SHER MUHAMMAD Versus STATE

Appellants have assailed a judgment delivered on 9-5-1997 by the Court of Sessions Judge, Batagram whereby they have been convicted under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and have been sentenced to suffer R.I. for eight years with whipping numbering seven stripes and also to pay fine of Rs. 20-000 each or in default to undergo further simple imprisonment for a period of two years each. Benefit of section 382-B, Cr.P.C. has also been given.

2. Muhammad Younas (P.W.5) S.H.O. Police Station Chanjal made a complaint (Ex. PA/1) at the said Police Station District Batagram on the basis of which an FIR was lodged per Exh. P.A. on 7-8-1996. The contents of the said F.I.R., briefly, are that the said S.H.O. was investigating some case under sections 302 and 304/34, P.P.C. accompanied by police party and while returning from Batagram he found a red Datsun pick-up No. P.R.F. 2466 coming from Thakot in a suspicious condition. He gave a signal to stop, but the driver did not do it. The vehicle was followed from Batlay upto Shingly Pain where the police succeeded in stopping it. The vehicle was brought to Police Station Chanjal searched and 105 Kgs. of opium were recovered. After having completed necessary investigation, both the appellants were challaned.

3. Both the appellants were charged under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order 1979, hereinafter referred to as the said order, to which they did not plead guilty. Prosecution examined five witnesses. Gul Dad (P.W.1) Moharrir proved registration of F.I.R (Exh. PA). He was handed over the case property by Investigation Officer on 7-8-1996 and it was sent to the laboratory by him on 12-8-1996. Kafeel Ahmed (P.W.2) constable has proved submitting the case property to the laboratory on 13-8-1996. Niaz Muhammad (P.W.3) Head Constable has proved that he was one of raiding party and that the signal of the party was ignored and after chase the vehicle was overpowered at Shangli Pain. He has proved the recovery of the intoxicant from the vehicle. Zubair (P.W.4) has proved that he was one of the police personnel in the raiding party and from the pickup No. 2466 P.R.E. the recovery of the narcotics was made. Muhammad Younas Khan (P.W.5) S.H.O. and Investigating Officer of the case has proved the story of the prosecution and has also deposed that the vehicle was taken to the Police Station Chanjal alongwith the two appellants, and then the said vehicle was searched in the premises of police station Chanjal resulting into the recovery of 105 Kgs of opium. He has also proved that he drafted the Murasala Exh. PA/1 and sent to the Moharrir for registration of the case. In his statement under section 342, Cr.P.C. Sher Muhammad has replied to a question that he was only travelling as passenger from Besham to Batagram in the said vehicle. He has denied the recovery of the narcotics. Abdullah another appellant has stated in his statement under section 342, Cr.P.C. that neither he was the driver of the vehicle nor is he the owner of the said vehicle that is P.R.F. 2466. He has denied the recovery of the narcotics and has stated that the P.Ws., have deposed against him because they are police officials and are -interested witnesses. Both the appellants have declined to be examined on oath and they have not produced any defence.

4. I have heard the learned counsel for the appellants as well as the State. The counsel for the appellants has contended that the case is not free from doubt; that according to the Investigation Officer Muhammad Younas (P.W.5) the vehicle was searched at Police Station Chanjal, but his Murasala (Exh. PA/1) is indicating that the vehicle was searched at Shangli Pain where it was over powered after the chase; that there are substantial and material contradictions among the P.Ws., who are police officials, that no independent witnesses for recovery was procured; that the recovery memo. Exh. PB is indicative of the recovery of opium in the beginning but at the final end it has been mentioned that it was 105 Kgs. of charas in the following words: Zubair (P.W.4), one of the recovery witnesses has admitted that he is matriculate and he can read and since he could read, therefore, this error of opium converted into charas is indicative that the entire story of prosecution has been fabricated in a hasty manner; that complainant and investigation Officer of the case is the same person which is detrimental to the case; that the alleged offence was committed within the jurisdiction of Police Station Batagram but then the vehicle was taken away from that jurisdiction to the jurisdiction of Police Station Chanjal which is indicative of the mala fides working at the level of police belonging to Police Station Chanjal; that the samples were delivered by P.W.2 namely Kafeel Ahmed four days later and it is not transpiring as to why the recovered material was kept or who was custodian of the said material; that pick up was plying for passenger admittedly and Sher Muhammad was admittedly a passenger; that none of the appellants are proved to be owners of the vehicle; that it appears that no one has claimed the ownership of the vehicle from which the alleged contraband item was recovered; that the reliance has been placed on 1989 P Cr. L J 601, 1995 MLD 1532, 1992 SCMR 1475 and two unreported cases of this Court namely Criminal Appeal No. 1/I of 1993 (Mosam Khan v. The State) and Criminal Appeal No. 142/1 of 1996 (Taga Khan etc v. The State). The counsel for State has stated in writing that there is nothing in the record to suggest that even the place named Shangli Pain was outside the jurisdiction of Police Station Chanjal; that vehicle used for carrying passengers in such areas are normally over loaded whereas the present vehicle was carrying only one passenger from Besham to Batagram in suspicious condition; that the so-called contradictions are only minor discrepancies which could not set aside the story of prosecution.

5. At the outset I have come across a fact that in the Murasila (Ex. PA/1) and F.I.R. (Exs. PA) a reference has been made to a red-coloured Datsun No. 2466-P.R.F. in which the recovered narcotics were being transported by the appellants/accused, but in column No. 5 of the final challan the Datsun becomes E Toyota. Another fact which has been noted by me is that in the memo of recovery (Exh. P.B), it has been stated in the middle that from the vehicle 105 Kgs. of opium were recovered. In the end of the same Ex. PB it has been said that 105 Kgs of charas were recovered. Zubair (P.W.4) F.C. and one of the witnesses of recovery has replied to a suggestion in this respect as under:

"I am matriculate and can read. Fard Exh. PB is wrong as opium has been recovered and not the charas. The memo Exh. PB correctly bears my signature. I have seen Exh. PB it is the same recovery memo. which was prepared in the Police Station."

The learned counsel for State has vehemently argued that in the memo of recovery it is a clerical mistake to the extent that in the end opium has been stated to be charas. But the question arises as to how and under what circumstances a Datsun is becoming Toyota in the challan. Then neither there is any mention of the Registration Book, driving licence and other related documents concerning the vehicle nor their is any serious effort transpiring from the record to trace out the owner of the vehicle. The recovery was made from inside the secret second floor which was opened with implements. Under such circumstance, then, it was incumbent for Muhammad Younas Khan, S.H.O. and Investigation Officer, to trace out the owner of the vehicle. But what he did is coming up in his own deposition as P.W.5 in the following words:

"The owner of the vehicle has so for not been known. I have written to the Registration Officer Peshawar for letting us known about the name of the owner of the vehicle but the Registration Officer did not make any reply."

But the police record before me does not carry even a copy of such writing. To establish the commission of an offence, it is essential to establish C mens rea and knowledge about the existence of an incriminating material or a fact. Here both are absent. So far as appellant Sher Muhammad is concerned, he has stated in his statement under section 342, Cr.P.C. that he was travelling as a passenger in the said pick-up. Now it was for the prosecution to establish that he was not a passenger. On the contrary, Muhammad Younas Khan (P.W.5), Investigation Officer, has admitted as under:

"We though had 'prior information of the contraband in the vehicle, however, we did not picket at that time. Sher Muhammad accused is the resident of Deer. It is correct that the Pickups are used in this areas for carrying passengers. Sher Muhammad was accompanying the other it is, therefore, he has been arrested."

It simply means that without having proved beyond reasonable doubt the guilt of appellant Sher Muhammad, he was roped in the case. So far as the case of appellant Abdullah is concerned, his co-appellant Sher Muhammad is not denying him to be a driver of the pick-up at the relevant time. To certain questions regarding recovery of the contraband items he is replying as under:

"I am innocent and falsely charged in the case. I was not in the knowledge that there are contraband in the vehicle nor I am the owner of the vehicle, nor I have concern with the contraband. I was travelling as passenger from Besham to Batagram in the said vehicle."

In other words, there is admission of the recovery but denial of the mens rea or knowledge. At the level of appellant Abdullah there is total denial, even that of driving the vehicle in question. But this weakness in the defence of appellant Abdullah cannot be used by the prosecution in its favour unless it stands on its own footings. The difficulty is that the prosecution has left so many aspects unresolved that doubts stand generated in its own story as is being discussed here under.

6. Murasila (Exh. PA/1) and F.I.R. (Exh. PA) indicate that the vehicle was chased and over-powered at Shangli Pain. It was then brought to police station Chanjal, was searched and during search the floor of the said vehicle Datsun was found doubled. About this Murasila (Ex. PA/1), Gul Dad (P.W.1) is deposing:

"During the days of occurrence I was posted as Muharrir in present police station. On the day of occurrence i was in Police Station. On the receipt of Murasala brought by constable Zubair on 7-8-96 at 1900 hour I have registered the case vide F.I.R. No: 15 dated 7-8-1996."

In substantial conflict with this deposition, Muhammad Younas Khan (P.W.5), S.H.O., is deposing:

"As the Murasala was drafted in the premises of the Police Station, therefore, I myself handed over the same Murasala to the Muharrir of Police Station for the registration of the case. "

Who is correct then? Whether Gul Dad (P.W.I)` Moharrir, deposing that constable Zubair brought the murasila (Ex. PA/1) or Muhammad Younas Khan (P.W.5), S.H.O. and Investigation Officer who is deposing that he himself drafted murasila at police station and handed over the murasila to the Moharrir at the same police station? Zubair constable (P.W.4) could have resolved this material conflict, but he is silent on this aspect. However, his following piece of deposition is indicative that the incriminating material was kept secret in a manner that even the driver appellant Abdullah might not have known about the existence of such a material in the vehicle he was driving unless his knowledge was proved by the prosecution beyond reasonable doubts in the circumstances of the case.

"S.H.O. himself unscrewed the nut bullet of the vehicle. S.H.O. was having the necessary articles for unscrewing."

7. It is also surprising to note that P. W.5 is contradicting himself in the same breath in the following words:

"The recovery was made in the premises of Police Station, however, I did not make F.I.R. as the recovery was not made inside the police station building. I have personally weighted the contraband recovered by me. "

8. The learned counsel for appellants has also agitated another weakness in the story of prosecution creating doubts and that is about the delivery of samples of alleged recovered opium in the office of chemical examiner on 15-8-1996. Gul Dad (P.W.1) Moharrir is deposing:

"The I.O. handed over the case property to me which I have kept and then on 12-8-1996 the case property was sent to the Laboratory by me through constable Kafeel Ahmad as per directions of the S.H.O. No one interfered with the parcel during my possession."

To a suggestion he is replying.

"I do not remember the exact time of entrustment of the case property to Kafeel constable. "

Kafeel Ahmed (P.W.2) is deposing:

"I received the parcels at evening time on 12-8-96, tit was about 4.00 or 4-30 p.m. It is correct that Police Station Chanjal is situated on KKH road. It is also correct that KKH road is a busy road and normally vehicle play on it round the clock. After receiving the parcels I have been waiting for the vehicle but could not get the same and I kept the parcels with me in the Police Station. The next day i.e. 13. I left for Peshawar at 9.00 a.m. I stayed at Mansehra on 13-8-1996. I remained in my house. The parcels were with me and I stayed in my home where I had kept the parcels. I have gone to Mansehra in a wagon. I left for Peshawar from Mansehra at 12.00 noon on 14-8-96 in a wagon and reached Peshawar at about 4.00/4-30 p.m. I stayed in Hujra Hotel in Peshawar, the parcels were with me in the Hotel. I have not gone to any P.S. during my journey from Batagram to Peshawar. I have handed over the parcels on 15-8-96 at 9.00 AM and came back from Peshawar on the same date "

The denial about the memory of the time of handing over the samples by P.W.1 and affirmation of P.W.2 that the time was 4 or 4-30 p.m., then the narration about various stays at Mansehra, Hujra Hotel at Peshawar and final delivery on 15-8-96 is indicative that the samples were lying at various places from 12-8-1996 upto 15-8-1996 and this creates doubts about the safe custody in the circumstances of the case.

6. It has also been contended that Muhammad Younas Khan (P.W.5) has combined in himself quadruple positions of complainant, Investigation Officer, S.H.O. and a witness of recovery and since it is so, he was obliged to give a reasonable explanation in respect of his wilful omission to call respectable persons of the locality to attend and witness search and recovery. This is not only a violation of the mandatory provisions of section 103, Cr.P.C. which exposes the recovery to distrust and unreliability, but it is also amounts to mockery of law. Reliance has been placed on, inter alia, 1995 MLD 1532, 1989 P Cr. L J 601 and unreported case of a Division Bench of this Court entitled Taga Khan etc v. The State in Criminal Appeal No. 57/Q of 1996 and Criminal Appeal No.38/I of 1996. All these cases are relevant in view of the following pieces of evidence on the record.

To certain suggestions by appellant Abdullah, Muhammad Younas Khan (P.W.5) is replying:

"The vehicle was overpowered by me in Shungli Pain at about 3-50 p.m. It is correct that village Shungli Pain is big village comprising of population of one thousand or more. I reached the P.S. Chanjal alongwith accused and vehicle at about 4.00 p.m. The moment we reached P.S. Chanjal the first thing we did the search of the vehicle. It might have taken 2 to 3 minutes searching the vehicle. "

Niaz Muhammad (P.W.3) Muharrir is deposing:

"It is correct that Peshawar Bazar does fall within the way. It is correct that there remains rush in bazar. It is also correct that Kot Galla Chair lift also does fall in the way. It is also correct that the same Chair left is also in KKH road. It is incorrect that there remains people present round the clock. The witness volunteered that occasionally people remained present at Chair lift. I cannot tell whether three Chair lifts of village Hotel does fall in the way or not. I remained in Police Station Chanjal for a period of 18 months. I have visited Hotel village for many times. There remain people present on Chair lifts of Hotel village. Then Batlay Bazar comes in the way and there remains rush in Bazar. It is correct that there is a Paka built house of one Shah Zada adjacent to Police Station. The houses of Ayub Mian are at a distance of one furlong from Police Station. It is correct that Police Station Chanjal is situated at KKH road, and it is a busy road. Normally vehicles are checked near P.S. Chanjal, however there is no special Barrer for this purpose. Shah Murad road also leads adjacent to the Police Station Chanjal. The vehicle was stopped in front of the Police station. There is no shop near the Police Station. The flour Mill and the rice machine of Khasta Baz Mian is situated at a distance of ten yards from Police "Station and there is a Mosque adjacent to the flour Mill. It is incorrect to suggest that people from the locality come for offering prayer. Witness volunteered that only Police official performed prayer in the said Mosque as the village Abadi is a quite sufficient distance from the Mosque. None from the public was called by the Investigating Officer at the time of search of the vehicle, as the people normally do not associate with the investigation of the case."

All these pieces of evidence do suggest that independent persons were available at various positions but they were not joined as witnesses of recovery. When coupled with the following piece of evidence of P.W.5, the doubts created are doubled:

"Witness volunteered that there was information of smuggling about the said vehicle. I had not mentioned the factum of information in my murasla as I did not deem it necessary."

In these circumstances, I also find myself bound by a ruling of the apex Court cited as 1997 SCMR 1494 which reads:

"After hearing the learned counsel for both the parties and perusal of record it may be pointed out that in the instant case the Investigating Officer having prior information ought to have associated disinterested person while laying the picket Nakabandi and then at the time of personal search of the appellant. No doubt in absence of any mala fide or motive for false charge reliance can be placed on the statements of the official witnesses but when recovery of the substance by itself is the main offence the statement of such officials (police witnesses) peed to be properly appraised and minutely scrutinised and the benefit of doubt, if any, arising from the reading of their statement shall be extended to the accused."

Another ruling of the Supreme Court of Pakistan cited as 1992 SCMR 1475 at Placentium B, C and D are relevant and bind me to declare that having previous knowledge about smuggling in the vehicle, as admitted by Investigation Officer, first of all he should not have concealed it in his murasila (Ex. PA/1) and F.I.R (Exh. PA) and then he should have arranged for two respectable inhabitants of the locality where the Police Station Chanjal was situated. In the circumstances of the present case, the deposition of P.W.5 (i.e. complainant plus three more in one) is not at all transpiring confidence.

10. The contention that alleged offence had taken place within the jurisdiction of Police Station Batagram, but F.I.R. was lodged out of jurisdiction at Police Station Chanjal appears to be misconceived. In this regard the learned counsel for State has submitted written argument which is sufficient to clarify this contention and is quoted verbatim:

"The vehicle containing contraband was signalled to stop near a place named 'Batlay' which lies well within the ambit of Police Station Chanjal and that there is nothing on record to suggest that even the place named 'Shungli Pain' Where the vehicle was intercepted and over powered after chasing it is outside the jurisdiction of Police Station Chanjal. "

11. Since the case is not free from doubt, therefore, extending such benefit the impugned judgment is set aside and the appellants are acquitted from the charge. They may be released if not wanted in any other case.

12. Since none has claimed the ownership of vehicle, it shall remain confiscated to State. The case property shall be kept intact till the expiry of the period of Petition for leave to appeal in the Supreme Court of Pakistan and if it is preferred then it shall remain intact till final disposal of the petition/appeal.

H.B.T./1179/FSC Appeal accepted.