2007 P Cr.

L J 462

[Karachi]

Before Muhammad Moosa K. Leghari and Maqbool Baqar, JJ

DESSER MAL----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.213 of 2003, decided on 2nd November, 2006.

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Appreciation of evidence---Accused allegedly was arrested by Rangers on account

of his enmity with a Ranger's Inspector, from whom accused got a house vacated on account of
ill 'repute of said Inspector---Such fact had created doubt regarding veracity of prosecution
story---Opium allegedly recovered during the raid, was not sealed in any basket, but was lying
open on a table---Prosecution claimed that two separate samples weighing 500 grams each were
sent to Chemical Examiner, but Chemical Examiner's report had revealed that weight of said two
samples was 355 grams and 360 grams respectively---Samples of narcotics were sent to
Chemical Examiner after a delay of five days, which delay had not been explained by
prosecution---F.I.R. was not recorded at the time it was claimed by prosecution---Prosecution
having failed to prove its case against accused beyond reasonable doubt, impugned conviction
and sentence awarded by the Trial Court against accused, was set aside.

Syed Madad Ally Shah for Appellant.

Muhammad Iqbal Kalhoro, Special Public Prosecutor for the State.

Dates of hearing: 1st and 2nd November, 2006.

JUDGMENT

MAQBOOL BAQAR, J.--- The present appeal has been filed against the judgment dated 30-12-
2003, passed by Special Judge, Narcotics, Mirpurkhas, in Special Case No.17 of 2001, whereby
the learned Judge convicted the appellant under section 9(c) of Control of Narcotic Substances
Act, 1997, to suffer rigorous imprisonment for a period of ten years and to pay a fine of
Rs.50,000 or suffer rigorous imprisonment for six months more.

The brief facts of the prosecution case are that on 20-3-2000, complainant Inspector, Incharge
Police Station A.N.F., Hyderabad, Abid Zulfiqar lodged a report at Police Station A.N.F.,
Hyderabad, that on spy information, that the appellant is selling and supplying narcotics from his
Otaque in New Chhore and will be supplying huge quantity of narcotics, the complainant, along
with Major Abdul Hameed, Assistant Director Manzoor Ali Rana, Hawaldar Mehmood,
Constable Waris Ali Dogar, who came from Karachi, and P.C. Manzoor Ali, P.C. Muneer Ahmed,
P.C. Imtiaz Ali, orderly Muhammad Aslam and driver Ghulam Mustafa, proceeded to New
Chhore where they were joined by Colonel Khalid, D.S.R. Asif Majeed and other Rangers staff,
from where, the above A.N.F. team, under the subordination of Colonel Khalid, reached the
house/Otaque of the appellant at 6-00 a.m., and apprehended the appellant, as he come out of his
Otaque, carrying a basket in his hand. The basket held by the appellant contained two packets of
opium, wrapped in plastic Theli, one envelope containing chemical liquor, one bottle of whisky,
two scales and three weights. The opium was weighed to be six kilograms, 500 grams opium was
taken from each packet and was sealed and the remaining opium was sealed separately.. The
other items were also sealed separately and Mashirnama was prepared in presence of Mashirs
P.C. Manzoor Ali and Driver Ghulam Mustafa. The appellant along with the seized property was
taken to Police Station A.N.F. where complainant lodged the F.I.R.
On 29-8-2000, charge was framed against the appellant, however, he pleaded not guilty and
claimed trial.

In support of their case the prosecution examined P.W.1, Inspector, Abid Zulfiqar, who produced
Roznamcha Entry No.8, Mashirnama of arrest and recovery, the F.I.R. and Roznamcha Entry
No.2. The prosecution also examined P.W.2 constable Manzoor Ali and P.W.3 S.I.P.
Naeemuddin, who produced the Chemical Examiner's report. In his statement under section 342,
Cr.P.C., the appellant denied the allegation and pleaded innocence. The appellant examined
himself on oath and also examined witnesses Haji Gul Hasan and Lajpat in his defence.

The trial Court convicted the appellant in terms of the impugned judgment. Hence this appeal.

The learned counsel for the appellant submitted that the appellant is innocent and the prosecution
story is a sheer concoction. He submitted that neither was appellant arrested by the complainant
or by any personnel of A.N.F. nor did A.N.F. conducted the raid or made any recovery from the
appellant as alleged or otherwise. He submitted that the fact of the matter is that it was only the
Rangers who came to the appellant's house and arrested him and it was not the appellant alone
who was arrested by the Rangers, but along .with the appellant, the Rangers also arrested his
brothers, two sons and a nephew. He submitted that the Rangers in New Chhore bore grudge
against the appellant as he got a rented house in his neighbourhood vacated from a Rangers
Inspector Hakim Ali, due to Hakim's notoriety and there has been a exchange of hot words
between the two and thus the appellant was arrested by the Rangers, and taken to Rangers
Headquarters at New Chhore and was thereafter taken to Hyderabad and handed over to A.N.F.
at G.R. Colony, Hyderabad for falsely implicating in the present case. He submitted that there
was no reason and/or justification of the involvement of the Rangers in the raid as A.N.F. is a
well equipped and independent force. He further submitted that as per the prosecution story,
neither was the appellant armed nor were any arms or ammunition recovered from his
possession. It is also not alleged that there was any apprehension of any retaliation from the
appellant who allegedly was alone at the time of the alleged raid and arrest and therefore, there
was no necessity of the Ranger personnel accompanying the raiding. party, which by itself
consisted of eleven (11.) A.N.F. personnel including three officers. The learned counsel
submitted that the falsity of the prosecution case is also evident from the fact that although the
F.I.R. is shown to have been registered in Hyderabad at 11-00 a.m., however, as can be seen from
the evidence of the appellant, and the two Press Reporters, namely, Haji Gul Hasan and Lajpat,
of Daily "Ibrat" and "Kawish" respectively, the appellant along with five others was produced by
Colonel Khalid during a Press Conference held by him on 21-3-2000 at 11-30 a.m. or 12-00
noon, in the Rangers Headquarters at New Chhore, whereas the distance between New C41tore
and Hyderabad is not less than three hours and therefore, it was not possible for the complainant
to lodge the F.I.R. at the A.N.F. Police Station in Hyderabad at 11-00 a.m. as claimed by the
prosecution. He further submitted that though, according to the prosecution, A.N.F. party had
proceeded from Hyderabad to arrest the appellant, on a spy information that the appellant is
engaged in selling and supplying narcotics and will be supplying a huge quantity of narcotics,
and was not only joined by the Rangers but was also accompanied by senior officials' and staff of
A.N.F. who had come from Karachi for carrying out the alleged raid, but they did not arrange for
any independent/private Mashir and though the area where the appellant lives and was allegedly
apprehended from is thickly populated and several persons of the area had gathered at the time of
the raid, however, no private person was associated with the recovery or arrest of the appellant.
He further submitted that it is unbelievable that a person involved in narcotics business would set
out from his house carrying narcotics at 6-30 in the morning. The learned counsel pointed out
that contrary to the prosecution's claim that two packets containing 500 grams of opium were
sent for chemical analysis, the Chemical Examiner's report shows that the sample sent to the
Laboratory, weighed 355 and 360 grams only. He also pointed out that the purported samples
were allegedly sent to the Chemical Examiner on 25-3-2000 i.e. after a delay of five days and
there is no explanation for such delay.

On the other hand, Mr. Muhammad Iqbal Kalhoro, Special Prosecutor, A.N.F. submitted that all
the three prosecution witnesses are consistent on the point of recovery and arrest and the defence
has failed to shatter their evidence through cross-examination and further that the Chemical
Examination Report has verified the fact that the contrabands recovered from the appellant were
opium and Ethyl Alcohol and thus, the prosecution has proved its case against the appellant
without any reasonable doubt. He played for upholding the conviction and for dismissal of the
appeal.
Heard learned counsel and perused the record of the case with their assistance.

According to the prosecution, the complainant Abid Zulfiqar, Incharge A.N.F., Hyderabad, upon
receiving spy information that the appellant was engaged in selling narcotics and will be
supplying a huge quantity of narcotics, along with his staff, and another A.N.F. party, comprising
of Major Abdul Hameed and Assistant Director, Manzoor Ali and their staff, who had come from
Karachi, proceeded from Hyderabad to New Chhore, Umerkot, to apprehend the appellant. They
first went to the Rangers Headquarters at New Chhore from where, under the supervision of
Colonel Khalid, and Deputy Superintendent Rangers, Asif Majeed, they went to the
house/Otaque of the appellant, and apprehended him at 6-30 in the morning and made the alleged
recovery, returned back to Police Station A.N.F. Hyderabad and lodged the F.I.R. However,
during his cross-examination the complainant admitted that after the recovery and arrest he took
the appellant to the Rangers Headquarters at New Chhore and then proceeded to Hyderabad.
Whereas the statement of the appellant and his two witnesses, that Colonel Khalid of Rangers,
called a press conference at the Rangers Headquarters, at New Chhore and presented the
appellant and five others as his accomplices, and disclosed their arrest and recovery of narcotics
from them, before local press remained unrebutted.

In the first place, keeping in view the fact that A.N.F., is a well-trained and well-equipped Force,
specially constituted, under the Anti-Narcotics Force Act, 1997 and is headed by a Director-
General, with all the powers of an Inspector-General of Police under the Police Act, it is rather
intriguing to note that, an A.N.F. team comprising of eleven personnel, including three officers,
sought help from Rangers in arresting a single person. The overwhelming involvement of
Rangers, and specially in view of the testimony of the appellant that he was in fact arrested by
the Rangers, on account of his enmity with a Rangers.

Inspector, Hakam Ali, from whom the appellant got a house vacated in the latter's
neighbourhood, on account of his ill repute, creates doubt regarding the veracity of the
prosecution story. The prosecution case is further vitiated by the fact that contrary to their claim;
the statement of the appellant recorded during his examination-in-chief, that he along with five
others, including his two sons, Shanker .and Mukesh, brother Neemraj and nephew Ratan Lal
was in fact arrested by Rangers, has gone unrebutted; and so also the statement of the two press
reporters, who had attended the press conference called by Colonel Khalid, to the effect that
during the press conference five other persons, who can be seen in the photographs taken by one
of them, and published in newspapers "Ibrat", "Tameer-e-Sindh" and "Kawish", Exhs.17-A, 17-B
and 17-C respectively, were presented before the press, along with the appellant as his
accomplice arrested during the raid, were also not rebutted by the prosecution. The statement of
the said two defence witnesses, that the opium allegedly recovered during the raid was not sealed
in any basket, but was lying open on a table has also gone unrebutted. Although the prosecution
claims that two separate samples weighing 500 grams each were sent to the Chemical Examiner,
however, the Chemical Examiner's report reveals that the weight of said two samples was 355
grams, and 360 grams respectively. The samples of the narcotics were sent to the Chemical
Examiner on 25-3-2000 i.e. after a delay of live days which delay has also not been explained by
the prosecution.

The F.I.R. is shown to have been registered in Hyderabad at 11-00 a.m. on 20-3-2000, and as can
be seen from the evidence of prosecution witnesses, New Chhore is at a distance of about 3 and
half hours drive from Hyderabad, however, according to the two defence witnesses the press
conference was held by Colonel Khalid at Rangers Headquarters in New Chhore at 11-00 a.m. or
11-30 a.m. and that the reporters remained there for about one hour, which facts were not
rebutted by the prosecution during the cross-examination of the said two witnesses, and
therefore, it is evident that the F.I.R. was not recorded at 11-00 a.m. as wrongly claimed by the
prosecution.

It was in view of the foregoing that we found that the prosecution has failed to .prove its case
against the appellant without reasonable doubt and allowed the appeal, and set aside the
impugned conviction by short order, dated 2-11-2006.

H.B.T./D-1/K Appeal allowed.