Hazrat Bilal vs State

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

JUDGMENT

Cr.A. No. 109-P/2012 Date of hearing...22.1.2015

Hazrat Bilal Vs The State & others.

Appellant(s) by Ms. Farhana Marwat Advocate Respondent(s)/State by Syed Sikandar Hayat Shah AAG.

ABDUL LATIF KHAN, J:- Through instant criminal appeal, the appellant has challenged the impugned judgment dated 15.2.2012, passed by learned Judge, Juvenile Court/JSC, Peshawar, whereby the appellant involved in case FIR No.908 dated 21.07.2011 u/s 9-C CNSA, P.S. Agha Mir Jani Shah, Peshawar was convicted and sentenced to suffer life imprisonment alongwith fine of Rs.10,000/- and in default thereof to further undergo two months SI. Benefit of Section 382-B Cr.PC was also extended to the appellant/convict.

2.As per prosecution case, during

Nakabandi the complainant Mukhtiar Khan SI received information about smuggling of huge

quantity of narcotics to Punjab in a Carry Van so he kept surveillance and in the meanwhile the vehicle/Carry Van bearing registration No.RIZ-8718, came to the spot being driven by appellant, and search of the same led to the recovery of 52 packets of Charas Pukhta weighing one Kg each total 52 Kgs from its secret cavity. 5/5 grams were separated from each packet and sealed into parcel for chemical analysis while remaining quantity was sealed into different parcel. Consequently the appellant was arrested, vehicle and contraband were taken into possession by the complainant who drafted murasila and sent the same to the P.S, on the basis of which instant FIR was registered.

Lateron one Saleem was also arrayed as an accused in the instant case.

3.After completion of investigation, complete challan was submitted against the accused in the trial Court where proceedings u/s 512 Cr.PC were initiated against absconding accused Saleem who was avoiding his lawful arrest and formal charge against appellant was framed to which he pleaded not guilty and claimed trial.

However on the application submitted by learned counsel for the appellant that appellant is juvenile, formal charge was framed against him being juvenile under Juvenile Justice System Ordinance 2000. In order to prove its case, the prosecution examined the following 05 PWs:- PW.1 Bashir Dad Khan SHO, submitted complete challan against accused; PW.2 Mukhtiar Khan ASHO, is Seizing Officer as well as complainant of instant case who recovered huge quantity of contraband i.e. 52 Kgs Charas Pukhta from the secret cavity of vehicle being driven by the appellant in presence of marginal witnesses; PW.3 Shamshad Khan ASI is marginal witness to recovery memo Ex.PW.2/1 vide which the Carry Van alongwith recovered contrabands were taken into possession by PW.2 from possession of appellant; PW.4 Roohul Amin SI on receipt of murasila has registered the case vide FIR Ex.PA; PW.5 Muhammad Hassan CIO has conducted investigation in the instant case; At conclusion of trial the learned trial Court/ Judge, Juvenile Court vide impugned judgment convicted and sentenced the appellant,

hence the instant Criminal appeal has been filed by the appellant.

Arguments heard record perused.

4.Perusal of record reveals that PW.2 (complainant/Seizing Officer) received information about smuggling of huge quantity of narcotics through Carry Van which came to the spot as per PW.2 at 2.30 PM who took half an hour in searching of the same and recovered 52 packets of Charas Pukhta weighing 52 Kg meaning thereby that the recovery has been effected at 3.00 PM while in the murasila the time of occurrence has been mentioned as 2.30 PM but both the referred versions were negated by the alleged marginal witness Shamshad Khan ASI (PW.3) who was allegedly present on the spot at relevant time, by stating that the vehicle in question came to the spot at 1.30 PM and after conducting proceedings on the spot, the PW.2 left the spot at 2.15 PM while he rushed to the Police Post, meaning thereby that he was not present on the spot at 2.30 PM, at the time of alleged recovery of contraband so it is not clear that PW.2 is telling the truth or PW.3 or murasila

has not been written in accordance with law, which badly shatters the prosecution case. According to PW.2, they also checked other vehicles besides the Carry van driven by appellant while according to PW.3, they had not checked other vehicles and only checked the vehicle driven by the appellant.

According to PW.2, he opened the secret cavity by mechanic with the equipment brought from a shopkeeper whose name he did not remember but according to PW.3, the secret cavity was opened by PW.2 himself with the help of equipment available with him. PW.2 stated that he separated samples from recovered contraband through seizure while PW.3 stated that the complainant separated the sample through fingers. Complainant (PW.2) stated that he used 5 grams and 10 grams botts for weighing the contraband/ samples etc while according to PW.3, the contraband were weighed through one Kg bott by PW.2 with a normal scale.

PW.3 (marginal witness) stated that he came to the spot again at 4.10 PM when PW.5 reached there while according to PW.5, he came to the spot at 4.30 PM. PW.3 deposed that the I.O (PW.5)

remained on the spot till 8.00 PM but according to PW.5, he spent three hours on the spot. Besides, contradiction about colour of contraband in the statement of PW.2 and FSL report also makes the case of prosecution as doubtful because according to PW.2, the colour of Charas was black while as per FSL report it was brown.

5.The sending of samples to the FSL is also doubtful as according to PW.2, he himself took the samples to FSL while according to I.O (PW.5) the same is to be sent through Moharrir of the P.S, which shows malafide on the part of complainant(PW.2) who conducted the whole proceedings by himself i.e, conducted recovery of contraband, preparation of recovery memo, drafting of application to the FSL and was so quick to take the samples himself to the FSL accompanied by his gunman, who was also not examined in support of the version of PW.2, creating doubt in the prosecution case. According to him he took the samples to FSL on the same day i.e, 21.7.2011, but his stance was negated by the FSL report wherein it

has been mentioned that the samples were received in FSL on 22.7.2011

6.Admittedly it was a busy place and peoples had attracted to the spot during proceedings as per PW.2 but none from the public have been associated with the recovery proceedings which is clear violation of Section 103 Cr.PC, though police witnesses are as good witnesses as other any private person could be, but when private and independent persons were available at the relevant time, then in order to support the prosecution case, an independent witness should have been examined by the Seizing Officer. Though under section 25 of the Control of Narcotic Substances Act, 1997, the applicability of section 103, Cr.P.C. in the cases under this Act has been excluded and this exemption may give a legal technical support to the admissibility of the evidence of official witnesses, but it does not make them reliable. Man cannot be made moral through legislation. Evidence of such official witnesses should always be examined with a view of the facts that in a society with the level of moral values that

we unfortunately have, a subordinate official is seldom expected to tell the truth in deviation of the expressed or implied instructions of his superior.

7.Apart from the above, the I.O (PW.5) being Investigation Officer, was required to check the articles recovered from appellant as to whether it was actually contraband or otherwise but he also did not bother to even check the same and with close eyes conducted investigation in the case against the appellant showing malafide on the part of prosecution.

8.The testimony of star witnesses of prosecution (PW.2, PW.3 & PW.5) are not trustworthy as they have contradicted each other on material points and failed to establish their case against appellant by supporting each others on the point of time of occurrence, their presence at the time, weighment and other proceedings conducted on the spot. Besides the appellant was tried under Juvenile Justice System Ordinance, 2000 but no challan under Juvenile Justice System has been submitted against him in the instant case.

9.It is alleged that at the time of arrest the appellant was driving the vehicle but no driving license was secured from his possession nor any clarification about non-securing or non-production of driving license has been placed on record by prosecution. Furthermore, no registration document in respect of vehicle has been recovered from the possession of appellant which could depict his ownership regarding the vehicle in question.

10.Despite remaining in police custody, the appellant has made no confession before the competent Court nor any evidence was brought on record in respect of his previous involvement in such like offence which could connect him with the commission of offence. The prosecution case is full of doubt, the benefit of which must go to the appellant. For giving benefit of doubt to an accused, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of

right. The learned trial Court has failed to appreciate the evidence/ material brought on record by convicting the appellant which is against the law as the appellant is behind the bar since his arrest i.e, 21.7.2011 and spent about four years of his life in the jail so in view of the fact that the prosecution has not been able to prove its case against the appellant, this period of detention will be termed as illegal confinement, which cannot be returned to him.

11.For aforesaid reasons, this Criminal appeal is allowed and the impugned judgment of conviction and sentence dated 15.2.2012, passed by learned trial Court/Judge Juvenile Court is set aside and the appellant/convict is acquitted of charges leveled against him. He is in custody, be released forthwith if not required in any other case.

The above are reasons of our short

order of even date.

Announced.

Dt.22.01.2015. JUDGE

JUDGE

“A.Qayum”