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Petitioner: IFTIKHAR AHMAD Alias BOBI And Another VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Ibadat Yar Khan, Gul Muhammad Khan, Muftakhiruddin Title: IFTIKHAR AHMAD Alias BOBI And Another vs THE STATE Case No.: Criminal Appeal No.37/K of 1989 Date of Judgment:1989-08-02 Reported As: 1991 P Cr. L J 488 Result: Appeal allowed
JUDGMENT
JUDGMENT MUFTAKHIRUDDIN, J.---This is an appeal against the judgment dated 23-5-1989 passed by Mrs. Qaiser Iqbal, the Additional Sessions Judge, Karachi (East) whereby the appellants have been found guilty of an offence punishable under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to life imprisonment and have been ordered to pay a fine of Rs.10,000 or suffer R.I. For one month in default. They have been also awarded ten stripes. 2. The allegations against the appellants are that on 20-2-1987 at 9-00 p.m. They were apprehended at Tool Plaza Super Highway, Karachi while they were found travelling in a Suzuki car (white colour) No.221-533 and two kilograms heroin powder was recovered from the car. The allegations in that behalf are contained in the F.I.R. Lodged on 20-2-1987 at Police Station, Pakistan Narcotics Control Board, Defence Housing Society, Karachi at 23-00 hours by F.I.O. Ghulam Muhammad Shaikh and it is alleged therein that on 20-2-1987 while the said officer was posted at Police Station Defence Housing Society of P.N.C. Board, an information was received that one Suzuki car of white colour bearing No.221-533 was being employed in the smuggling of narcotics and would pass through Tool Plaza Super Highway, Karachi. A raiding party consisting of F.I.O. Muhammad Khan and some subordinate staff was formed and at Teen Hatti two taxies driven by Muhammad Sharif and Muhammad Wakil were engaged. At 5-00 p.m. The party which also included some policemen reached Tool Plaza and waited for the Suzuki car. At about 9-00 p.m. The suspected car emerged from Karachi side and when signalled to stop did not stop but proceeded ahead. It was chased and ultimately encircled after having gone for some distance. The Suzuki car was being driven by Iftikhar Ahmed alias Babi and by his side was seated Saleem Ahmad Khan son of Bashir Khan of Karachi. On the personal search of the accused Iftikhar Ahmad, currency notes
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valuing Rs.200 were recovered from his hip pocket. A driving licence NoA-540-405 in the name of Iftikhar Ahmad and a citizen watch were also recovered from him. From the personal search of the other person namely Saleem Ahmad, ten notes of Rs.10 denomination were recovered. On interrogation from Iftikhar Ahmad, he produced from his seat a paper bag and from further search of the front seat adjacent to the driver's seat another paper envelope (bag) was found. The bags were opened and tested and found to contain heroin powder. Each bag was separately weighed and found one kilogram each. The recovered articles alongwith the car were taken into possession by the police. Samples from the bags were obtained for the chemical analysis. The samples and the articles recovered were separately sealed. The accused persons were formally arrested and brought to the police station where the formal F.I.R. Was recorded. The investigation was undertaken by F.I.O. Ghulam Muhammad Shaikh himself. 3. The alleged samples were sent to the Custom Department (Custom House Karachi) as well as National Institute of Health (Drugs) Control and Research Division for analysis. On receipt of the positive reports, the accused/appellants were sent up to face the trial. The charge was framed by Mr. Ghulam Hussain Memon (Sessions Judge, Karachi East) on 4-4-1987 and on the denial by the accused persons the prosecution was called upon to substantiate the charge by evidence. The prosecution produced only three witnesses. They are P.W.1(Muhammad Sharif) as Mashir war examined on 5-5-1987 by Mr. Ghulam Hussain Memon (Sessions Judge) and P.W.2 (Muhammad Khan, F10.) and P.W.3 (Ghulam Muhammad Shaikh, F.I.O.) were recalled for examination by Mrs. Qaiser Iqbal, IInd Additional Sessions Judge (East), Karachi on 7-2-1989. The learned Prosecutor vide his statement made in Court on 15-2-1989 gave up the witness Muhammad Wakil (witness of the recovery and a Mashir) and later on 6-3-1989 closed the prosecution case. 4. The accused persons were examined under section 342, Cr.P.C. Iftikhar Ahmad appellant in his statement denied his apprehension on 20-2-1987 and also the recovery of two kilograms heroin from the seat of the Suzuki but admitted that Rs.200 alongwith the driving licence bearing No.339504 was seized by the police. The appellant Iftikhar Ahmad in his statement on oath stated that he was arrested by the police on 18th February, 1987 at about 6-00 p.m. It was further stated that he was kept in lock up and on 20th February, 1987 came to know that he was involved in a case of heroin. One Saleem Butt owed a sum of Rs.2,24,000 to his late father. The amount was not paid and altercations had taken place between the said Saleem Butt and his late father and the accused Saleem Butt was, therefore, instrumental in his involvement in this case. Saleem Ahmad Khan (appellant) denied the allegations and in his statement under section 340, Cr.P.C. Deposed that he was arrested on 18th February, 1987 and was in the company of Iftikhar at Al-Karam Square in the car when the car was stopped and they were detained by Excise police at Police Station Defence Society and on 20th February, 1987 were implicated in the false case of heroin. 5. The defence witness, Iftikhar Hussain son of Khan Afzal, a Branch Secretary of Workers Fund, Habib Bank Ltd., Karachi, deposed on oath that on 19th February, 1987 he had come to know that the accused persons were arrested by the police. He had gone to Excise Police Station at Defence to enquire about the charge and was informed that the accused were implicated in the smuggling of heroin. On enquiry by the witness the accused had told him that he (accused) alongwith co- accused Saleem Ahmad was going to recover money from his customer when at Al-Karam Square they were arrested by Excise Police on 18-2-1987. The other defence witness named Khalid Mahmood son of Muhammad Ramzan, General Secretary of Shopkeepers Association of P.E.C.H.S. Karachi corroborated the version of D.W. Iftikhar Hussain and stated the same facts as deposed by the D.W.I. The significant aspect of the case is that both the defence witnesses were not cross- examined by the learned A.P.P. And not a single question to challenge their status in life and the fact that the D.Ws. Had seen the accused persons in custody on 19th February, 1987 at Police Station at Defence was put by the Prosecutor. Thus, their version went unchallenged.
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6. The learned trial Court believed the prosecution version and brushed aside the defence plea. Statements of defence witnesses were termed `hearsay'. Accused persons were accordingly convicted and sentenced as mentioned above. Mr. Azizullah Shaikh, Advocate appeared for the appellants and Mr. K.M. Nadeem, A.A.-G. Sindh represented the State. 7. The learned counsel for the appellants has assailed the order of conviction and has contended inter alia that (A) The Trial Court-has not properly appreciated the evidence on record. The prosecution evidence itself is contradictory on material facts. P.W.1 (Muhammad Sharif) has not corroborated the contents of the recovery memo and thus the alleged recovery is not proved beyond doubt. (B) The trial Court has erroneously placed reliance on the evidence of seizing officers of Narcotic Agency. The implications of statement of the so-called recovery witness have not been given due consideration. The prosecution evidence is thus discrepant. (C) The evidence of the prosecution regarding the place and date on which the samples were secured and sealed is self-contradictory. (D) The prosecution has not established the safe custody of the recovered property and its safe transportation to the Chemical Examiner. Thus, the required chain is not established. Since the recovery itself is doubtful the report of the Chemical Examiner does not advance the case of the prosecution. (Fl The trial Court has erred in law is not accepting the statements of the defence witnesses and contended that the two defence witnesses were not cross-examined by the prosecutor. The defence plea stands proved. The learned AA.-G. On the other hand has supported the conviction of the appellant Iftikhar Ahmad only and submitted that P.W.1 is an undeclared hostile witness. If his evidence is ignored there still remains the evidence of the officers of the Narcotic Control Board which supports the prosecution case and laid stress on the proposition that there is no rule that the testimony of the Police Officer cannot necessarily be disbelieved merely because he is a policeman and relied on Kamir v. Nazir Ahmed and others 1980 SCMR 791 and Muhammad and others v. State PLD 1981 SC 635. The learned AA.-G. Did not press the conviction of the appellant Saleem Ahmad and conceded that he was a mere passenger m the car with no knowledge of the existence of the narcotics in the car and may be acquitted of the charge. 8. The entire evidence has been read before us. For the proper appreciation of the evidence on record. It is necessary to mention the salient features of the evidence of P.W.1 (Muhammad Sharif) an alleged eye-witness and the Mashir of the recovery. In the examination-in-chief he deposed `on 20-2-1987 at about 4-00 p.m. He was standing at taxi stand, Liaqatabad, Karachi. Ghulam Muhammad Shaikh Inspector, P.N.C.B. And other Muhammad Khan came to me and asked that they want to engage two taxies for going to Super Highway. He and Muhammad Wakil driver of "other taxi agreed. They went towards Super Highway. Stayed at Tool Plaza at about 8-30 p.m. One Suzuki car was coming from Karachi side towards Hyderabad side. Suzuki car was stopped at 9-00 p.m. Accused Iftikhar Ahmad was driving the Suzuki car while co-accused Saleem Ahmad was sitting on the front side of the driver's seat. Accused Iftikhar Ahmad was asked to divert the car and same was diverted towards Karachi and was made to stop beyond Tool Plaza. Police took search of the Suzuki car and secured two bags of powder from the back seat of the car. Bags were lying hidden behind the back seat. Police weighed both the packets and each packet was weighing one kilogram. Police took out samples from both the bags and sealed it as well as both the packets separately. Police brought us to the Defence Police Station P.N.C.B. Where Mashirnama was prepared. I see Mashirnama, it bears my signature but contents of Mashirnama were not read out to me. I produce Mashirnama Exh.6. Other Mashir was Muhammad Wakil. Contents of Mashirnama Exh.6 are now read out to me and its contents are correct except that driving licence was not secured in my presence from accused Iftikhar Ahmad. I see two packets of heroin powder in the Court which are same which I produce as Articles A and B which were secured from the possession
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of the accused. In the cross-examination, he deposed that both packets were taken out from the car by the Investigating Officer Ghulam Muhammad. Accused did not show or took out heroin from the car. My signature on Mashirnama Exh.6 was taken on the next day at the police station as I was directed to come at police station. Samples were also taken from the heroin packets at police station. Samples were sealed in my presence by the police. The witness however stated that his signature was not taken-on the samples. A question put by the counsel for the accused persons. Q. "Whether signature from any other person was taken on the sample in your presence? The trial Court disallowed the question as according to the learned Sessions Judge, `witness has already given reply about his signature". 9. P.W.2 (Muhammad Khan F.I.O.) deposed that `on 20-2-1987 he was posted as F.I.O. At Defence Police Station of P.N.C.B. A spy information was received that at any time the Narcotics would be smuggled outside Karachi. On this information he and F.I.O. Ghulam Muhammad Shaikh alongwith the staff left the office on 3-30 p.m., reached Teen Hatti and arranged for two private cars which were driven by P.W. Muhammad Sharif and Muhammad Wakil. At about 6-00 p.m. The raiding party reached Tool Plaza where police staff was included and they were also included in raiding party, we informed the police party about the Suzuki (white) bearing No.221-533. After waiting for a long time the vehicle arrived which was drived by one man and the second was sitting beside him on the front seat. We tried to stop the Suzuki but despite of our signal the driver tried to run away. We surrounded the Suzuki from the two vehicles with us, thereafter, on interrogation the man driving the Suzuki disclosed his name as Iftikhar alias Boby whereas the man sitting with him disclosed his name as Saleem Ahmed. Accused Iftikhar Ahmed took out one bag of white paper from the front seat, and on further search of the Suzuki car the second bag was secured under the front seat of the Suzuki which was occupied by accused Saleem Ahmed. On opening the bags these were found containing heroin powder. On weighment the bags were found containing one kilogram of heroin powder total weighing two kilograms, out of these two bags, two samples from each bag were secured each weighing 5 grams total weighing 20 grams. On the personal search of the accused Iftikhar Ahmed from the pocket of pantaloon Rs.200, one driving licence in his name were secured. On the search of co-accused Saleem Ahmed Rs.100 each of 10 rupees Pakistan Currency ten in number were secured. The Mashirnama of the recovery of heroin powder was prepared on the spot. I see Exh.6 and say it is same, correct, bears my signatures as well as of the Mashirs Muhammad Sharif and Muhammad Wakil. The case property as well as the samples were seized and sealed on the spot and the signatures of the Mashirs were obtained thereon. Exh.6 was also read over to the Mashirs. The accused present in the Court are the same. Case property in the Court is the same'. In the cross-examination the witness stated that `I do not remember exact fare of the taxi paid by us but it was between Rs.10 to Rs.15 for one taxi. The fare charges were paid by F.I.O. Ghulam Muhammad in my presence. It was further stated by the witness `that F.I.O. Ghulam Muhammad Sheikh had settled with private car owners. I was standing beside him while he negotiated. The car driven by P.W. Muhammad Sharif was occupied by me. One constable and P.W. Ghulam Muhammad Shaikh. The spy information was received in office by Ghulam Muhammad Shaikh at about 12 p.m. About the trafficking of the narcotics. It was further stated that on interrogation accused Iftikhar took out a packet of heroin powder underneath his seat which was occupied by him. Co-accused Saleem Ahmad Khan was asked to get out of the car, accordingly he got down. On further search of the car another bag was secured underneath the front seat occupied by Saleem Ahmad Khan. Samples were also weighed on the spot. P.W. Ghulam Muhammad Shaikh had separated three samples. It was asserted by the witness that signatures of the Mashirs were also obtained on the spot. We took Suzuki car to Defence Police Station. It was driven by me. One or two constables occupied the Suzuki while I drove it. The accused occupied the car driven by P.W. Sharif.
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10. P.W.3 (Ghulam Muhammad Shaikh, F.I.O., P.H.C.B.) deposed at the trial that on 20-2-1987 he was posted at Police Station Housing Society, P.N.C.B. And had received spy information at, his office that one Suzuki car of white colour bearing No.221-533 would be occupied by two persons and they would at any time pass the Tool Plaza, Karachi alongwith huge quantity of narcotics. A raiding party including P.W. Muhammad Khan, F.I.O. And a police party was arranged. They reached Teen Hatti and acquired two private cars which were driven by P.W. Muhammad Sharif and Muhammad Wakil. At about 5-00 p.m. The raiding party reached Tool Plaza Super Highway. The suspected car was waited for. At about 9-00 p.m. Suzuki car was seen from Karachi side. The driver of the Suzuki car despite the signal did not stop and tried to run away. But it was taken into circle and was stopped. The driver of the car accused Iftikhar was interrogated about heroin. Thereupon from underneath the driver seat accused Iftikhar took out one bag of Khakey colour paper. On opening it was found containing heroin powder. Co-accused Saleem on interrogation showed ignorance. On further search of the car on the front seat alongwith the driving seat underneath another bag was secured. On weighment both the bags were found containing one kilogram of heroin powder total two kilograms. In the presence of Mashirs Muhammad Sharif and Muhammad Wakil the bags were opened and- contents verified. Thereafter he (witness) had drawn samples from each bag of five grams each total weighing 20 grams for the purpose of sending the same to the Chemical Examiner. Later all the samples and case property were sealed and seized at the spot. The car was taken into custody, the accused were arrested in the presence of Mashirs. He prepared Mashirnama of recovery of heroin powder on the spot. The Mashirnama Exh.6 was affirmed in Court by the witnesses. After formalities, the accused, case property and confiscated car was brought to Police Station Defence Society and report was lodged (F.I.R. Exh.12). The witness sent the samples to Custom Department (Custom House), Karachi as well as to National Institute of Health, Islamabad for examination. Report-, Exhs.13 and 14 received in positive were produced. Two packets Articles A and B were produced in Court. In cross-examination the witness stated that the raiding party consisted of 8 or 10 persons and had left police station between 3 and 3-30 p.m. And reached Teen Hatti in about 30 to 45 minutes where two private cars were rented for Rs.200 per day. The cars were driven by Muhammad Sharif and Muhammad Wakil. The Government Jeep was not used. P.W. Sharif was plying white Toyota Car of model 1975. The car driven by P.W. Sharif was occupied by him and few other members of his staff while the other car was occupied by Muhammad Khan and other staff. It took about 40 to 45 minutes to reach Super Highway from Teen Hatti. P.W. Muhammad Khan was in the car driven by Muhammad Wakil. The samples were separated from the bags by the witness. They returned to police station at 11 p.m. One police constable had driven Suzuki car when it was removed from the spot to police station. The accused occupied the car driven by Sharif when they were removed to police station from the place of seizure of the narcotics. P.W. Muhammad Khan was in the other car. The samples were weighed on the spot by the witness. 11. Before I enter upon the assessm ent of the evidence, it is necessary to examine the submission of the learned A.A.-G. That P.W.1 (Muhammad Sharif) be treated as hostile and his evidence should be brushed aside. I must confess that it has not impressed me as it has no force. The prosecution has not been able to impeach the credit of P.W. Muhammad Sharif. He was not declared hostile by the prosecutor when he said in the examination-in-chief that on search two bags of powder were recovered from the back seat of the car. Bags were lying hidden behind the back seat and that Mashirnama was prepared at Decence Police Station, P.N.C.B. And that the driving licence was not recovered in his presence from accused Iftikhar Ahmad. This had completely shattered the case of the prosecution contained in the recovery memo and later affirmed by P.W.2 and P.W.3. No hostility or adverseness was displaced by P.W. Muhammad Sharif nor any noted by the trial Court. The prosecution must lay a foundation before a witness is characterised as hostile or adverse. A
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witness is not necessarily hostile because he lets out the truth. It must be shown that the statement he has made is due to enmity to the prosecution. 1n the absence of any such allegation the prosecution is not entitled to impeach the credit of his own witness. It would, therefore, be not just to say that the defence can take no advantage from any part of his evidence. When a witness makes a statement adversely affecting the property producing him, it assumes great importance and may be treated by the Court as an admission on the part of the party itself. The evidence of Muhammad Sharif must be taken into account and assessed like any other evidence for whatever it is worth. This witness stated in the cross-examination that accused did not show or took out heroin from the car. His signature on Mashirnama was taken on the next day at police station as he was directed to come at police station on the next day. Heroin was weighed at the police station. Samples were also taken from the heroin packets at police station and that his signatures were not taken on the sample. The statement of Muhammad Sharif thus has demolished the entire prosecution case. The trial Court did not allow the defence to put the question if signature from any of the person was taken on the sample in his presence. This has certainly prejudiced the right of cross-examination by the defence. The prosecution did not produce the other attesting witness of the recovery memo. (Muhammad Wakil). Adverse inference thus can be raised against the prosecution. It not infrequently happens that a witness who is called by one party can give important information on other matters which go to support the other party's case. It is no doubt dramatic in proving one's own case from the mouth of the witness of the opponent and such opportunity should not be allowed to go unutilized. The object of cross-examination, inter alia, is to bring out facts which go to demolish or impeach the trustworthiness of the case of the opponent. Cross-examination is one means which is usually adopted to show that the evidence of the other party is false i.e. By showing that the witnesses differ from one another in their account of the transaction, therefore, the cross- examiner tries to create such discrepancies by questioning the witnesses on the same points. It is possible where two witnesses materially differ in their account of the same transaction, one of them may be talking the truth. It is, therefore, the duty of the Court to decide which version to accept and which to reject but in criminal cases the Court would look upon both versions with suspicion. There is thus a doubt whether P.W. Sharif was an eye-witness at all. It is not possible to believe that a taxi which is detained for more than eight hours and covers the distance as stated by P.Ws. Would accept the petty amount of Rs.10 to 15 as stated by P.W.2. It is possible as urged by Mr. Azizullah Shaikh that Mashir Sharif being a taxi driver in order to oblige the Narcotic police signed the Mashirnama at police station next day of the alleged occurrence when he was called at police station. The other private Taxi Wala was intentionally dropped because the alleged recovery was close private affair of the Narcotic Board Staff. In my opinion that constituted a weakness in the prosecution case to which full weight must be given in the application of the rule of reasonable doubt. It must necessarily affect the appreciation of the evidence of the remaining witnesses. The evidence of the remaining prosecution witnesses if examined closely suffers from serious contradiction on material facts. P.W.3 has disclosed that the Taxi walas were to be paid Rs.200 but P.W.2 stated at the trial that it was between Rs.10 to Rs.15 for one taxi and the charges were paid by F.I.O. Ghulam Muhammad in his presence. The place wherefrom the private cars (taxies) were obtained is differently stated by P.W.3 and P.W.2. P.W.3 (Ghulam Muhammad) stated at the trial that the taxies were hired from Teen Hatti but P.W.2 (Muhammad Khan) belies him and said that we had gone from police station to Teen Hatti in two taxies. After the recovery of the contraband, the story is described by these two witnesses differently. P.W. Muhammad Khan categorically said at the trial that the Suzuki car was taken to the police station and it was he who had driven it, the accused occupied the car driven by P.W. Sharif, while Ghulam Muhammad Shaikh stated that one
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police constable had driven Suzuki car when it was removed from spot to police station. From which place the Suzuki car and the recovery was made is also differently stated by the P.Ws. P.W.1 Muhammad Sharif is clear on this point when he deposed at the trial that it was from the back seat of the Suzuki car but the prosecution case as narrated by P.W.2 and P.W.3 is that the recovery was effected from the front seat of the Suzuki. It is the prosecution case as contained in the…
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