Monday, 23 June 2014

Prosecution has to prove the case beyond any doubt

PLJ 2013 Cr.C. (Peshawar) 713 (DB)
Present: Waqar Ahmad Seth and Malik Manzoor Hussain, JJ.
MUHAMMAD IMRAN--Appellant
versus
STATE--Respondent
Crl. A. No. 40 of 2012, decided on 16.5.2013.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 410--Appeal against conviction and sentence--Challenge to--Mst. "G" was an old lady aged about 70 years while the other lady was 21 years old--Even the appellants in their statements u/S. 342, Cr.P.C. have deposed that both the ladies boarded the car for their treatment at Rawalpindi--No recovery was effected from their direct possession and the contrabands were recovered from rear seat and secret cavities of the car--Prosecution had failed to establish that these appellants were in knowledge of the narcotics or the same was exposed to them--From the very first day of their arrest, their plea was that they were passengers and had no link either with the male accused or the vehicle used in the crime--If the contraband was lying open within the view of these appellants/accused or they knew the placement of same in secret cavities, then situation would have been different--Prosecution had simply proved presence of accused in vehicle and mere presence of accused in vehicle would not involve them in the case--The prosecution had failed to prove its case against the appellants--Appeal allowed. [Pp. 717 & 718] A
2009 SCMR 579, ref.
Mr. Noor Alam Khan, Advocate for Appellant.
Malik Manzoor Hussain, Advocate for State.
Date of hearing: 16.5.2013.
Judgment
Malik Manzoor Hussain, J.--Through this single judgment we proposed to dispose of three Criminal Appeals Cr. A. No. 40/2012, Cr. A. No. 41/2012 and Cr. A. No. 81/2012, as these appeals arise out of common judgment dated 25.1.2012, passed by the learned Additional Sessions Judge-VII/JSC, Peshawar.
2.  The appellants in these appeals were tried in case FIR No. 700, dated 5.9.2012, registered at Police Station Gulbahar, Peshawar and after conclusion of trial, the learned Judge Special Court/Additional Sessions Judge-VII, Peshawar vide its judgment dated 25.1.2012, convicted and sentenced the appellants under Section 9 (c) Control of Narcotics Substance Act, 1997, to imprisonment for life with a fine of
Rs. 100,000/- or in default to suffer further one year RI, with benefit of Section 382-B, Cr.P.C.
3.  The prosecution case, in brief, as disclosed in FIR is that there was spy information to Muhammad Attique Shah, SHO Police Station Gulbahar that huge quantity of charas would be smuggled through motor car bearing Registration No. 743-XLI towards Punjab. On the receipt of this information, complainant alongwith other police party, laid a picket on G.T.Road, opposite to Daewoo Adda. In the meanwhile the said motor car came from Peshawar side and was stopped for checking. Two persons were found sitting in front seat, while two ladies were sitting in the rear seat. On query, the driver disclosed his name as Kashif Nawaz (appellant in Cr.A.No. 41/2012) while the other person seated in the front seat disclosed his name as Muhammad Imran (appellant in Cr.A.No. 40/2012) both residents of Okara. The ladies sitting in the rear seat, disclosed their names as Mst. Gulab Jana and Mst. Bibi Hajra (appellants), in Cr.A.No. 81/2012, both residents of Hangu. On search of the vehicle, 100 packets of charas `pukhta', each packet wrapped in different plastic was recovered from the rear seat and Diggi of the motor car in question. On weighment, each packet was found 1 Kg i.e. total 100 Kg. From the entire quantity, 5/5 grams were separated and sent to FSL for chemical analysis. The contraband charas alongwith Motor Car No. 743-XLI Ex.P-2, were taken into possession vide recovery memo. Ex.P.W.4/1 and Murasla was drafted for registration of the case under Section 9(c) Control of Narcotics Substances Act, 1997. On the stated allegations, present FIR was registered and the appellants were arrested
4.  After conclusion of investigation, challan was submitted in the Court of Special Judge, CNS, Peshawar and charge was framed to which the appellants pleaded not guilty and claimed trial.
5.  During the course of trial, the learned counsel for Muhammad Imran convicted accused submitted an application for determination of actual age of the said accused, who was referred to Standing Medical Board, which opined the age of Muhammad Imran accused to be around 18 years and thereafter challan was submitted against him under the Juvenile Justice System Ordinance, 2000 and on 16.6.2011, charge was framed against him under Section 9 (c) CNSA to which he did not plead guilty and claimed trial.
6.  In order to establish its case, the prosecution examined 5 witnesses. P-W.1, Arab Nawaz CIO, who after completion of investigation, submitted complete challan. P-W.2 Ameer Siaf Khan,. SI incorporated murasila in shape of FIR Ex.P.A. P-W.3, Muhamamd Riaz, CIO was Investigation Officer who prepared site-plan and interrogated the accused appellants. Vide application Ex.P-W.3/5, he applied for verification to motor car bearing Registration No. LXL 7334 and also verified vehicle through FSL, the report of which is Ex.PZ. He also received FSL report regarding contraband, which is Ex.PZ/1 and is in positive. P.W.4, Muhammad Attique Shah, is the complainant of the case. He recovered 100 packets of charas from the rear seat and Diggi of the motor car weighing 100 Kg and prepared recovery memo. Ex.P-W.4/1. He also drafted murasila Ex.P.A/1 and vide his application Ex.P.W.4/1, sent the samples to the FSL for chemical analysis. P-W.5, Shakirullah Khan, is the marginal witness of recovery memo. Ex.P-W.A.
7.  After close of prosecution evidence, statement of accused under Section 342, Cr.P.C. was recorded, wherein, they pleaded their innocence. In reply to Question No. 10 of the statement under Section 342, Cr.P.C. of accused, the appellants Kashif Nawaz and Muhammad Imran took a defence plea, which is reproduced as under:--
"The vehicle in question was sold by uncle of accused Kashif Nawaz to one Shah Rehman and accused Kashif Nawaz with Muhammad Imran came to Peshawar as per instruction of their uncle for receiving the remaining amount or motor car. The motor car was returned to them by said Shah Rehman and request was made that female accused requires medical treatment in Rawalpindi, so they may also be transported to Rawalpindi. On the relevant day, he alongwith accused Imran, driver of vehicle were proceeded to Rawalpindi while Shah Rehman followed them in another car and when their car entered in the motorway near Rashakai Interchange they were stopped by some official in white clothes and were mala fidely booked in the instant case."
While the reply to Question No. 9 put to the lady accused under Section 342, Cr.P.C. was as under:
"I am innocent & falsely charged in the instant case, due to my mere presence in the vehicle as passenger having no conscious knowledge about the concealment of narcotics in the vehicle. Moreover, nothing was lying visible therefore I cannot be held responsible for the same, I told the police on spot that I am innocent passenger in the vehicle having no knowledge about the narcotics but they took me to the Police Station and involved in the case due to my mere presence."
8.  The appellants produced no evidence in defence. The learned Court after conclusion of trial, convicted and sentenced the appellants as stated above, hence these appeals.
9.  The learned counsel for the appellants Mst. Gulab Jana & Mst. Hajira (Cr. A. No. 81/2012) argued that appellants have falsely been charged in the case and are innocent. The witnesses are police officials, who deposed falsely against the appellants, therefore, there testimony could not be relied upon. It is further argued that no disinterested witness was associated by the police and there was a glaring contradiction with regard to recovery of contraband as it has been shown in recovery memo. Ex.P-W.4/1 as 9.5 Kg whereas in murasila it is mentioned as 100 Kg. Further contended that the impugned judgment is the result of misreading and non-reading of the evidence available on record as the learned trial Court had not properly appreciated the admitted fact that both the ladies accused were passengers, having no link or relationship with co-accused and having no knowledge of contraband recovered from secret cavities, therefore, the appellants deserve benefit of doubt and be acquitted of the charge.
10.  Learned counsel for the accused/convict in Cr.A.No. 40/2012 & Cr.A.No. 41/2012 argued and adopted the same arguments and mainly contended that they are innocent and have been falsely involved by one Shah Rehman with connivance of police.
11.  The contention of the learned counsel for the appellants Muhamamd Imran and Kashif Nawaz that the appellants are falsely implicated and are innocent, is belied by the statement of P-W.3 Muhammad Riaz and P-W.4 Muhammad Attique Shah, SHO. Both the above mentioned appellants were arrested on the spot and the recovery was made from their possession. Both the appellants have not denied that they were not in possession of vehicle from which the contrabands were recovered, while answering to a question under Section 342, Cr.P.C. though tried to built a story about the possession of the car, but the fact remains that they never denied their presence in the car at the time of recovery. They were arrested on the spot and report of Chemical Examiner is in positive, which further supports the prosecution version. No mala fide or enmity has been alleged nor brought on record against the officials who were I.Os and the witnesses of recovery memo. No material contradiction or discrepancy has been brought out on the record to shatter the credibility of the prosecution evidence. The appellants had failed to prove defence plea by producing any iota of evidence.
Under the circumstances, the trial Court has rightly convicted the appellants, however, with regard to the controversy as to whether the contraband was 100 Kg or 9500 grams makes the case of mitigating circumstance. Thus by maintaining the conviction, the sentence is reduced from imprisonment for life to 7 years with fine of Rs. 100,000/- each or in default thereof to suffer further six months RI. The benefit of Section 382-B, Cr.P.C. extended to them shall remain intact.
12.  So far as the appeal Bearing No. Cr.A.81/2012 filed by Mst. Gulab Jana and Bibi Hajira is concerned, the prosecution has failed to prove any link of these appellants with that of Kashif Nawaz and Muhammad Imran, as they both are residents of Okara while Mst. Gulab Jana and Bibi Hajira are residents of Hangu. Mst. Gulab Jana is an old lady aged about 70 years while Bibi Hajira is 21 years old. Even the appellants Kashif Nawaz and Muhammad Imran in their statements under Section 342, Cr.P.C. have deposed that both the ladies boarded the car for their treatment at Rawalpindi. No recovery was effected from their direct possession and the contrabands were recovered from rear seat and secret cavities of the car. The prosecution has failed to establish that these appellants were in knowledge of the narcotics or the same was exposed to them. From the very first day of their arrest, their plea was that they are passengers and have no link either with the male accused or the vehicle used in the crime. If the contraband was lying open within the view of these appellants/ accused or they knew the placement of same in secret cavities, then situation would have been different. Prosecution had simply proved presence of accused in vehicle and mere presence  of  accused  in  vehicle would not involve them in the case. The prosecution has failed to prove its case against the appellants. In a similar situation, in the case of Qaisarullah Vs. State (2009 SCMR 579), the august Supreme Court of Pakistan while examining a similar question observed as under:--
"The prosecution failed to prove through convincing evidence that Abdul Wali had exclusive knowledge of the concealment of narcotics in a car, which neither belonged nor was being driven by him."
Above are the reasons to our short order dated 16.5.2013, vide which we had dismissed the appeals of appellants Kashif Nawaz and Muhammad Imran (appellants In Cr.A.No. 40 and Cr.A.No. 41 of 2012), whereas the appeal filed by appellants Mst. Gulab Jana and Mst. Bibi Hajira (Cr.A.No. 81/2012) was allowed. The short order reads as under:
"For the reasons to be recorded later, we accept this criminal appeal Bearing No. 81-P/2012 and acquit accused-appellants Mst. Gulab Jana and Mst. Bibi Hajira in case FIR No. 700 dated 5.9.2010, registered under Section 9 (c) CNSA of Police Station Gulbahar, Peshawar. They be released forthwith, if not required in any other criminal case."
(A.S.)   Appeal allowed

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