PLJ
2010 Cr.C. (
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,
2. According to PW-
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 his defence
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 FIR Ex.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
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 the charas,
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 charas was 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.