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Criminal Appeal No. 7/Q of 1986, decided on 9th February, 1987.

‑‑‑Art. 4‑‑Criminal Procedure Code (V of 1898), S. 103‑‑Recovery‑ Heroin alleged to have been recovered from a car‑‑All prosecution witnesses stating that accused was sitting in front seat of the car from where the Heroin was recovered while prosecution case being that recovery was affected from back seat of the driver and not from the front seat where the accused sat‑‑Judgment of Trial Court showing that accused had admitted that when he sat in the car Heroin was with him‑‑Record not showing any such admission by the accused‑‑Held, accused could not be held responsible for the narcotics allegedly recovered from car driven by another person who had been let off‑‑Since recovery was affected admittedly from back side of the seat where other persons were found sitting and there was no evidence that accused had with him the item that was found to be contraband, it would not be safe to maintain conviction‑ Conviction and sentences passed against accused was set aside and accused was acquitted.‑‑[Recovery].

Iftikhar Muhammad for Appellant.

M. Yaqoob Khan Yousufzai, A.‑G., Baluchistan, Quetta for the State.

Date of hearing: 9th February, 1987.

‑‑ This appeal is directed against the order of conviction, dated 21‑10‑1986 recorded by the learned Additional Sessions Judge‑II, Quetta whereby the appellant Muhammad Ayub has been found guilty of offence punishable under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) and sentenced to ten years' R.I. whipping numbering ten stripes and a fine of Rs.50,000 or in default of payment o , fine to further undergo R.I. for one year.

The prosecution case at the trial was that five kilogram and 100 grams Heroin was recovered from underneath the back seat of the Datsun Pickup No. 36829/Shiraz 14 being driven by one Eid Muhammad (acquitted accused) when the said vehicle was apprehended in the desert area known as Talab five miles away from Gowal stop, ‑a check post of Kharan Rifles within the Naukundi town in Baluchistan.

2. Naib‑Subedar, Shah Alam, the Commandar of Kharan Rifles received secret information in the area under his command that one red colour Datsun was coming in which goods were being smuggled. He ambushed the area and during Nakabandi on 12‑1‑1986 near about the Maghrib prayer a Datsun No. 36829/Shiraz‑14 appeared, was required to be stopped but the driver of the vehicle instead of stopping the vehicle tried to speed up the car but stopped ultimately as fire was opened by the Kharan Rifles. On search five bags wrapped in white cloth and plastic containing Heroin powder weighing five kilogram and 100 grams was recovered from behind the Driver's seat. Besides the Driver Eid Muhammad Jalil and Muhammad Ayub were seated on the front while Imam Bakhsh and Shah Dad were sitting behind the driver's seat. This occurrence took place about five miles away from the Gowal Stop in the desert‑a place about 40 miles away from Naukundi, the Headquarter of the Kharan Rifles. The recovered bags were kept in another bag of Malaishia (cloth) and sealed. All the five persons found in the Datsun Car were arrested. It is alleged that a huge quantity of currency, Pakistani as well as Irani was also recovered. The currency was not counted but put into the bag and only weighed. The accused persons and the articles recovered were brought to the Headquarters wherefrom a communication was addressed to the Narcotics Task Force, Quetta. And one Tanvirul Hanif (P.W.5) came to Naukundi and took away the property alongwith the accused. On 29‑1‑1986 the Pakistan Narcotics Control Board sent the entire narcotics recovered to the Drug Analyst at Quetta and after receiving the report therefrom Exh.P.H. the challan was put up in the Court.

3. The learned trial Court charged all the five accused persons jointly under Article 3/4 of the said Order. The accused pleaded not guilty. The prosecution examined five witnesses. They are P.W.1 Shah Alam, P.W.2 Muhammad Ayaz, P.W.3 Sher Alam, P.W.4 Muhammad Sarfaraz Alam and P.W.5 Tanvir‑ul‑Hanif, the Investigating Officer in this case. P.W.1 (Shah Alam) stated that he is an illiterate person and has only learnt to sign his name. The recovery memo. (Exh.P.A.) was got prepared by Naik Muhammad Ayaz. The witness deposed about the personal search of the accused person but it is interesting to note that the seal which according to this witness was affixed on the parcel could not be definitely stated, first he said that he had written the word yes' but in the next breath he said that he has written only S'. It has also been stated that all the five persons found in the Datsun were blind‑folded and in that condition were brought to the Headquarters. It is also said that from the personal search the identity card of the appellant was taken into possession but when the witness was shown the photostat copy of the identity card of the appellant he flatly denied that it was not the same which was recovered. It was further admitted by this witness that for the first time at Naukundi the accused persons were told that articles (Exh.P.l) were recovered from the vehicle. It was also admitted that the currency found with the accused persons was weighed. The witness admitted the suggestion that all the documents were prepared at Naukundi and were got done by the Narcotics Control Board through Muhammad Ayaz P.W.2. P.W.2 (Muhammad Ayaz) repeated the version which had been said by P.W.1 but contradicted the facts deposed by Shah Alam that the accused were blind‑folded as soon as they were arrested and also the fact that Pakistan National Registration card was recovered from the pocket of the accused Muhammad Ayub. P.W.3 (Sher Alam) another attesting witness in his deposition stated at the trial after seeing the parcel produced in Court that it did not bear the signature of Muhammad Ayaz Naik and accepted that except his signature the signature of no other witness were found. P.W.4 (Muhammad Sarfraz Alam) while affirming his report Exh.P.H. deposed that the articles were brought to him by the member of the Staff Narcotics Control Board on 29‑ 1‑ 1986 and admitted that when the parcels were brought to him it contained the seal of Narcotics Control Board and not the seal of Kharan Rifles or that of Subedar Shah Alam (P.W.1). It was also admitted by P..W.4 that the narcotics received by him weighed five kilograms. (The weight shown in the inventory Exh.P.G. is five kilo and 100 grams).

P.W. 5 (Tanvirul Hanif, the Investigating Officer) admitted that he did not visit to the place wherefrom the alleged recovery was made. No explanation about the delay of more than 10 days in sending the parcel to the Drugs Analyst was offered. It was also denied that the offence mentioned on the recovery memo. were dictated by him to the P.W.2. It is noteworthy that no witness from Kharan Rifle has claimed that any of them was aware of the Law the contravention whereof was being alleged and for which the accused persons were held up. It is also significant that the accused/appellant when examined under section 342, Cr.P.C. neither the property was shown to him nor EXh.P.I was referred to in any of the question put by the learned trial Court. The report of the Drugs Analyst Exh.P.H. was also not put to the accused under section 342, Cr.P.C. thus if these two things are excluded from consideration there remains nothing which may connect the appellant with the commission of the offence for which he has been convicted.

4. We have gone through the judgment of the learned trial Court and found that it is perverse on the face of it. It has been said in para. 10 of the judgment that all the prosecution witnesses have stated that the accused Muhammad Ayub was sitting in front seat of the Datsun from where the Heroin was recovered while it was the case of prosecution that the recovery was affected from the back seat of the Driver (Eid Muhammad) and not from the front seat where was seated the appellant. It is also mentioned in the judgment that the accused Muhammad Ayub had admitted that when he sat in the Datsun the Heroin bag was with him. We have scanned the record but found no such evidence nor any such admission as mentioned by the trial Court. The main question involved in this case was whether the property if recovered actually was recovered from the possession of Muhammad Ayub or he was in any way connected with it. We have not found any such evidence. The learned Advocate -General, Baluchistan admitted frankly that the recovery if at all could be attributed to Eid Muhammad who had been let off and he is not in a position to support the order of conviction.

5. For the above reasons, we are of the opinion that the accused/appellant cannot be held responsible for the narcotics allegedly recovered from the Datsun Pickup No. 36829 driven by Eid Muhammad, Driver. Since the recovery was effected admittedly from the back side of the seat of the Driver where the other persons were found sitting and there is no evidence that the appellant had with him the property that was found to be contraband, it would not be safe to maintain the conviction. Accordingly we accept the appeal, set aside the conviction and sentences passed against the appellant and acquit him of the charge. He shall be released forthwith if not required in any other case.

M.B.A./344/F.Sh.C. Appeal accepted.

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