IN
THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Special Crl.
Appeal No.D-15 of 2020
Special Crl. Jail Appeal No.D-16 of 2020
Present:
Mr. Yousuf Ali Sayeed, J
Mr.
Zulfiqar Ali Sangi, J
Appellants: Ali
Dost son of Fazal Muhammad by caste Jattak/Brohi and Shah Murad son of Juma
Khan by caste Abbaki/Brohi through Mr. Nisar Ahmed Bhambhro, advocate.
The State: Through
Mr. Mohsin Ali Khan, Special Prosecutor ANF Sukkur
Date of hearing: 16.11.2023.
Date of decision: 21.12.2023.
J U D G M E N T
Zulfiqar
Ali Sangi, J.– The
appellants named above have filed aforementioned Criminal Appeals, whereby they
have impugned the judgment dated 30.01.2020 passed by 1st Additional
Sessions Judge/Special Judge Narcotics (MCTC) Sukkur, in Special Case No. 101/2019
(Re. The State vs. Ali Dost and others) arising out of Crime No. 07/2019 offence
u/s 9 (c) CNS Act, 1997 registered at PS ANF Sukkur, whereby they were convicted
and sentenced to suffer imprisonment for life and to pay fine of Rs.100,000/-
each and in default thereof to suffer S.I for one year. The benefit of 382-B
Cr.P.C was extended to them.
2. Precisely, the facts of the case are that
on 20.04.2019 at 1800 hours, SI Arif Lodhi lodged FIR at PS ANF Sukkur,
alleging therein that on the same day he was available at PS, when a spy
informer came at PS and narrated to his high-ups that inter provincial Narcotics
smugglers namely Ali Dost and Shah Murad coming in a car bearing registration
No. AFG-686 of white color, Toyota from Quetta to supply the huge quantity of
narcotics at Sukkur. On receiving such information and on directions of
high-ups a raiding party was constituted including complainant/S.I Arif Lodhi,
ASI Mudasir, PC Azeem and other ANF staff along with drivers as well as spy
informer under supervision of Inspector Zahid Ali Channa being armed with
weapons left PS vide roznamcha entry No. 11, at 1300 hours in official vehicle and
reached near Dilshad hotel opposite Sukkur City Housing Scheme at
Shikarpur-Sukkur road where they conducted Nakabandi, it was about 1500 hours,
the aforesaid vehicle No. AFG-686 of white color came from Shikarpur side in
which two persons were boarded, who were pointed out by the spy informer to be
the same, ANF official stop the said car, both the persons sitting on front
seats of the vehicle were apprehended with the help of staff and due to non-availability
of private persons, complainant/SI Arif Lodhi appointed ASI Mudasir and PC
Azeem as mashirs. The person sitting on the driving seat was enquired about his
name and address whereupon, he disclosed his name to be Ali Dost son of Fazal
Muhammad r/o Village Faiz Muhammad Jatak Bedar, Inner PO Dera Murad Jamali,
District Naseerabad, whereas other person disclosed his name to be Shah Murad
son of Juma Khan r/o Ward No. 7 Mohalla Lehri, Dera Murad Jamli, District
Naseerabad. Then, both the accused were inquired about the contraband substance,
whereupon they after avoiding disclosed the availability of narcotic viz. 40
packets of chars which were concealed in all four doors of the said car. In
presence of mashirs, the accused Ali Dost go ahead and opened both internal
cover of front doors with tools and took out 10/10 total 20 packets and handed
over to complainant, whereas accused Shah Murad opened the internal cover of
both back doors of vehicle with tools and took out 10/10 packets total 20
packets and handed over to complainant. The each recovered packet was checked and
found containing pukhta chars in shape of double slab. Each recovered slab was
weighed with the electronic scale which became 500 grams, each packet
containing 1000 grams chars. All the recovered packets were sealed in a white plastic
tora for Chemical analysis and sealed with AL/ANF seal. On further search, a
registration book, color copy of CNIC in the name of Muhammad Razaque and
insurance documents of car were secured. From body search of the accused Ali
Dost cash of Rs.1000/- a mobile phone along with SIM and CNIC were recovered. From
body search of the accused Shah Murad cash of Rs.400/- a mobile phone along
with SIM and CNIC were secured. All the recovered properties were sealed at
spot, such memo of arrest and recovery was prepared with the signatures of
above named mashirs. Thereafter, accused and recovered properties were brought
at PS, where instant FIR was lodged against the accused as stated above.
3. During
investigation 161 Cr.P.C. statements of the PWs were recorded, samples were
sent to the chemical examiner for report through PC Manshir Ahmed. Positive
report of the chemical examiner was received. On the conclusion of usual
investigation, challan was submitted against the appellants/accused u/s 9 (c)
of CNS Act, 1997.
4. After
completing legal formalities, the trial Court framed charge against appellants/accused
to which they pleaded not guilty and claimed to be tried.
5. At the trial, prosecution
examined PW-1 S-I Arif Lodhi complainant/IO/incharge Malkhana, PW-2 Mudasir Ali
Khan Mashir, PW-3 Manshir Ahmed sample bearer. They have produced certain
documents and items in support of their evidence. Thereafter the side of the prosecution was
closed.
6. The appellant were examined under section
342 Cr.P.C, wherein they denied the allegations leveled against them and
pleaded their innocence. After hearing the parties and assessment of the
evidence against the accused, trial Court convicted and sentenced the appellants/accused
as stated above against the said conviction they have preferred the aforementioned
appeals.
7. Learned
counsel for the appellants/accused argued that accused are innocent and have
falsely been implicated in this case by the ANF officials to show their
efficiency; that all the witnesses are ANF officials and they have violated the
mandatory provisions of the Section 103 Cr.PC, that nowhere it is mentioned
either in the memo of arrest and recovery or in FIR about the description of
the chars, that
the evidence adduced by the prosecution at the trial is not properly assessed
and evaluated by the trial Court which is insufficient to warrant conviction
against the appellants/accused; that the trial Court has failed to appreciate
the factual as well as legal aspects of the case while convicting the
appellants/accused; that
there are material contradictions in the evidence of prosecution witnesses with
regard to recovery, sealing and safe custody, but those have
not been taken into consideration by the learned trial Court while passing
impugned judgment; that the judgment passed by the trial Court is preserve and
liable to be set-aside. Lastly, he prayed that the appellants/accused may be
acquitted by extending them the benefit of doubt.
8. Conversely, learned SPP for ANF opposed
the aforementioned appeals on the ground that prosecution has successfully
proved its case against the appellants/accused beyond a reasonable doubt and
all the witnesses including complainant/seizing officer have fully implicated
the appellants/accused in their evidence recorded by the trial Court; that all
the necessary documents including the entries of station diary, the memo of
recovery, FIR, Chemical Examiner’s report etc have been produced; that there
appears no malafide or ill-will to
falsely implicate innocent person (s); that during the cross-examination
counsel had not shaking the evidence of prosecution witnesses; that there are
no major contradictions in the evidence of prosecution witnesses. Lastly, he
submitted that appellants/accused were rightly convicted by the trial Court and
prayed that appeal of appellants/accused may be dismissed.
9. We have heard learned Counsel for the
appellant/accused, learned A.P.G for the State and have examined the record
carefully with their able assistance.
10. On reassessment of the evidence produced by
the prosecution especially of the PW-1 and PW-2 we found that it was not
recorded in accordance with law and found to be copy and paste with some minor
variation/changes. The evidence of these witnesses is very essential to decide
the entire fate of case in respect of guilt of accused or his innocence as both
of them are only the witnesses of recovery and arrest of the accused of the
offence which carries capital punishment. Their examination-in-chief is same
including coma and full stops even the first word and the last word of lines of
the pages. In the evidence of PW-1 (Complainant and the IO) only his evidence
in respect of his investigation was deleted from the chief-examination of PW-2
(Mashir of recovery). We find at some places minor changes in respect of their
names only. When this situation was put to the Special prosecutor for ANF he submits
that he trained the witnesses before recording their evidence and it was result
of that preparation. We cannot proceed on presumption
and assume that everything was identical word to word as result of such
preparation and not inclined to accept the submission of Special Prosecutor
which even otherwise is a remarkable assertion as it cast doubt on whether testimony
of the witnesses was their own or merely dictation received. Non recording of
evidence separately and just copy and paste the examination-in-chief of one
witnesses in the evidence of another witnesses is also an violation of section
353 Cr.P.C, which provides that all the evidence under [Chapters XX, XXI, XXII,
and XXII-A] shall be taken in presence of the accused, or, when his personal
attendance is dispensed with, in presence of his pleader. Further in section 354 Cr.P.C word shall has
been used for recording the evidence of witness in the manners prescribed in
sections 355 and 356 Cr.P.C, herein the present case section 356 Cr.P.C is
applicable which provides that in trials before Courts of Session and inquiries
under chapter XXII the evidence of each witness shall be taken down
in writing in the language of the court by the Magistrate or Sessions
Judge, or in his presence and hearing and under his personal direction and
superintendence and shall be signed by the Magistrate or Session Judge. This
provision also indicates that evidence of each witness be recorded separately
by following other formalities not by copy and paste. The object of these
provisions is to secure as faithful and accurate a record of what each witness
says in court as it is possible to make and that object would be imply served
by the preparation of a record to the dictation in open court by the trial Judge. This court in the case Nakeef Nindwani vs. The State
(2022 P.Cr.L.J Note 10), has observed as under:-
“The entire evidence of
the prosecution witnesses was carefully examined and it is observed that the
trial judge has committed illegality while keeping the evidence of prosecution
witnesses recorded in the main case by way of copy and paste in this case and
only few lines from the examination-in-chief of Muhammad Sharif were deleted.
It is further observed that only change was at the head of the page of the
deposition where only the case number and other particulars were changed by the
trial court otherwise the examination-in-chief and the cross-examination are
same word by word including the commas and full stops. It is settled by now
that this practice of copy from the evidence of main case and
paste it in the evidence of offshoot case is illegal, unlawful and the same may
be stooped. In view of the considering facts and circumstances of the case the
trial courts are directed to record the evidence of each witness separately in
all the separate cases if not amalgamated in accordance with law.”
11. The procedure adopted by the trial court by
not recording evidence of both the witnesses separately and after the recording
of evidence of PW-1 it copied and pasted in the evidence of PW-2 with some
minor changes is also in violation of Article
10-A of the Constitution of Islamic Republic of Pakistan, 1973, which provides
as “For the determination of his civil rights and obligations or in any
criminal charge against him a person shall be entitled to a fair trial and due
process." Under these circumstances
it can be said that the oral evidence of PW-2 that he saw the recovery and
arrest of the appellant had not recorded and the requirement of Article 71 of
the Qanun-e-Shahadat Order, 1984 is violated which provides that “All facts,
except the contents of documents, may be proved by oral evidence.” “If it
refers to a fact, which could be seen, it must be the evidence of a witness who
says he saw it:” When the chief-examination of PW-2 as observed above found to
be a copy and paste of the chief-examination of PW-1 was kept on record then it
can safely be said that there is no evidence of PW-2 that he saw the alleged
recovery and arrest.
12. Thus based
upon the above findings we are of the view that serious prejudice was caused to
the appellants at the time of recording evidence of the above witnesses and
therefore by avoiding to discuss further evidence and the merits of the case
which may prejudice either party deemed it appropriate to set-aside the
impugned judgment dated: 30-01-2020 passed by the court of 1st Additional
Session Judge/Special Judge Narcotics/Model Criminal Trial Court, Sukkur in
Spl. Case No. 101/2019. (The State vs. Ali Dost and others) and remand the case
to the trial court for a limited purpose of re-recording of the evidence of
PW-1 SIP Arif Lodhi and PW-2 Mudasir Ali Khan and thereafter record statement
under section 342 Cr.P.C of the appellants afresh and by providing them an
opportunity of hearing pass a Judgment in accordance with law.
13. The above
Criminal Appeal No.D-15 of 2020 and Criminal Jail Appeal No.D-16 of 2020 are
disposed of in the above terms.
J U D G E
J U D G E
Ihsan/*