent to the laboratory. It is correct that separate samples were taken from the heroin recovered from each accused and accordingly sent to the office of Chemical Examiner for analysis."

16. Admittedly the burden to prove the charge against an accused lies on the prosecution. When severe punishments are provided under this special enactment i.e. Control of Narcotic Substances Act, 1997 heavy burden lies on the prosecution to prove the charge against the accused beyond any reasonable shadow of doubt. In narcotic cases as keeping possession of a narcotic substance itself is an offence and if conscious possession of any such substance is proved then under section 29 of the Control of Narcotic Substances Act, 1997 burden shifts on the person to show how and in which circumstances he was found in possession of that substance and if he fails to show cause severe punishment can be awarded to him. It is the basic duty of the prosecution to prove firstly that the recovered substance was narcotic and then also it is to be proved with certainty by un-impeachable admissible evidence statements of the prosecution witnesses that the substance was recovered from the possession of an accused person. Herein in this case if the story put forward by the prosecution right from the beginning is seen allegedly the appellant was found present in the parking area of the Airport along with his two co-accused and from his possession a bag containing 4 Kgs heroin was recovered out of which only one gram substance allegedly was separated for sample. As mentioned above, the two witnesses who claim themselves as the witnesses present at the time of recovery of heroin from the appellant specifically stated that only one gram was separated as sample. If the report of Chemical Examiner Exh.PE relied upon by the prosecution is seen it is specifically recorded in para-2 of the report:--

"Five sealed packets said to contain HEROIN w-5/5 gms."

17. Now if the statement of accused-appellant under section 342, Cr.P.C. is seen he in his reply to Question No.3 whereby report of Chemical Examiner Exh.PE was put to him stated

"The report of Chemical Examiner Exh.PE does not pertain to this case and cannot be relied upon."

Admittedly five packets each contain five grams heroin as sample parcel were sent to the office of Chemical Examiner about which report Exh.PE in positive was submitted before the learned trial court which report according to the statement of P.W.5 Tanvir-ul-Hanif, Inspector/ complainant did not belong to the recovered substance from appellant's possession. If this is the situation then one cannot say with certainty that the substance allegedly recovered from the appellant was narcotic. As already mentioned that in special enactment when severe punishments are provided then standard of evidence is also required of high level which unfortunately is lacking in the case in hand.

18. In view of the above discussion, when the prosecution is not able to prove the substance was the same recovered from the appellant the report of Chemical Examiner (Exh.PE) in the circumstances cannot connect him with the alleged recovery of heroin, therefore, benefit of doubt is naturally to be extended in favour of accused-appellant. Thus, while allowing this criminal appeal the impugned conviction and sentence awarded to the appellant Muhammad Asif vide judgment dated 25-11-2009 is set aside. He is acquitted of the charge. The appellant shall be released from jail forthwith if not required in any other case.

H.B.T./M-17/L Appeal allowed.