P L D 2006 Peshawar 128

Before TariqPervez Khan, C.J. and Raj Muhammad Khan, J

Mst. ZUBAIDA SADRUDDIN—Appellant

Versus

THE STATE—Respondent.

Criminal Appeal No.882 of 2005, decided on 25th April, 2006.

Control of Narcotic Substances Act (XXV of1997)—

—-S. 9(c)—Appreciation of evidence—Not a singlewitness had stated that at any stage of investigation, accused was asked, ifshe was the owner of suit-case in question from which heroin was recovered—Noevidence was led by the prosecution to prove that any thing in the shape ofdocument or any other article was recovered form the suit-case containingheroin to connect same with its ownership or possession qua accused—Someinter-connecting article had to be there to prove that the suit-case inquestion was either owned or possessed by the accused—None of the prosecutionwitnesses had uttered single word that suit-case in question was carried byaccused or was taken out of the car on her direction by the Porter/prosecutionwitness and said witness had not charged accused in his examination-in-chiefnor he had identified accused in regular test identification parade which wasnot held—No nexus of accused was found with the suit-case containing heroin—Merenon-explanation about her presence, would not absolve prosecution from its dutyof proving that narcotics recovered were owned, controlled or possessed by theaccused—Present was an example case of total incompetence on part ofinvestigating agencies and because of their incompetence, it could not be heldthat they had proved charge against accused—Conviction and sentence recordedagainst accused by the Trial Court were set aside, accused was acquitted of thecharge against her and was released accordingly.

Mian Mohibullah Kakakhel for Appellant.

Tariq Khan Kakar for the State.

Date of hearing: 25th April, 2006.

JUDGMENT

TARIQ PARVEZ KHAN, C.J:—Mst. ZaubaidaSadruddin is accused of carrying a suitcase which was found to contain 37 Kgs. of heroin.

2. Facts, as appears from the record, are that on31-5-2004 at 0510 hours telephonic information was conveyed to Police StationAnti-Narcotics Force by Subedar Muhammad Rasheed from Anti-Narcotics ForceStaff, posted at the Airport that Company Commander of Airport Security Force including Taj Ali, etc. have held up a lady, who was to board a flight through Qatar Airways for Doha.

That during the briefing, when the suitcase was put screening machine by Muhammad Hanif, A.S.I., Airport Security Force, the machine could not clear it, therefore, the lady was asked her name which was disclosed as Mst. Zubaida Sadruddin. She was asked about the key of the suitcase but she could not produce it, therefore, the lock of the suitcase was broken.

Nineteen packets of heroin were recovered from the suitcase; the total weight of the heroin came to 37 Kgs.

Samples of heroin weighing one gram each from each packet were separated and sent to the chemical examiner, report whereof isExh.PW-8/4, which is in positive.

3. After completion of the investigation, her case was sent up for trial before the Court of learned Special Judge (CNS) at Peshawarwho vide judgment dated 16-12-2005 found her guilty under section 9(c) CNSA and has awarded a sentence of life imprisonment to the appellant with a fine ofRs.5,00,000 and in default of payment of such fine to further five years’ R.Iwith benefit of section 382-B, Cr. P.C.

4. To prove the charge, the prosecution examined in all nine witnesses. P.W. is Muhammad Mohsin, who is a Travel Agent and from whom one Taj, Ali purchased the ticket in the name of the present appellant. PW-2 is Siraj, Porter, Peshawar Airport, who has stated that he is alleged to have carried the suitcase containing heroin from a white color motor car and put it on the converter belt where the same was suspected. PW-3 is Fida Ullah, Moharrir of Police Station Anti-Narcotics Force, who on receipt of Eurasia has incorporated its contents into F.I.R. No.16 which is exhibited as Ex.PW-3/1.PW-4 is Samin Jan, Inspector, who has submitted the complete Challan.

The main evidence of the prosecution would commence from the statements of Muhammad Hanif (P.W.S) A.S.I., Airport Security Force, TajAll (P.W.6) A.S.O. Airport Security Force, Subedar Muhammad Rashid (P.W.7) ofAnit-Narcotics Force and Nasir Iqbal Khan (P.W.8) Inspector, Anti-NarcoticsForce, who has conducted the investigation followed by Abdul Wahab (P.W.9), FC, Anti-Narcotics Force, who is witness to the recovery memo.

5. Thereafter Mst. Zubaida Sadruddin, the appellant, was examined under section 342, Cr.P.C. Her stance is complete denial.

6. No doubt that huge quantity of narcotics, that too, in the shape of heroin is subject-matter of this case i.e. 37 Kgs. heroin but it is not the number of narcotics but the quality of evidence which has to be assessed by the Courts.

7. It is always the duty of the prosecution to prove the charge against the appellant and in narcotics cases to prove its possession.

8. We have gone through the entire evidence with the help of learned counsel for the appellant and learned counsel appearing for the Anti-Narcotics Force.

9. It is consistently argued by learned counsel for the appellant that the prosecution has failed to connect the appellant with the suitcase and in absence of connecting evidence she cannot be convicted for possession of heroin.

10. Learned counsel appearing for Anti-Narcotics Force argued that witnesses from two different agencies i.e. Airport Security Force and Anti-Narcotics Force have consistently charged the appellant to be accused of the offense and that keeping in view the huge quantity of heroin recovered; there is no question of the false plantation.

He heavily relied on the statement of Siraj P.W.2, who is Porter at Peshawar Airport and who has taken the suitcase from the luggage boot of a white car and then to the belt where Muhammad Hanif P.W.5, who was operating the screening machine, suspected the contents of the suitcase. His argument is that through the statement of Siraj P.W.2, the lady accused stands connected with the luggage.

11. Not in this case but in a number of other cases this Court has observed that Investigatingagencies, be it Police, Anti-Narcotics Force, Customs Department or the AirportSecurity Force, etc. have generally failed to properly investigate the cases, either because of their incompetence or because of lack of training or for any other reason.

12. In the present case, not a single witness has stated that at any stage of the investigationappellant was asked if she was the owner of I the suitcase in question.

Siraj (P.W.2) whois the Porter, has stated that he has taken the suitcase from a white motor cardriven by someone who actually called him to take out the luggage and that in the meanwhile, a lady also alighted from the car, directed him to follow. In this entire examination?-in-chief he repeats that “a lady” but with no accusation against the appellant nor any reference to her identity.

13. InvestigatingAgency was bound to have arranged test identification parade through this witness if the appellant facing trial was the same lady who alighted from the car from which the suitcase in question was taken out and if it was the same lady, who directed P.W.2 to take the luggage what to say saying “her luggage”.

14. It is in the evidence of prosecution witnesses that after the suitcase was suspected as it could not be cleared by the screening machine and after the appellant was asked to provide the key to open the suitcase but she could not produce and she made twice telephone call as on her mobile phone which mobile phone was taken into possession by Airport Security Force, later on, given to the Anti-NarcoticsForce, but neither of the two Agencies bothered to get the SIM Card/call record to find out if the mobile allegedly recovered from her was used and if so at what time and to which person to corroborate her connection with any narcotics smugglers, so to prove the prosecution versions.

15. Even otherwise evidence is led by the prosecution to prove that anything in the shape of a document or any other article was recovered from the suitcase which contained heroin with its ownership or possession qua appellant. There should have been some inter-connecting article to prove that the suitcase in question was either owned or possessed by the appellant i.e. in the shape of the key of the suitcase.

16. Because none of the prosecution witnesses has uttered a single word that the suitcase in question was carried by her or was taken out of the car on her direction by Siraj(P.W.2) and when P.W.2 has not charged her in his examination-in-chief nor he has identified the lady in regular test identification parade which was not held, we find no nexus of the appellant with the suitcase containing heroin.

17. One question is, however, raised by learned counsel for the Anti-Narcotics Force as to why the appellant, who belongs to Hyderabad (Sindh), has chosen Peshawar Airport for her departure to Khartoum.

18. Menon-explanation about her presence, would not absolve the prosecution from the charge of proving that narcotics recovered’ were owned, controlled, or possessed by the present appellant.

19. It is an example case of total incompetence on part of the Investigating Agencies and because of their incompetence; we cannot hold that they have proved the charge against the appellant.

20. The result of the above discussion is that we allow this appeal. The conviction and sentence of the appellant recorded by the learned trial Judge are set aside and she is acquitted of the charge. She is set free forthwith, if not required in any other case. All case property other than those claimed by the appellant tobe her personal belonging stands confiscated to State.

H.B.T./76/P???????????????????????????????????????????????????????????????????????????????????????? Appealallowed.