MUHAMMAD YOUSUF Versus THE STATE

RAHMAT HUSSAIN JAFFERI, J. ‑‑‑The present appeal is directed against the judgment, dated 11‑4‑2000 passed by the Special Court, Control of Narcotic Substances, Karachi Division, in Special Case No.623 of 2000 (State v. Muhammad Yousif), by which the learned Judge had convicted the appellant tinder section 9(c), Control of Narcotic Substances, Act, 1997 and sentenced him to suffer imprisonment for life and fine of Rs.1,00,000 or in default thereof to suffer R.I. two years, with benefit of section 382‑B, Cr.P.C.

2. Brief facts giving rise to the present appeal are that on 1‑9‑1997, the complainant S.H.O. Fateh Muhammad Shaikh of Police Station KPT Karachi and his subordinate staff were on patrolling duty. At about 8‑00 p.m. they reached at I.C.I. Bridge, where the complainant received spy information that a person would bring Charas in a Suzuki Hi‑roof for selling the same to persons of a ship anchored at Seaport. On receipt of the said information, the complainant arranged Nakabandi at the Bridge. Soon there after the said Suzuki Hi‑roof was found coming. They signalled the vehicle to stop. The occupants of the vehicle stopped the same in which two persons were sitting; one was on the driving seat and the other on its adjoining seat. The person who was sitting on the adjoining seat ran away from the vehicle whereas the person sitting on the driver's seat was apprehended. On inquiries, that person disclosed his name as Muhammad Yousuf, the appellant. On the back seat of Suzuki vehicle, three suit‑cases were lying, out of them, two were of black, colour and one was of brown colour. The said suit‑cases were opened. Each suit‑case contained 20 packets of Chara5. The packets were wrapped in brown plastic envelopes. Each packet of Charas was weigh. Its weight came to be 1 kilogram, therefore, the total weight of the Charas became 60 kilograms. The packets were sent to a shop of Kharadar through a police constable for weighing the same. The complainant drew a sample from each packet. The samples and the retraining property were sealed separately. Mashirnama of arrest and recovery was prepared .in presence of A.S.‑I. Ahmed, S.‑I. Muhammad Qadar and private Mashir Mumtaz Khan. He recorded a statement for lodging the report, which was given to constable Tarique Mehmood for taking it to Police Station TPX for registration of the case as the offence took place within the jurisdiction of Police Station TPX, Karachi.

3. The case was investigated by the complainant who after recording the statement and sending the property to Chemical Analyser for examination and report challaned the appellant in the Court of law by showing the co‑accused as absconding. In the meantime, co‑accused Danish Ali was arrested.

4. On 14‑4‑1998, the trial Court framed the charge against the appellant and co‑accused Danish but they pleaded not guilty. During the pending trial proceedings, the co‑accused Danish absconded, therefore, the case proceeded against the appellant.

5. In support of the case, the prosecution examined the following five witnesses:‑‑

S. No.

P.W. No.

Name of Witness

Brief summary of evidence

1.

P.W.1

Mumtaz Khan

A private and independent Mashir. He did not support the prosecution case. He stated that the property was not secured in his presence but the police obtained his signature on a paper by disclosing that he was made Mashir of recovery of Charas. He was declared hostile and cross examined by the prosecutor.

2.

P.W.2

A.S.‑I. Ahmed Khan

Mashir of the arrest and recovery. He supported the prosecution case.

3.

P.W.3

A.S.‑I.

Mashir of arrest and recovery. He Muhammad Qadir also supported the prosecution case.

4.

P.W.4

A.S.‑I. Qamar Zaib Sathi

A.S.‑I. of Police Station TPX. He received the statement of complainant Fateh Muhammad for registration of the case, which he incorporated in 154, Cr.P.C. Book. He stated that complainant S.H.O. Fateh Muhammad conducted the investigation as the same was entrusted to him at his request.

5.

P.W.5

Inspector Fateh Muhammad

Complainant. He supported the prosecution case. He gave the Sheikh details of the investigation and produced the Chemical Analyser report.

6. The appellant in his statement recorded under section 342, Cr. P.C. denied alt the allegations of the prosecution. He further stated as under:‑‑

"I am innocent person. One Iqbal Shaikh who is friend of Investigating Officer has to pay me Rs.20 lacs and Iqbal Shaikh has threatened me that if I will demand money I will be implicated in false cases with the help of Fateh Shaikh. On 31‑8 1997, I was arrested by the police from my house alongwith my Hi‑roof (Suzuki Pick‑up) and such application was made by my mother to the Police Station Baldia Town, Karachi. I produce photocopy of such application as Exh.26. On the following date I was implicated in this false case. Nothing was recovered' from my possession. I pray for justice."

7. He did not examine himself on oath or lead any evidence in his defence.

8. After considering the material available on the record and hearing the parties counsel, the learned trial Judge convicted the appellant, as mentioned above under the impugned judgment.

9. The appellant was dissatisfied with the said judgment; therefore, he has preferred the present appeal.

10. We have heard the Advocate for the appellant, State Counsel and perused the record of this case very carefully. The learned Advocate for the appellant has stated that the private Mashir, Mumtaz Khan has not supported the prosecution case, falsified the prosecution story and so also the evidence of the witnesses on the point of search of vehicle and recovery of Charas; that the evidence of remaining witness viz. two Mashirs and complainant are contradictory to each other on several points, such as; (i) time for leaving the police station, (ii) time about receipt of information, (iii) time of arrival at the place of incident, (iv) light for preparation of Mashirnama, (vi) writing of Mashirnama, (vii) time for preparation of Mashirnama, (viii) signing of Mashirnama. (ix) other activities during patrolling, (x) way leading to the place of incident, (xi) distance of Police Station TPX from place of incident, and (xii) place of weighing the Charas and contents of suit‑cases. He has further stated that the case has been falsely registered in order to usurp Rs.20,00,000 which were to be paid by the friend of the Investigating Officer; that the incident took place within the jurisdiction of TPX Police Station but the complainant investigated the case who was posted at KPT Police Station so that the Police of TPX should not come to know about the true facts of the case, therefore, the investigation was conducted with mala fide intention which has created doubt in the prosecution story. He has further stated that a single doubt if found in the prosecution story then the appellant is entitled for acquittal. On the said proposition he has relied upon Tariq Pervez v. State 1995 SCMR 1345.

11. On the other hand the leaned State Counsel has stated that the complainant has shown three Mashirs in this case as Mashirs of arrest and recovery, out of them, one was a private Mashir, that the private Mashir was won‑over by the appellant, therefore, the prosecution have examined the remaining two Mashirs and complainant; that they have fully supported the prosecution case and implicated the appellant; that the contradictions pointed out by the Advocate for the appellant are minor in nature which can be ignored safely. He has further stated that the complainant conducted the investigation in accordance with law; therefore, the same was not biased. He has further stated that the appellant has failed to prove his defence; therefore, he has supported the impugned judgment.

12. We have given due consideration to the arguments and have gone through the evidence available on the record. We found that the prosecution have examined five witnesses in this case out of which three are Mashirs of arrest and recovery of Charas from the prosecution of the appellant. Out of these three Mashirs, one was private Mashir, Mumtaz Khan who did not support the prosecution case. His evidence reveals that on the day of incident he was present in his house when P.C. Sher Bahadur came and took him to Police Station KPT. He was directed to stay at the gate of the police station. After 2 or 3 minutes, he was called inside the police station where he was told to sign a paper, which he did. On his inquiries P.C. Sher Bahadur informed him that they had recovered some Charas in a matter and he was made a witness. The learned District Attorney declared this witness hostile and cross‑examined him at length. In the cross‑examination, the case of the prosecution was put to the witness but he denied the same. The other two Mashirs viz. A.S.‑I. Ahmed Khan and P.C. Muhammad Qadar and Investigating Officer complainant have deposed the same facts as mentioned in the earlier part of the judgment. However, their statements are contradictory to each other on the points highlighted by the Advocate for the appellant during the course of arguments.

13. All the three police official witnesses are unanimous on the point that at the time of recovery P. W .1 Mumtaz Khan was with them and in his presence, the recovery was effected. But their stand has been falsified by P.W.1. The evidence of P.W.1 has adversely reflected upon the prosecution story and the statement of three police official witnesses, particularly, when there is allegation by the appellant that he was falsely involved in the case because of a friend of the Investigation Officer who had to pay him an amount of RS.20,00,000 and in order to usurp that amount this case was filed.

14. It is pertinent to point out that the incident took place within the jurisdiction of TPX Police Station. The complainant prepared the statement, which he sent to Police Station TPX for registration of the case where the case was registered through P.W.4. A.S.‑1. Qamar Zaib. It is surprising to note that the police of TPX Police Station did not investigate the case but the complainant who had no concern with the TPX Police Station as he was posted at KPT Police Station investigated it. Normally a Police Officer of another police Station is not authorized to investigate a case of another police Station a competent authority transfers the same to him. In this case, the prosecution have not produced any letter from Competent Authority to show that the investigation was transferred from TPX Police Station to the complainant who was posted at KPT Police Station. A perusal of cross‑examination of P.W.4 Qamar Zaib of Police Station TPX reveals that at the request of the complainant Fateh Muhammad the investigation of the case was entrusted to him and then the complainant conducted the investigation. From this admission, it is clear that the complainant was highly interested in the investigation of the case. The complainant did not explain what were the reasons for taking such interest in the case by him that did not occur within his jurisdiction. But on the contrary a question was suggested to him by the defence counsel that ICI Bridge did not fall within the jurisdiction of KPT Police Station but the witness denied the same by taking the stand that the incident took place within the jurisdiction KPT Police Station. He himself has falsified the stand taken by him in the cross‑examination as he stated that he prepared a statement, which was sent to Police Station TPX for incorporating it in 154, Cr.P.C. Book through P.C. Sher Bahadur. Had the incident took place within the jurisdiction of the Police Station KPT then the statement should not have been sent to the Police Station TPX. From the above facts, it is clear that the complainant was taking undue interest in the investigation of this case, which has adversely affected the prosecution story. Had the TPX police investigated the case then the true facts could have been brought on the record. We are aware of the fact that an investigation conducted by an officer not authorized bylaw, would not vitiate the trial as required under section 156(2), Cr.P.C., but the undue interest demonstrated by the complainant in this case clearly shows that the same was investigated by: them with some mala fide intention. The appellant specifically put the above defence and subsequent taken by him in his statement recorded under section 342, Cr.P.C. in the cross‑examination to the complainant but he denied the same.

15. The appellant took the plea in his statement under section 342, Cr.P.C. that his mother bad moved an application about his arrest on 31‑8‑1997, which he produced as Exh.26. A perusal of the said application shows that on 31‑8‑1997, one Iqbal, who is alleged to be the friend of S.H.O. (complainant) took away the appellant forcibly alongwith his Hi‑roof vehicle. The said application was moved before Baldia Police Station. The application bears the stamp of Police Station Baldia that was received by the said police station on 31‑8‑1997.

16. Keeping in view the above position, a doubt has been created with regard to the prosecution story, particularly, from the statement of private Mashir, Mumtaz Khan. In the circumstances of the present case the evidence of Mumtaz Khan carries great weight, which has falsified the case of the prosecution. It is pointed out that the Honourable Supreme Court of Pakistan in a case of Iltaf Hussain v. State reported in 1990 SCMR 167 which was case of recovery of kalashnikov observed that in the absence of evidence of private witnesses, the testimony of police officials becomes insignificant and such evidence was field insufficient to convict the appellant keeping in view the principles of safe administration of criminal justice. In the above authority, the presumption was raised under illustration (g) of Article 129 of Qanun‑e‑Shahadat Order that had the said private witness been examined in the Court he would not have supported the prosecution case. However, in the present case the private witness Mumtaz Khan was examined. He did not support the prosecution case with regard to recovery of Charas from the possession of the appellant. He was declared hostile. The learned District Attorney cross- examined him. The case of the prosecution was put to the witness in the cross‑examination but he denied the same. As such, his evidence has adversely affected not only upon the prosecution story but also the veracity of the statement of police officials. Following the dictum laid down by Honourable Supreme Court of Pakistan in the case of Iltat Hussain (supra) we are of the considered view that the case of the prosecution is highly doubtful, therefore, the appellant is entitled for the benefit of doubt, which is accordingly extended to him.

17. Consequently, we set aside the conviction and sentence awarded to the appellant under the impugned judgment. He is acquitted and set ad liberty. He is present in custody. He should be released forthwith if not required in any other custody case.

18. Above are the reasons of our short order, dated 3‑10‑2003, by which we had allowed the appeal.

H.B.T./M‑15/K Appeal allowed.