case law in benefit of doubt

PLJ 2010 Cr.C. (Lahore) 511 (DB)

Present: Syed Shabbar Raza Rizvi and Habib Ullah Shakir, JJ.

AGHA QAIS--Appellant

versus

STATE--Respondent

Crl. Appeal No. 1282 of 2003, heard on 28.5.2009.

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----S. 9-C--Recovery of charas--Offence of--Conviction and sentence--Appeal against--Inspector/PW acted as complainant, witness and Investigating Officer--Under law, complainant and accused are two opponent parties--In other words, they are two contesting parties--Judgment of trial Court was silent on point whether samples or charas was produced in Court or not--Trial Court noted stance of appellant that no charas was ever recovered from his possession--This fact creates doubts or serious lacuna in prosecution case--Unless recovered narcotics were produced in Court, it could not be found that accused was carrying them on his person and were recovered from him--It is very clear from statement of appellant u/S. 342 Cr.P.C. that report of Chemical Examiner was never put to him--Basis of whole prosecution was incriminating report of Chemical Examiner and by not putting same to appellant he was not afforded an opportunity to explain incriminating evidence--Trial Court focused its attention more on defence case to arrive at conclusion--Trial Court forgot that basic responsibility lies on prosecution to prove its case beyond any shadow of doubt in accordance with law--Appellant was acquitted of charges--Appeal allowed.

            [Pp. 515, 516 & 517] A, E, F, G & H

2004 P.Cr.LJ 361, rel.

Police Rules 1934--

----R. 25.2(3)--Role of an Investigating Officer is of a neutral authority whose object is to unearth truth--Investigating Officer cannot be a part or a member of a party in a case which he is investigating--
Rule 25.2 of Police Rules 1934 clearly requires of an investigating officer not to commit himself prematurely to any view of facts for or against any person--It cannot be expected from an investigating officer who himself is a party--Investigating officer is an important witness for defence also and in case he acts as a complainant and raiding officer, defence is deprived of his very precious right at same time and is forced not to depend upon same--Such an investigation is biased investigation--In case head of police party also becomes investigating officer, he may not be able to discharge his duties as required of him under Police Rules.     [Pp. 515 & 516] B, C & D

NLR 1989 SD 11, 1998 SC 408, rel.

Sardar Balakh Sher Khosa, Advocate for Appellant.

Rana Sohail Iqbal, Advocate for Respondent.

Date of hearing: 28.5.2009.

Judgment

Syed Shabbar Raza Rizvi, J.--The learned counsel has filed this criminal appeal under Section 410 Cr.P.C. against conviction and sentence of the appellant which was passed on 10.6.2003 by the Judge, Special Court, Control of Narcotic Substances, Lahore in case FIR No. 21/2001, dated 12.7.2001, under Section 9-C, CNSA, 1997. The FIR was registered at P.S. ANF, Lahore. The appellant was awarded life imprisonment and fine of Rs.300,000/-, in default thereof to further undergo SI for two years.

2.  According to PW-5, a secret information was received by senior officers of ANF that a person with the name of Agha Qais (appellant) was present atBarkat Market, Lahore with the narcotics; a raiding party was arranged under the supervision of one Riaz Somro, Assistant Director consisting of QadeerAhmad Baig Inspector/PW-5 and many other officials of the ANF. At about 12.15 noon, the raiding party reached at car parking of Barkat Market, GardenTown and on pointation of the informer, the appellant was arrested who was holding two cartons in his custody which were taken into custody. Cardboard cartons were opened, from one carton 25 packets of charas were recovered, whereas from the other carton 24 packets of charas were recovered. Each packet weighted one kilogram. In total, 49 kilogram charas was recovered from the possession of the appellant. From each packet, one gram charas was separated for chemical analysis. Two separate sealed parcels of 25 and 24 grams which were sealed with the seal of ANTF, were prepared by PW-5. The remaining packets of charas were put in the same cartons and they were further put in a plastic "Tora" which was made into sealed parcel and was sealed with the seal of ANTF. The charas P1 and took into possession articles P2 to P4 vide memo Ex. PC. The recovery memos were signed by Nouman Ghousand Imran Ranjha PW-s. PW-5 drafted the complaint Ex.PA/1 and sent the same to the police station through Muhammad Yar Watto, Constable for registration of the case. Thereafter, he drew site-plan without scale Ex.PD. He recorded the statements of the PW-s at the spot and deposited the case property with Muharrer on his return to the police station. He also recorded the statements of the PW-s for sending the parcels to the Chemical Examiner and received positive report Ex.PE therefrom. After completion of investigation, he submitted the challan to the Court.

3.  The charge was framed against the appellant under Section 9-C, CNSA on 8.11.2001, who pleaded not guilty and claimed trial. The prosecution in order to bring home the charge, examined five prosecution witnesses. The learned SPP gave up Nauman Ghaus, ASI.

4.  The appellant also recorded his statement under Section 342 Cr.P.C. as well as examined himself under Section 340(2) Cr.P.C. on oath and also produced DW-1, his wife and DW-2, sister of his wife, in hisdefence evidence.

5.  The main case of the prosecution was unraveled by PW-5 as stated above, supported by other PW-s.

6.  On the other hand, the defence version of the appellant is given in statement of the appellant recorded under Section 342 Cr.P.C. While answering Question No. 2, he stated as under:--

"The real fact of the matter is that on 12.7.2001, I alongwith my wife, my wife's sister and a small girl, we came on a car at Barkat Market to purchase some cloths. When we just alighted from the car, in plane clothes some persons immediately came, they were armed with pistols and they encircled us. I was apprehended and my eyes were blind folded I thought that some dacoit had caught me. They boarded me in a vehicle. I was taken to a Bungalow. They told me that I was selling charas which was totally incorrect as they never sent a purchaser to me nor he purchased any charas from me, nor any charas was recovered from my possession. Alongwith me my wife, sister of my wife and small girls were also taken to the aforementioned bungalow. After about two hours they were allowed to go and were told that I would also be released by the evening. On the following day, I was taken to the Katchery and my physical remand was obtained. During my physical remand, I was never interrogated. My vehicle was also released. I have no previous criminal record. No witness was also recorded from the locality, where I lived in regard to my selling narcotics etc. by the investigating Officer."

To Question No. 3, the appellant answered that he did not know anything about any recovery of charas nor any charas was recovered from him. Similarly, the appellant stated that no samples were made in his presence. He also stated that no charas was produced in the Court nor was checked by his counsel. In reply to question as to why the case was made against him, the appellant answered that he had made certain reports against one Khalida and her husband Malangi who deals in narcotics business. The said lady in collusion with the ANF officials manoeuvred the registration of case, recovery, etc. to take revenge from the appellant. The statement of the appellant was also recorded under Section 340(2) Cr.P.C. There is some difference between appellant's statement under Sections 340(2) and 342 Cr.P.C. He stated in his statement under Section 342 Cr.P.C. that on 2.7.2001, he alongwith his wife and sister in law and a small girl went to Barkat Market to purchase some cloths, however, in his statement under Section 340(2) Cr.P.C. he stated that on 12.7.2001 he went to the sister of his wife at Scheme Morr. He was accompanied by his wife and he went there because of marriage of daughter. This fact of marriage of his daughter is not mentioned by DW-1 and DW-2 either.

7.  The learned counsel for the appellant contended that contents of the FIR were not believable. According to him, complainant Kabeer Baig acted in three capacities i.e. a complainant, witness and thereafter as I.O. which is not approved in law; the version of recovery witness PW-4 was not corroborated by any other witness though raiding party consisted of 17/18 persons; and recovered case property was not produced in the Court.

8.  On the other hand, the learned counsel for ANF submitted that raid was conducted in pursuance of advance secret information; the PW-s remained consistent on all material points; PW-4 pointed out in the Court the recovered contraband, a large quantity of narcotics was recovered from the appellant which cannot be planted; no enmity could be proved between members of the raiding party and the appellant; there were contradictions between the defence witnesses, and under Section 9-C CNSA, life imprisonment is provided as minimum punishment.

9.  We have considered the above arguments of the learned counsel. The record has also been perused with their assistance. The learned trial Court mainly based his judgment on testimony of PW-4 and PW-5. For example, in Para-15, the learned trial Court held:--

"In order to prove this version the prosecution has relied upon the evidence of PW-5 Qadeer Ahmad Baig Inspector and PW-4 Imran Hussain Ranjha Both these witnesses have proved the contents of FIREx.PA in toto."

As pointed out above, PW-5 acted as complainant, witness of Investigating Officer. Under the law, complainant and accused are two opponent parties. In other words, they are two contesting parties. Role of an Investigating Officer is of a neutral authority whose object is to unearth the truth. The Investigating Officer cannot be a part or a member of a party in a case which he is investigating. In this regard, guidance may be sought from Chapter 25 of Investigation from Police Rules, 1934. Rule 25.2(3) reads as under:

"It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts far or against any person."

The language of Rule 25.2 above noted clearly requires of an investigating officer not to commit himself prematurely to any view of the facts far or against any person. This cannot be expected from an investigating officer who himself is a party. As a matter of fact, concept of honest investigation is based on non-partisanship and neutrality. The reason and spirit of seParating investigation wing from the operation wing of police also emanates from the same fact which reflects in Article 18 of the Police Order, 2002, therefore, we feel that element of honest, transparent and fair investigation lacks in the instant case. The same point has been discussed by the learned Sindh High Court reported in Nazir Ahmad Vs. The State, PLD 2009 Karachi 191. The Hon'ble Supreme Court has analyzed the above point from another angle also. According to the Hon'ble Supreme Court, investigating officer is an important witness for the defence also and in case he acts as a complainant and raiding officer, the defence is deprived of his very precious right at the same time and is forced not to depend upon the same. The Federal Shariat Court also observed that such an investigation  is  biased  investigation. (Ashiq alias Kaloo Vs. State, NLR 1989 SD 11). In State Vs. Bashir and others, 1998 SC 408, the Hon'ble Supreme Court observed that "as observed above, I.O. is as important witness for the defence also and in case the head of the police party also becomes the Investigating Officer, he may not be able to discharge his duties as required of him under the Police Rules."

10.  PW-4 stated in his cross-examination that the cartons which were in the hands of the accused were available in the Court today packed in Tora of charas. While arresting the appellant and recovering thecharas, no mention of Tora was made. The production of actual packets of charas or charas is also not mentioned by PW-4. The testimony of PW-5 is also silent on this. On the other hand, the appellant in his statement under Section 342 Cr.P.C. clearly stated while answering Question No. 3 as under:--

"I do not know anything about it. Neither any charas was recovered from me nor any samples were made in my presence. The said alleged charas was produced in this Court nor was checked by my counsel."

The judgment of the learned trial Court is also silent on this point whether samples or charas was produced in the Court or not. In Para-12, the learned trial Court noted the stance of the appellant that no charaswas ever recovered from his possession. This fact creates doubts or serious lacuna in the prosecution case. A Division Bench of this Court held, "unless the recovered narcotics were produced in Court, it could not be found that accused was carrying them on his person and were recovered from him". (Riasat Ali Vs. State, 2004 P.Cr.LJ 361) Non-production of the case property in the Court is fatal to the prosecution case and destroys its very foundation. Likewise, it is very clear from the statement of appellant under Section 342 Cr.P.C. that the report of the Chemical Examiner was never put to him. The basis of the whole prosecution is incriminating report of Chemical Examiner and by not putting the same to the appellant he was not afforded an opportunity to explain the said incriminating evidence.

11.  The above two very serious flaws in the prosecution case have not been discussed by the learned trial Court at all. The learned trial Court focused its attention more on the defence case to arrive at the conclusion that there is a conflict between the stance of the appellant that he had gone with his family members to buy cloths for wedding of his daughter, whereas DW-1 and DW-2 did not mention that they had gone to Barkat Market for the purpose of shopping as the appellant's daughter was getting married. The learned trial Court forgot that basic responsibility lies on the prosecution to prove its case beyond any shadow of doubt in accordance with law.

12.  For the above reasons and grounds, we allow this appeal and acquit the appellant of the charges. In our view the prosecution failed to prove its case against the appellant. The appellant/accused shall be released, if not required in any other case.

(Sh.A.S.)          Appeal allowed.