AHMAD Versus THE STATE

ASIF SAEED KHAN KHOSA, J .---Ahmad appellant was convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 vide judgment dated 20-10-2001 rendered by the learned Special Judge, Anti-Narcotics, Lahore and was sentenced to imprisonment, for life and to pay a sum of Rs.10,00,000 (one million) or in default of payment thereof to undergo imprisonment for two years. The benefit under section 382-B, Cr.P.C. was extended to the appellant. The movable and immovable assets belonging to the appellant were ordered to be forfeited in favour of the Federal Government. The appellant has challenged his conviction and sentence before this Court through the present appeal.

2. After hearing the learned counsel for the parties and going through the record it has been observed that the prosecution's case against the appellant is that on 10-3-1997 Charas weighing 2000 kilograms had been recovered by the authorities at Felixstone Port in England from a container dispatched by Bismillah Exports which is a business owned by the present appellant. In order to establish its allegations against the appellant the prosecution had produced six witnesses before the learned trial Court out of whom only Ch. Muhammad Ismail (P.W.5) has been found by us to he relevant to the conviction and sentence of the appellant. According to the said witness on 26-2-1998 he had recorded a judicial confession made by the appellant before him. The said judicial confession has been brought on the record of this case as Exh. P. E. Apart from the said evidence there is no other incriminating material available on the record against the appellant.

3. As far as the statement made by Ch. Muhammad Ismail (P.W.5) and. the document Exh. P. E. are concerned' we have straightaway observed that the alleged making of a judicial confession by the appellant before P. W.5 had not been put to the appellant during his examination under section 342, Cr.P.C. and, thus, by virtue of the settled legal position in that regard, the said piece of evidence cannot be considered against the appellant for the purpose of recording his conviction. Apart from that the statement made by Ch. Muhammad Ismail. (P.W.5) shows that the necessary formalities required for the purpose of recording a judicial confession had not been fulfilled with by P.W.5. We have also curiously observed that P.W.5 had himself been implicated in this case as an accused person and he was let off the hook only after recording the judicial confession purportedly made by the appellant before him. It is also available on the record that the appellant had submitted an application before Ishrat Ali Khan (C.W.1) on 30-7-1998 (Exh.P.J.) wherein the appellant had maintained that the earlier judicial confession extracted from him was a result of coercion and torture applied upon the appellant and that the said statement was not voluntarily made by the appellant. In view of all these factors available on the record it can conveniently be appreciated that the only piece of evidence which had been relied upon by the learned trial Court against the appellant was the alleged judicial confession (Exh.P.E.) which had not only been retracted by the appellant through Exh.P.J. but the same had not even been put to the appellant during the recording of his statement under section 342, Cr.P.C.

4. It may be true that the appellant had some connection with Bismillah Exports but at the same time it is equally true that there is absolutely no independent evidence available on the record of this case to establish that the appellant was involved in any manner in the export or transport of the contraband substance recovered at the British port. The contents of Paragraphs Nos. 12 and 13 of the impugned judgment passed by the learned trial Court highlight the fact that even the learned trial Court was quite conscious of the fact that the case in hand was not a case wherein the prosecution had succeeded in proving the guilt of the appellant through unimpeachable and independent evidence yet, unfortunately, the learned trial Court had proceeded to convict and sentence the appellant on the basis of material which could not even have been considered against him. It may also be relevant to mention here that in the case in hand no case-property was produced, no sample of the recovered substance was available, no report of the Chemical Examiner was brought on the record to establish the recovered substance to be contraband narcotics and no recovery witness was produced before the learned trial Court. All this leads us to an irresistible conclusion that the prosecution had miserably failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore; allowed, the conviction and sentence of the appellant recorded by the learned trial Court are set aside and the appellant is acquitted of the charge. He shall be released from the jail forthwith if not required in any other case.

H.B.T./A-308/L Appeal allowed.