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Official Citation: 2024 IHC 188865
Court / Jurisdiction: Islamabad High Court
Parties: Rawaiz Khan vs The State etc
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2024 IHC 188865. In this matter between Rawaiz Khan and The State etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Ms. Justice Saman Rafat Imtiaz) AUTHOR JUDGE: Honourable Ms. Justice Saman Rafat Imtiaz DECISION DATE: 29-MAY-2024 CASE NO: Criminal Appeal-280-2023 CITATION: 2024 IHC 188865 PARTIES: Rawaiz Khan VS The State etc LAW / SECTION: - SUBJECT: Against Conviction (PPC), Upto 7 years REMARKS: Crl Appeal U/s 48 against sentence and conviction, FIR No. 77-2020 dated 10.09.2020 Offence U/s 9-C , 15 CNSA PS ANF, Rawalpindi. ============================================================ 2- Precisely, on 10.09.2020, at about 11.30 a.m., a contingent of ANF officia ls, headed by Insp ector Taqi Abbas (PW- 4 ), including Saparas h Khan (PW-5), Waqas Khan (giv en up PW), int ercepted a public tr ansport vehicle (U-Tong Bus, Master Executive class, registration No. LET-22 39, Blackish colour) at Exit-M 1, Motorway link Road Islamabad, coming from Peshawar side. The appellant Rawaiz Khan found sitt ing on the driver's seat while Irfan (co-accused since acquitted) was recognized as cleaner. On checking of the vehicle, a packet of Chars wrapp ed in white poly_thene e nveloped with insulation tap e covered with ARBAB MUHAMMAD TAHIR, J: Through the listed crim inal appeal under section 48 of the Control of Narcotics Substances Act, 1997 (''Act of 1997''), appellant Rawaiz Khan impugns judgment date d 20.07.2023, passed by the Judge Special Court (CNS), Islamabad , whereby he was convicted under Section 9(C) of the Act of 1997, for traffick ing 1200-gram s Chara~ and sentenced to undergo 04 years and 06 months R.I. with fine of Rs. 50,000/ -, in def ault whereof , to further undergo 06 months S.I. with benefit of section 382-B Cr.P.C., in case F.I.R No.77, date d 10.09 .2020, under Section 9-C and 15 of the Act of 1997, registe red at Police Statio n ANF-RD North, Rawalpindi. Raja Muhammad Shafaat Khan, Advocate. Rana Zulfiqar Ali, Special Prosecutor ANF. 24.01.2024 and 29.05.2024 Appellant By : Stat e By : Date of Hearing: Rawaiz Khan Versus The State Crl. Appeal No.280 of 2023 JUDGMENT SHEET JN THE ISLAMABAD HIGH COURT, ISLAMABAD • JUDICIAL DEPARTMENT • ~ \ '
PW-1 Yasir Naseer SI On 10.09.2020 draft ed formal FIR Ex. PB on the basis of complaint Ex.PA sent by Inspector Taqi Abbas PW-4 through constable Farooq. The witness also testified his signatur es, Ex.PA/1 on the complaint Ex.PA. 3- At the trial, prosecution produced five witnesses i.e. PW-1 Yasir Naseer SI, PW-2 Abdul Razaq HC, PW-3 Jawad Ahm ed Constable, PW-4 Taqi Abbas Inspector and PW-5 Saparash Khan, Constable. The learned SPP ANF had given up PW Waqas Khan Constable and closed prosecution evidence. The report of NIH is Ex-PG. The gist of the prosecution e vidence is as under:- black cloth, lying at the dashboard near windscreen was recovered. PW-4/ Inspector Taql Abbas weighed the contraband along wlth the taping material and found 1200 grams in total . Inspector /PW-4 separat ed 10 grams from the recovered substance, prepared its sealed parcel while the remaining contraband was sealed in separate parcel. PW-4 took Chars EX Pl along with packing material black cloth Ex. P2, vehicle Ex. P3 and its key EX-P4 in his possession throug h recovery memo Ex PC attested by PW-5 Saparash Khan and PW Waqas Khan Constable. The Inspector/PW-4 also took in his possession personal belongings of the appellant and co-accused Irfan, through separa te recovery Memos Ex.PD and Ex.PE, respectively, also att ested b y PW-5 Saparsh Khan Constable and Waqas Khan Constable. PW-4/Inspector after preparing complaint Ex. PA sent the same to the Police Station for the registrat ion of formal FIR which was recorded by PW-1 on the same day, tendered in evidence as Ex. -PB. After the registration of FIR, investigation was conducted and on being found guilty, both, the appellant and co-accused (since acquitt ed), rep ort in terms of Section-173 Cr.P.C was submitted befor e the court of competent jurisdiction for trial in due course. ,, • l • "Cr/. Appeal No 280 OF 2023H 2 •
I 4- After the recording of above prosecution evidence, appellant and co-accused Irfan (since acquitted ) were examined u/ s 342 Cr. P .C wherein they denied the prosecution evidence . The appellant in his statement has tak en the p lea that PWs registered this false case ju st to show effi ciency to their high ups The appellant in reply to question No. 9 admit ted to the extent that he was driver but had taken the stance that no objection able thing was recovered from the vehicle, however, opted not to make his statement on oath under section 340(2) Cr PC or to produce any defence evidence. The learned trial court after hearing the counsel for the app ellant, co-accused and learne d SPP, acquitted co-accused Irfan while convict ed and PW-5 Sapara sh Khan constabl e, h ad been member of raiding party, is the recovery witness, deposed to prove the interception of the vehicle, recovery of contrab and and other proceedings conduct ed at the spot. PW-4 Taqi Abbas Inspector is the complainant as well as investigat ing officer of this case. The witness deposed to prove the details of investigation conducted by him at the spot on 10.09.2020 and thereafter, tender ed in evidence the report of Chemical Examiner NIH, Islamabad, Ex.PG. PW-3 Jawad Ahmed constable on 11.09.2020 collected sample sealed parcel from Abdul Razzaq Moharrar PW-2 and deposited the same in the office of NIH Islamabad on the same day. p_w-2 Abdul Razzag Head Constable had been Moharrar Malkhana at the relevant tim e, deposed to have received case property of thi s case on 10.09.2020 i.e. sealed sample parcel, parcel of remaining chars, articles wherein the contraband was wrapped, personal belongings of the appellant and co-accused, vehicle along with its key. Kept the case property in safe custody in Malkhana a nd on 11.09. 2020 transmitted sample sealed parcel to the office of NIH Islamabad through Constable Jawad Ahmed, PW-3. "C rl. llppeal No. 280 Of 2013" 3 .. •
7- We have heard the learned counsel for the appellant , learned Special Prosecutor ANF and have gone through th e record with their able assistance. 6- On the other hand, learned Special Prosecutor ANF repelled the above submissions by contendin g that the prosecution evidence is firm to establish unbrok en chain of events that is corroborated by the positive report of N .I. H. Further argued that the prosecution evidenc e being of unimpeachable character establishes charge against the appellant who des pite lengthy cross-examination failed to bring on record any material discrepan cy, therefore, impugned judgment does not call for any interf erence. 5- Learned counsel for the appellant argued that there are material contradictions in the stat ements of prosecution witnesses with regar d to the proceedings conducted at the spot and safe transmission of sample sealed p arcels; that under the law, investigation must be conducted by an independent officer, while in the instant case, the complainant himself conducted invest igation and that, too, without permission of the high-ups; that crucial witness, constable Farooq, who was also member of the raiding party and took the complaint to the Police Station for the registratio n of FIR, was neither cited as a witn ess in the relevant list nor produced in the court in order to testify the proceedings conducted at the spot, ther efor e, impugned conviction and sentence recorded by the Trial Court vide impugned judg ment are liable to be set aside. Learned counsel relied upon case law re port ed a s PLO 1997 SC 408, 2021 P.Cr.L.J 1294 , 2022 P.Cr.L.J 1233, PLO 2019 SC 527, 2012 P.Cr.L.J 1151 and 2018 P.Cr.L.J 1476 . sentenced the appellant vlde judgment dated 20.07.2023, being assailed through the instant appeal. "Cr/ Appeal No. 280 OF 2023" 4 . ,;
9- It is established from the evidence, highlighted above that the contraband was lying open at dashboard near wind screen. Neither the contraband was recovered from personal possession of the appellant nor from co-accused, since acquitted. It is further established from the evidence that contraband was also not recovered from any secret cavity of the vehicle and that at the relevant time; around 19 passengers had been onboard. In such eventuality when there is no incriminating material 8- In the present case, narrativ e begins when a conting ent of ANF officials int ercepted a public transport vehicle at Exit-Ml Motorway link Road, Islamabad, being driven by the appellant while co accused, since acquitted, was also pres ent in the said vehicle as a cleaner. As per complaint and recovery memo chars wrapped in polythene envelope with yellow insulation tape, in a black colour cloth, was recovered, ''lying at dashboard near wind screen'' whereas both the witnesses i.e. PW-4 Taqi Abbas Inspector and PW-5 Saparash Khan constable in their examinat ion in chief stated that 01 packet chars wrapped in block cloth was recovered which was lying on the dashboard near the front wind screen.There is no mention in their statements that chars was wrapped in polythene envelope with yellow insulation tape. PW-4, Investigating Officer admitted in cross-examinat ion that recovery effected in present case was neither from personal possession of the accused facing trial, nor from the secret cavity made in the vehicle. The witness also admitted that other passengers were also present in the vehicle from which the accused facing trial was apprehended. PW-5 Saparash constable further elaborated in cross-examinat ion that "around 19 passengers were present in the seized bus at the time of apprehension of the accused facing tr ial besides some vacant seats." "Cr/. Appeal No. 280 OF 2023" 5 '
• • • 16. I t can be seen from the analysis of the jud gment mentioned above that the main reasonin g given for not apply ing the r ule relates to the social conditions prevalent in the country. I t seems that because it was felt by the "Holding that the rul e f alsus in uno, falsus in omni bus is inapplicable in thi s count ry practicall y encourages commission of perj ury which is a serious off ence in this countr y. A court of law cannot permi t somethin g which the law expressly forbids. 10- Under the law, testimony of a witness is to be accepted or discarded in its totality as the principle of 'sifting chaff fr om the grain' has since been evolved and the principl e ''falsus in uno falus in omnibus '' has been made integral part of our crimin al just ice system. The Supreme Court of Pakistan in case reported as (PLO 2019 SC 527) {Notice to Police Constable Khizar Hayat son of Hadait Ullah on account of his false statement : I n the mat ter of Criminal Miscellaneous Application No.200 of 2019 in Crimi nal Appeal No.238-L of 2013, decided on 4th March, 2019 .) • has held that:- investigation, part icularly the passengers, who at the relevant time, were holding front seat. Even other wise, it does not appeal to a pruden t mind that contraband was being tr ansported by placing it open on dashboard near front screen, visible to everyone, instead to conceal the same in any secret cavit y. • 1n but none of them was join ed passengers onboard establishing dir ect nexus of the appellant with the recovered substance and that, too, particularly when disclosur e made by the appellant and co-acc used h ad already been disbelieved by the tria l Court, it would not be safe to hold the appellant guilty for the off ence charged. No other incriminating material was recovered from the appellant which could be made basis to establish h is dir ect link wit h the recovered substance. It is also an admitt ed position that at the relevant time, there were 19 "Cr/. Appeal No. 280 Of 202JH 6 .,.
12- The dictum referred above guides to hold that stateme nt of a wit ness has to be accepted or discarded in its entiret y and not in piecemeal. Under the principle ibid, statement s of both the recovery witnesses i.e. PW-4 Taqi Abbas Inspe ctor and PW-5 Saparash Khan constable are to be read as a whole. Their statements ex plicitly reveal that contraband was not recovered from personal possession of appellant or co accused, since ' acquitted, it was not kept in any secret cavity rather was found - - --- ___._ J ''We may observe in the end that a ju dicial system which permits deliberate f alsehood is doomed to fail and a society which tolerat es it is destined to self -destruct. Truth is the foundation of justice and ju sti ce is the cor e and bedrock of a civilized society and, thus, any compro mise on truth amounts to a compromise on a society 's future as a just, fair and civiliz ed society . Our j udicial system has suffered a lot as a consequence of the above ment ioned permissible deviation from th e truth and it is about time that such a colossal wrong m ay be rectifi ed in all earnestness . Therefore , in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our j urispruden ce in criminal cases and the same shall be given effe ct to, followed and appli ed by all the courts in the count ry in its let ter and spirit. It is also directed that a witness found by a court to have resort ed to a deliberate falsehood on a material aspect shall, wit hout any latitud e, invar iably be proceeded against for committ ing perjur y." 11- The Supreme Court of Pakistan in the judgm ent supra hencefort h made the rule 'falsus in uno, f alsus in omnibus' as an integral part of our jur isprudence in criminal cases in followi ng terms:- superior Courts that generally witn esses testifying in crimi nal cases do not speak th e whole truth and have a tende ncy to exaggerate or economi es with th e real facts, there is a danger of miscarriage of ju stice in the sense that a real culprit may go scot free if a court disbelieves the whole testimony on account of reaching the conclusion that the testimo ny was false in some respect. "Cr/ Appeal No 280 OF 2023" • • 7 • '
• • • .. .. !If • 14- Reliance is also paled upon case of "Muhamm ad Ali v. The State'' (2015 SCMR 137 ), ''Shaban Akht ar and anothe r v. The ''Since the same set of evidence has been disbeli eved qua the involv ement of Muhammad Aslam, as such, the same evidence cannot be relied upon in order to convict the appellant on a capital charge as the statements of both the eyewit nesses do not find any corro boration from any piece of independent evidence .'' 13- Under the circumstances, case of the appellant and co accused, since acquitt ed is at par as no incriminating material was recovered from the possession of both of them, the appellant, being driver of the vehicle, cann ot be held responsible for the recovered substance in the light of evidence on record wher eby it is established that contr aband was lying open at the dashboard, which is commonly used by the passengers holding front seat for laying their luggage, 19 passengers were on board but no one was join ed in investigation. Since the same set of evidence has been disbelieved q ua involvement of co accused, as such, same evidence cannot be relied upon in order to convict the appellant. Reliance is placed upon case of ''Muhamm ad Akram V. The State'' {2012 SCMR 440) wherein it was observed that:- • lying ope n on dashboard .. close to wind screen and that about 19 passengers were on board but none of them were joined in investigation. In presence of these facts, it would not be just to hold the appellant guilty for the offence charged and the observatio n of the trial court contained in paragraph 18 of the judgme nt i.e. ''accused Rawaiz Khan at least cannot escape the liability f or keeping the contr aband concealed in the bus .. " is result of misreading of evidence in its true perspective as the contraband was not concealed rather found lying open on dashboard of the vehicle near wind-screen. "Cr/ Appeal No 280 OF 2023" 8
16- Having examined the case from every angle, we have reached to the conclusion that prosecut ion has failed to establish nexus of the appellant with the recovered contraband , therefore, there left no need to dilate upon rest of incriminat ing mater ial i.e. safe transmission of sample sealed parcel to the office of NIH Islamabad and its positive report as the same only explores kind of substance recovered i.e. 'chars' and in no way connects the appellant with the commission of alleged off ence. Consequently, listed criminal appeal is allowed, convict ion and sentence of th e appellant recorded by the Special Court CNS Islamabad vide impugned judgment dated 20.07 .2023 are set-aside. Th e 15- In order to substantiate the charge, the prosecut ion was under obligation to establish knowledge of th e appellant regarding contraba nd recovered from the vehicle by producing convincing and trustworthy evidence but they failed to do so, for reasons stated above and, therefore, in absence of th e same, it would not be just to hold the a ppellant guilty for the offence charged. The Supreme Court of Pakistan in the case of ''Riaz Mian and another v. The State'' (2014 SCMR 1165), in appeal against conviction and sentence of Life Imprisonment under section 9C of the Act of 1997, entailing recovery of 420-kilogram chars and opium weighing 17-kilogram from a bus, acquitt ed driver, co-driver and conductor of the bus by observing that ''prosecut ion was unab le to point to any piece of incriminating evidence against the driver , co-driver and conductor of the bus to sad dle them with knowledge that they were pr ivy to commission of the subj ect crime." State through Prosecutor General Punjab'' (2021 SCMR 395 ), ''Liaqat Ali and others v. The State and others'' (2021 SCMR 455) and "Muhammad Yasin and another v. The State through P.G. Punja b and others" (2020 SCMR 123 7). "Cr/ Appeal No. 280 Of 2023" 9 ~ . \ ,
APPROVED FOR REPORTING . Luamao l~baa. • JUDGE Announced in open Court on ~CJ .05.2 024. (ARBA.?M UHAMMAD TAHIR) JUDGE 22.02.2024 (SAMAN RAFAT IMij IAZ) JUDGE appellant is acquitted from the charge by extending him the benefit of doubt . The appellant is in jai lwho shall be released forthwith, if not required in any other case. 10 ' "Cr/ Appeal No. 280 OF 202311
(a) The a ppellants before the Supreme ourt in thi asc \\ re co11victccl of' the offence of illegal transport of liquor under . vrticlc 3 of the Prohibi tion (E11 forccment of Hadd) Order, 1979. The bottles of (i) Sc1id S/1a/1 Vs. The Stc1te, PLD 1987 SC 288: 18. The reason for this s eparate note is that whilst there is a plethora of judgments containing discussion in respect of the culpability of the driver, conductor and/or passengers for possession of controlled substances including narcotics found in the secret cavities of a vehicle, judgments where such substances have been recovered from the interior of the vehicle lying in plain view are far and few in between. In the instant case, narcotics were found wrapped in a black cloth lying openly on the dashboard of a public transport vehicle with 19 passengers onboard apart from the Appellant/Driver and the Co-accused/Conductor yet only the latter two were apprehended and only the Appellant/Driver was convicted. Therefore, I consider it important to examine past precedent in order to elicit t he basic principles involved in affixing liability for possession' of controlled substances under Section 6 of the Control of Narcotics S ubstances Act, 1997 (''CNSA'') and to elaborate on how such principles have been applied to reach the conclusion to allow the instant appeal and in particular to highlight what the prosecution was required to do to bring home the charges again ·t the Appellan t/Dri vcr for future purposes. 1 7. I have had the pleasure of reading the juclgmcnt of my learned brother, lr. Justice Arbab Mohammad Tahir, I agree with the conclusion drawn by l1i111 to allow the instant appeal and consequently to set aside the conviction and sentence of the Appellant awarded vide the Impugned Judgment dated 20.07 .2023 passed by the Judge, Special Court (Control of Narcotics Substance), Islamabad. Nevertheless, I {eel the need to write this separate concurring opinion due to the significant legal and factual questions involved. For the sake of brevity, I shall adopt the statement of facts as recorded in the judgment of my learned brother as well as the synopsis of arguments s ubmitted by the learned Jaw officers and counsel contained therein. Cr11111nal 1fp11eal No 280 of lOlJ I J
(a) Heroin was found in the secret cavities of a car with two · occupants including the driver. Both the driver as well as the occupant denied knowledge and awareness of the presence of heroin hidden in the car. The driver contended that the car had been given to him for a job by a third person. It was argued on behalf of the petitioners that they could not be said to have knowledze of the 0 presence of narcotics in the vehicle a nd convicted on that presumption alone and that they have given a plausible explanation and finally that at the most they could be held as carriers for which lenient view ought to be taken, (ii) N adir Khan Vs. The State, 1988 SCMR 1899: • • possession was conscious. • liquor were found packed in wooden crates in a Suzuki ~an bcin.g dri, en by one of the three appellants while another was acting as his c nductor and the third was an occupant. The driver and th e conductor pleaded that although the liquor was found in their vehicle they did not k110\v that the wooden crates contain bottles of liquor as the occupant o wned tl1c111 and had represented that they contain soap \\ hercas the occupant named yet another person as the owner of the liquor. (b) The Supreme Court at the vet)' outset noted that ownership of the intoxicant would not be necessary for proving the offence under Article 3 (Prohibition of manufacture, etc, of intoxicants) and Article 4 (Owning 01· Possessing Intoxicants) of the Prohibition (Enforcement of Hadd) 01·de1·, 1979. Thus the plea that the appellants did not own the liquor would not make any difference. ( c) Another important principle of law enunciated in this judgment is that no hard and fast rule can be laid down as to presumption regarding driver or conductor of a public vehicle and that it would depend upon the c ircumstances of each case as to whether the driver or conductor of a public vehicle is conscious of the contents of the goods he is transporting or carrying as luggage of a passenger. In the said case the Supreme Court dismissed the a ppeals filed by all three convicts and held that since there were concurrent findings of facts that the appellants were aware about the contents of the crates there was no justification for interference with them. Though the judgment does not discuss the basis on which the lower courts held that the driver and conductor were aware about the c ontents of the crates, the takeaway from this judgment is that the prosecution, in order to prove the commission of the offence of possession, is required to prove that ' r I (· 1111t111(1/ 1f111Jeal No 280 of 20} 12
(a) Heroin was found packed in a plastic and cloth envelope recovered Irom the seat of a Suzuki driven by one of th p titian r while the other petitioner was seated in the front along with the driv 1~. (b) The Supreme Court observed that in such cases it was a l1110 t impossible to determine as to \Nl10 the exclusive O\ n r f the narcotics is yet it could not be concluded that 11 ith r of th tv.c petitioners was in possession of the heroin nor that 111)' n ,, as i11 possession '111cl the other had no concern with it and as such it \\ ,1. held that it was i11 their joint possession, The takeaway 11·0111 this cusc therefore is that the prosecution is not rcquir d to pr v " lusix c possession of the narcotics if found openly insid a , hi le o cupicd (iii) Shah Wali Vs. The State, PLD 1993 SC 32: ( c) Interestingly enough it was held that under the circumstances the petitioner' s explanation showing ignorance actually strengthens the conclusion rather than weakening it. Insofar as claiming leniency • on account of being carriers is concerned the court held that confessing accused are dealt with leniently as a confession even if belated assists in the administration of justice but that such leniency cannot be claimed or shown to a person who denies the commission of the offence itself to the end rendering no help to identify the real and major culprits and only resorts to it by way of an alternative argument to rely on. Thus a presumption of knowledge and awareness…
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