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Petitioner: ABDUL HADI VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Raja Fayyaz Ahmed, Tariq Mehmood Title: ABDUL HADI vs THE STATE Case No.: Criminal Appeal No,209 of 2000 Date of Judgment:2001-08-15 Reported As: 2002 MLD 265 Result: Appeal allowed
JUDGMENT
JUDGMENT ' RAJA FAYYAZ AHMED, C.J.---This appeal under section 48 of the Control of Narcotic Substances Act, 1997 has been directed against judgment dated 5-7-2000 passed by the learned Special Court/Sessions Judge, Nushki in C.N.S.A. Case No, 21 of 1999 whereby the appellant has been found guilty of the offences under sections 8/17 of C.N.S. Act, 1997 and has been sentenced as under:-- (i) Under section 8 of C.N.S. Act, 1997 sentenced to ten years' R.I. And fine of Rs,1,00,000 in default of payment of fine to further suffer R.I. For a period of one year. (ii) Under section 17 of the C.N.S. Act, 1997 sentenced to three years' R.I. (iii) Both the sentences directed to run concurrently and benefit of section 382-B, Cr.P.C. Extended in favour of the convict. 2. The brief facts of the case are that pursuant to Murasila Exh.P/4-A sent to Incharge Thana, A.N.F., Dalbandin by Sayed Naveed Raza Kazmi of Kharan Rifles case Crime No,2 of 1999 was registered against the appellant under section 17 of the Control of Narcotic Substances Act, 1997 hereinafter referred to as the C.N.S. Act, wherein it has been disclosed that on 3-5-1999 D.I.-G,, Frontier Corps received a secret information through a special spy that a group of smugglers will smuggle huge quantity of narcotics from Afghanistan to Iran via Bagheecha Gul Muhammad whereafter, the D.I.- G. Arranged a patrolling party comprising of Col. Javed lqbal, A.N.F., Quetta, Major Jalal, Cap: Sayed Naveed Raza Kazmi including the other staff of F.C. Which as per plan after undergoing two nights journey reached to the area known as Siyahreg early in the morning on 5-5-1999 near to Pak- Afghan border, being the site about which spy information was received. From this site the patrolling party proceeded in search of the smugglers during the course whereof vehicles of Major Jalal went out of order and he had to stay there with the F.C. Staff and Captain Sayed Naveed
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Kazmi was appointed as Commander of the raiding party, which spotted two vehicles at 7-45 a.m., whereupon they proceeded to besiege the said vehicles and the occupants of the said vehicles, most probably having noticed the activities of the patrolling party opened fire with machineguns on the raiding party which returned the fire and the encounter statedly continued for 30 minutes and taking advantage of the same both the vehicles succeeded in making their way towards Afghanistan. It has further been disclosed in the Murasila that during encounter Gul Rehman No,1262 sustained injury on his leg and during search of the area one of the companions of the smugglers namely Abdul Hadi son of Muhammad lqbal (appellant) was apprehended in injured condition, whereas; his other companion died in the encounter, whose name was disclosed by the injured as Muhammad Anwar son of Noorullah, and; from the spot/place of occurrence (i) two light machineguns, (ii) One pistol, (iii) 134 rounds of light machinegun, (iv) 50 live rounds of pistol, (v) Four Walkie-Talkies, (vi) Two V.H.F. Wireless sets, and; (vii) two booklets of satellite phones were taken into possession vide seizure memo. Prepared on spot in presence of the witnesses, who inscribed their signatures on the memo. And were sealed into a parcel.. Accused Abdul Hadi was arrested and was sent to Kharan Rifles' Hospital, Naukundi for treatment, whereas; the dead body of Muhammad Anwar was taken into possession by the Kharan Rifles for further proceedings. 3. After registration of the case P.W. Cap: Khalid Khan Tarin, Assistant Director of A.N.F. Recorded statements of P.Ws. And took into possession the arms and ammunition etc. Referred to above and filed incomplete challan Exh.P/5-D in the learned Special Court, as MLC of injured Lance-Naik Gul Rehman was not received at that time. Besides accused Abdul Hadi four other accused namely Abdul Baqi, Muhammad Jan, Rehmatullah and Azizullah were also challaned and were shown as absconders. The learned Special Court, hereinafter referred to as the learned trial Court, took the cognizance of the offence and issued non-bailable arrest warrants of the absconding accused, which cotild not be executed and they were proceeded against under sections, 87/88, Cr.P.C. 4. Accused Abdul Hadi (appellant) was indicted on the charge in view of the accusation as contained in the Murasila under section 9 read with sections 8/17 of C.N.S. Act, 1997 to which he pleaded not guilty and the prosecution to substantiate the accusation produced five witnesses namely Gul Rehman Lance-Naik (P.W.1), Muhammad Mushtaq Lance-Naik ANF, Thana Dalbandin (P.W.2), Major Javed Iqbal, Medical Specialist, F.C, Headquarters (P.W.3) Cap. Sayed Naveed Raza Kazmi (P.W.4) and 'Cap. Khalid Khan Tarin, ANF/Investigating Officer (P.W.5). After close of the parties' case, accused was examined by the learned trial Court under section 342, Cr.P.C. Wherein he denied the accusation and disputed the incriminating pieces of evidence, took the plea that at the relevant time he was grazing his sheep when he was apprehended and that he was not wounded and explained that he was assaulted/beaten up with rifle 'Butt' and by legs. Accused Abdul Hadi appeared as his own witness in disproof of the charge within the meaning of section 340(2), Cr.P.C. And produced one defence witness namely Nafas as D.W.1. 5. PROSECUTION EVIDENCE. ' Gul Rehman Lance-Naik (P.W. 1). He deposed that on 5-5-1999 at about 8-00/9-00 a.m., being F.C. Personnel alongwith other staff of F.C. And A.N.F. Under supervision of Brigadier Muhammad Siddique left for patrolling in view of the spy information regarding smuggling of narcotics and when they reached to the desert area they spotted two Land Cruiser vehicles coming from Afghanistan, which they attempted to capture but the occupants of the vehicles opened fire, as a result whereof, he received a bullet injury on his leg and they returned the fire and one of the companions of the accused namely Anwar died on spot and accused present in Court was apprehended in injured condition. According to the witness the other persons during firing made good their escape and he was admitted in Naukundi hospital for treatment. Muhammad Mushtaq, Lance-Naik, A.N.F., Thana Dalbandin (P. W . 2).
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' According to this witness on 3-5-1999 information was received by Brigadier Muhammad Siddique of F.C. That huge quantity of narcotics is being smuggled via Pakistan from Afghanistan and thereupon Col. Javed lqbal of A.N.F. Alongwith his staff and personnel of F.C. Alongwith Brigadier Muhammad Siddique proceeded to the area known as Siyahreg near Pak-Afghan border and he was also a member of the patrolling party. The witness explained that the raiding party was headed by Major Jalal, but on their way the vehicle of Major Jalal went out of order, therefore, Cap. Sayed Naveed Raza Kazmi was appointed as head of the raiding party. He also explained that they left for Siyahreg being the site about which spy information was conveyed. The witness added that he alongwith other members of the patrolling party namely Falak Sher Sepoy, Hayat, Sepoy and the other staff of A.N.F. And F.C. Headed by Cap. Sayed Naveed Raza Kazmi went to the abovesaid site and on 5-5-1999 when they reached to the pointed site, they spotted two vehicles coming into territory of Pakistan from Afghanistan so they took the positions and noticing their presence firing was made on them with machineguns, therefore, they also returned fire which continued for 30 minutes. According to the witness as a result of firing their companion Gul Rehman was injured and under the cover of firing the occupants of the said two vehicles were successful in fleeing away. The witness further stated that during the search which they carried out in the area dead body of one Muhammad Anwar was found and they came across the accused Abdul Hadi, found to be injured and was arrested by them, and; from the place of incident two machineguns, one pistol, four walkie-talkies, two V.H.F. Wireless sets, two booklets of wireless sets, 134 rounds of machinegun and 56 rounds of pistol were taken into possession on spot by Cap. Sayed Naveed Raza Kazmi vide memo. Prepared in their presence on which he and Falak Sher inscribed their signatures. He produced wireless sets, walkie-talkies and the booklets referred to above as articles in Court. The arms and ammunitions taken into possession during search could not be produced through the witness as the same were not brought to the Court in time from A.N.F. Thana, accordingly; the prosecution was permitted to produce such articles through the other witnesses. However, before the witness was discharged the arms and ammunition was brought to the Court and were exhibited through the witness. Major Javed Iqbal, Medical Specialist, F.C. Headquarter, Quetta (P.W.3). ' According to him Cap. Dr. Shahid Munir attended andexamined the injured Gul Rehman of Pinin Scouts. He produced MLC of the injured Gul Rehman as Exh.P/3-A, issued by him under his signature as per hospital record. Cap. Sayed Naveed Raza Kazmi (P.W.4). ' He deposed that on 3-5-1999 he was posted in Khan when D.I.-G./F.C. Balochistan Brigadier Muhammad Siddique received secrete information that some narcotics is being smuggled to Iran from Afghanistan via Bagheecha Gul Muhammad, therefore, according to the witness, Brigadier Muhammad Siddique made a team comprising of Brigadier Muhammad Siddique, Lieutenant Col. Javed lqbal, Major Jalal personnel of A.N.F. And F.C. Besides the witness was included and they reached to the place/area about which information was received and on their way to the destination vehicle of Major Jalal went out of order, therefore, Major Jalal was left at the spot and he was appointed as Commander. Witnesses added that on 5-5-1999 in the morning they were in search of the smugglers in the area and they saw two vehicles but prior to that, according to the witness they were seen by the smugglers, who resorted to firing on them by means of LMGs at about 7-30 a.m. He explained that the area/place of occurrence was known as Siyahreg which is situated at Pak-Afghan border and the place of incident, according to the witness is situated within Pakistan territory. He added that firing continued for 30 minutes and the said two vehicles during firing left towards Afghanistan. After that, during search of the area they found a dead body with which a LMG was lying and also accused present in Court was found in the area having sustained a bullet injury on his haunch and from his possession two LMGs, one pistol, one V.H.F. Wireless set, two booklets of satellite telephones, 134 LMG rounds, 50 rounds of pistol and four walkie-talkies
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were recovered and the same were taken into possession vide seizure memo. Exh.P/2-A prepared by him in presence of Falak Sher and P.W. Lance-Naik Muhammad Musthaq. According to the witness dead body and the accused were taken along to the Headquarter of Kharan Rifles, Naukundi and thereafter, he sent Murasila Exh.P/4-A to Thana A.N.F. For registration of the case. He identified his signatures on the documents referred to above. ' The proceedings conducted by the Investigating Officer Cap. Khalid Tarin (P.W.5), Investigating Officer of the case has been referred to above in para. No,3. 6. DEFENCE EVIDENCE. ' Accused Abdul Hadi in his statement on oath deposed that he is an Afghan national. About eleven months back he was arrested by the Army and Militia personnel from Afghanistan territory situated behind the area known as Siyahreg and at that time he was also accompanied by an other shephered namely Nafas. He explained that when he was grazing his sheep and goats 2/3 vehicles passed on from there with a result that his sheep were scattered here and there, and; during process of gathering them he was arrested and was asked about the identification of the vehicles, to which he showed his ignorance, therefore, he was beaten up and was apprehended and taken to Naukundi and from there taken to Dalbandin. He claimed to be innocent and that at that time when he was apprehended he was present in the territory of Afghanistan. NAFAS SON OF SAFAR (D.W.1). ' He deposed that accused is, known to him, and was grazing sheep and goats behind the area known as Siyahreg located within the territory of Afghanistan. He explained that accused Abdul Hadi was grazing his sheep at a distance of 40/50 paces from his goats when 2/3 vehicles passed from that place and due to the noise of the vehicles the goats of accused scattered here and there and Abdul Hadi thereupon was controlling his sheep when occupants of vehicles, which stopped near to him were found talking with accused, but he could not follow the conversation and thereafter, accused was pulled on by the occupants of the vehicles for seating him in a vehicle as he was not willing to be seated in the vehicle, therefore, accused was slapped and 1/2 rifle butts were inflicted on him and was forcibly taken along by the officials. After that, according to the witness he took the sheep of accused Abdul Hadi to the owner of the sheep namely Saifuddin and informed to him about the event. The witness further added that the place from where the accused was apprehended is at a distance of one day's journey on foot from Pakistan border. 7. We have heard the learned counsel for the appellant as well as Mr. H. Shakil Ahmed, the learned Special Prosecutor for A.N.F.. Mr. Muhammad Aslam Chishti contended that:-- (A) The prosecution has failed to produce any evidence so as to attract the application of provisions of sections 8 and 17 of the C.N.S. Act, 1997 and; there is nothing on record even to make presumption that the two vehicles spotted by the raiding party carried any kind or nature of narcotics or any other article relating to the production, manufacture or preparation of any narcotics nor any nexus of the appellant could be established by the prosecution with the occupants of the two vehicles, alleged encounter with the raiding party or in respect of the arms and ammunition etc. Allegedly recovered from the search of the area, hence; conviction of the appellant by the learned Special Court for the offence under sections 8 and 17 of the C.N.S. Act is wholly unwarranted and cannot sustain. Also; according to the learned counsel in view of the prosecution evidence even the provisions of section 16 of the Act do not attract. (B) Keeping in view the area in which the search of the smugglers was carried out by the raiding party known as 'Siyahreg' falling on Pak-Afghan border and the explanation offered by the accused about his presence in the area which according to him falls within the territory of Afghanistan, presence of accused for the purpose of grazing his sheep supported by D.W. Nafas appears to be natural, inasmuch as; no sketch of place of incident was prepared in order to show that the accused was arrested within the territory of Pakistan. No arms or ammunition or any other kind of
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incriminating material/article was recovered from the accused/appellant nor it has been proved by the prosecution that he suffered any bullet injury through medical evidence, and; that defence plea on the point during trial introduced to the P. Ws. Substantiated through defence evidence, is more probable and convincing than the prosecution evidence on the points that accused allegedly suffered bullet injury. (C) Incharge raiding party has made material improvement as against the prosecution case and the evidence of P.Ws.1 and 2, hence; no reliance can be attached to his testimony. The prosecution failed to discharge successfully even the initial burden, hence; conviction and sentence passed against the appellant cannot sustain nor in the given facts and circumstances of the case he can be convicted for any offence under the C.N.S. Act, 1997. (D) Non-registration of the case under the Arms Ordinance and under relevant sections of P.P.C. Against the accused has a direct and adverse effect relating to the accusation as contained in the Murasila Exh.P/4-A. (E) In consideration of the above arguments and in view of the evidence available on record, appellant is entitled to earn acquittal. He placed reliance on the judgment of the Honourable Supreme Court in the case of Haji Rabnawaz v. Sikandar Zulqarnain and others 1998 SCM R 25 by arguing that the prosecution evidence relating to the accusation does not conform to the probabilities as it emerge from the facts and circumstances of the case, consequently; the same cannot be safely relied upon. 8. Mr. H. Shakil Ahmed contended that through the testimony of P.Ws. It has been established that soon after the encounter dead body of a companion of the smugglers was recovered during search of place of Wardat and close to him accused Abdul Hadi was found lying in injured condition having sustained a bullet injury and from near to him a LMG was taken into possession besides recovery of a large quantity of arms and ammunition including V.H.F. Wireless sets from the place of Wardat, are the pieces of strong circumstantial evidence to safely infer and assume that the appellant was also one of the companions of the smugglers, who alongwith the deceased on having noticed presence of the raiding party opened fire with LGMs on the raiding party in order to provide shelter and cause escape of the smugglers and such piece of evidence of the prosecution are not only consistent but also in all probabilities fit in the circumstances of the case, which the accused failed to rebut or prove his bona fides through defence evidence, consequently; the impugned judgment is unexceptionable. Moreover; according to Mr. H. Shakil Ahmed in all probabilities and in view of the recovery of huge quantity of sophisticated arms and ammunition and the wireless sets it can be safely assumed that the two vehicles of the smugglers which by taking advantage of the firing opened by their companions on the raiding party contained illicit narcotics fled away towards Afghanistan, proves the fact that the deceased and the accused Abdul Hadi had the nexus and directly involved in the commission of the offence for the smuggling of the narcotics, hence; the appellant has been appropriately 'convicted and sentenced by the learned Special Court. No other person except the accused arrested in injured condition and a dead body was found in the area by the raiding party coupled with the recovery of large quantity of arms and ammunition; reflects against the stated bona fide presence of the accused on the spot and the defence evidence in view of the prosecution evidence remained inconsequential, which in no way improve the defence version being highly improbable. 9. We have considered the contentions put forth on behalf of the parties learned counsel in the light of the record of the case, gone through carefully and minutely scrutinized including the impugned judgment. Also the case-law cited by Mr. Muhammad Aslam Chisthi has been considered. The accusation is that pursuant to secret spy information received by the D.I.-G. Frontier Corps on 3-5-1999 a special patrolling party was arranged comprising of the Officers and personnels of the Frontier Corps including the Officers and staff members of A.N.F. In order to
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intercept the group of smugglers about whom information was received that they intend to smuggle a huge quantity of narcotics from Afghanistan to Iran via Bagheecha Gul Muhammad. The raiding party on 3-5-1999 left 'for the area known as "Siyahreg' situated near to Pak-Afghan border being the site about which spy information was received and after undergoing the journey for two nights the raiding party reached to the area, however; on its way the vehicle of Major Jalal went out of order, who as such had to stay there and; Sayed Naveed Raza Kazmi (P.W.1) was pointed as Commander/Incharge of the raiding party and when this patrolling party reached to `Siyahreg' area early in the morning on 5-5-1999 it proceeded in search of the smugglers during the course whereof they spotted two vehicles at 7-45 a.m. And they took steps to besiege the vehicles but the occupants of the said vehicles more probably having noticed the activities of the patrolling party opened fire with machineguns and the patrolling party had to return the fire and the encounter continued for 30 minutes with the result that occupants of the both the vehicles taking advantage of the firing made good their escape in the said vehicle towards Afghanistan. After the encounter was over, the patrolling party made search of the area and during such process they found dead body of one Anwar lying in injured condition, as also large quantity of arms and ammunition consisting of LMGs, live rounds of pistol and LMG, walke-talkies and two V.H.F. Wireless sets (details whereof, referred to in para. No,2 supra) were recovered by the head of the patrolling party P.W. Sayed Naveed Raza Kazmi who took the same into possession vide seizure memo. Prepared on spot in.Presence of P. Ws. 1 and 2 and other personnel which were sealed on spot in presence of these witnesses. It was also disclosed in the Murasila sent to Thana A.N.F. For registration of the case that P.W. Gul Rehman Lance-Naik during the encounter suffered bullet injury on his leg. After taking the proceedings as aforesaid the dead body of deceased Muhammad Anwar, both the injured Gul Rehman and accused Abdul Hadi (arrested during search of the area) alongwith the abovementioned arms and ammunition etc. Were taken to .Headquarters of Kharan Rifles and Murasila Exh.P/4-A was sent to the Thana A.N.F. For registration of the case. ' Gul Rehman Lance-Naik (P.W.1) supporting to the version of the prosecution as contained in the Murasila deposed that when they reached to the pointed area they spotted two Land Cruiser vehicles coming from Afghanistan, which they attempted to intercept but the occupants of the vehicles opened firing as a result whereof he received a bullet injury on his leg and they returned the firing and one of the companions of the accused namely Anwar died on the spot and accused present in Court (Abdul Hadi) was apprehended in injured condition and the other persons during firing made good their escape and he was admitted in Naukundi hospital for treatment. Evidence of Muhammad Mushtaq Lance-Naik A.N.F. (P.W.2) relating to the material facts consequent upon arrival of the patrolling party to the area known as `Siyahreg', is to the effect that when they reached to the pointed site they spotted two vehicles coming into territory of Pakistan from Afghanistan so they took positions and their presence was noticed whereupon firing was made on them with machineguns, so they also returned the firing which continued for 30 minutes. The witness explained that as a result of firing their companion Lance-Naik Gul Rehman was injured and under the cover of firing the occupants of the two vehicles were successful in making good their escape, and; during search of the area carried out by the patrolling party, dead body of one Muhammad Anwar was recovered and also they came across the accused Abdul Hadi, who was found to have been injured and was arrested by them, moreover; two machineguns, one pistol, four walkie-talkies, two VHF wireless sets, 134 rounds of machinegun and 56 rounds of pistol were also recovered and taken into possession on spot by Cap. Sayed Naveed Raza Kazmi vide memo. Prepared in their presence on which he and Falak Sher inscribed their signatures. The recovered articles were also produced and identified by the witness in Court. It is an undisputed and admitted feature of the prosecution case that no illicit narcotic or any other article or thing concerning or relating to the production, manufacture, preparation etc. Of any
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narcotics was recovered from the area searched by the patrolling party except that evidence has been produced by the prosecution to the effect that consequent upon receipt of secret information that a large quantity of narcotics will be smuggled from Afghanistan to Iran via Bagheecha Gul Muhammad in respect whereof no further detail or evidence is available on the record and, therefore, the specially arranged patrolling party proceeded to the site known as `Siyahreg' area situated near Pak-Afghan border in respect whereof according to the P.Ws. And as per Murasila secrete information was received by the D.I.-G., Frontier Corps and on reaching of the patrolling party to the area they proceeded in search of the smugglers about whom information was received and during the course of such follow up two vehicles were spotted at 7-45 a.m. Whereupon the patrolling…
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