2016 PLP 123 (YLRN)

AALIA NEELUM, J.

Muhammad Asjad son of Muhammad Latif, appellant was involved in case FIR No.40 dated 08.8.2011, offence under sections 9(c), 15 of the Control of Narcotic Substances Act, 1997, registered at Police Station ANF, Lahore and was tried by the learned Additional Sessions Judge/Judge, Special Court (Control of Narcotics Substances), Lahore. The learned trial court seized with the matter in terms of judgment dated 22.6.2012 convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo imprisonment for seven years' R.I. with the direction to pay Rs.2,00,000/-as fine and in case of default thereof, further undergo Simple Imprisonment for six months. Benefit of section 382-B was also awarded to the appellant. The appellant has assailed his conviction through filing the instant appeal.

2. The prosecution story as alleged in the FIR (Exh.PA) lodged on the complaint (Exh.P.D) of Azhar Hamesh, S.I. (PW-3) is that on 08.08.2011 the complainant along with Muhammad Safdar, L.N.K Muhammad Hanif and other A.N.F., officials reached at Allama Iqbal International Airport, Lahore after receiving information that huge quantity of Heroin is going to smuggle from Pakistan to Spain through Flight No.EK.623, whereupon they started search of passengers and at about 3.00 a.m. on suspicion accused, namely, Muhammad Asjad, was stopped and on checking two pads containing 4 Kilograms Heroin were recovered from hand bag of the accused, hence this case.

3. Thereafter on the complaint (Exh.P.D) of Azhar Hamesh, S.I. (PW-3), formal FIR (Exh.P.A) was chalked out by (PW-1) Muhammad Shafique, A.S.I. whereas (PW-3) separated 05-grams heroin from each pad and prepared two sealed parcels of recovered heroin P-1/1-2, two pads P-2/1-2, bag P-3 and also prepared two sealed parcels of samples vide recovery memo (Exh.P.B) and on personal search of accused, namely, Muhammad Asjad, hand bag of black colour P-3, mobile phone P-4, Sims Spain P-6, ATM Card Spain P-7, Shirts P-8/1-2, Paints P-9/1-2, air-ticket P-10, Joger/Niker P-11/1-2, residence card P 12, two pads P-2/1-2, 50 Euro, Pak Rs.700/- P-14, passport P-15 which took the same in possession through recovery memo (Exh.P.C), thereafter he prepared rough site plan (Exh.P.E) at the spot and recorded statements of the prosecution witnesses under section 161, Cr.P.C. On reaching the police station, the Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and for onward transmission to the quarter concerned. Having found the accused guilty, the Investigating Officer prepared report under section 173, Cr.P.C., while placing his name in Column No.III of the Challan and sent the same to the court of competent jurisdiction.

4. The learned trial court formally charge sheeted the appellant on 31.01.2012, to which he pleaded not guilty and claimed trial.

5. On 11.06.2012, the learned Special Prosecutor gave up PW Muhammad Safdar being unnecessary and closed the prosecution evidence after tendering the report of Chemical Examiner, Exh.P.F.

6. The appellant was also examined under section 342, Cr.P.C. wherein he opted not to lead defence evidence and not to appear as his own witness in terms of section 340(2), Cr.P.C. in disproof of allegations levelled against him and while replying to a question that why this case against him and why the PWs have deposed against him, the appellant made the following deposition:- "It is a fake case. I was being checked at ANF counter. Azhar Hussain PW-3, LNK Muhammad Hanif PW-4 and Hav. Safdar Baig PWs were present there. They started harassing me on the pretext that my traveling documents are fake. I protested and said them that to check or declare documents as false or bogus is not their function. Over which a quarrel took place between me and them as detailed in cross examination. ASF officials also snubbed them i.e. Azhar Hamesh etc. I also threatened them for legal action against them. Thus above said ANF officials registered this fake case against me to take their revenge and save their skins. PWs deposed against me being subordinate of ANF officials."

7. After hearing the arguments advanced by the learned counsel appearing on behalf of both sides, the learned trial court, while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.

8. Learned counsel for the appellant while opening his arguments contended that the recovered articles were in the shape of two pouches whereas Azhar Hamesh, S.I. (PW-3) during cross-examination deposed that (P-1/1-2) is now in the shape of two pouches whereas the learned trial court observed that pads are inside the envelops and. envelops are in the fine papers pasted with plastic sheets; that the alleged Heroin is stated to be in pads as per complaint (Exh.P.D), recovery memo (Exh.P.B) and statements of PW-3, Azhar Hamesh as well as LNK Muhammad Hanif (PW-4) but the case property (P-1/1-2) produced before the court was in the shape of two pouches; that the PW-3 had denied that (P-2/1-2) are envelops whereas the learned trial court observed that pads were inside the envelops and as such from the contents of recovery memo as well as the complaint, it does not reflect that Heroin was inside envelops and envelops were in the fine paper pasted with plastic sheets and same material was recovered from (P-1/1-2), thus these circumstances indicate that the alleged recovery is doubtful. Further contends that the prosecution case is highly doubtful and appears to be unbelievable; that from the entire prosecution evidence, the prosecution has badly failed to prove that entire proceedings were conducted under the supervision of Qadeer Ahmad Baig, Deputy Director because neither his statement under section 161, Cr.P.C. was recorded nor he was cited as prosecution witness whereas the appellant in his statement under section 342 of Cr.P.C., has raised a specific plea that he was checked at A.N.F. counter and communication took place on which he was involved in the instant case; that it was necessary that boarding card would positively be with the appellant and the same should have been taken in possession by the officials of A.N.F; that in case boarding card was returned back to the authorities as passenger was not allowed to travel, then certificate of off-loading should have been produced by the prosecution; that according to law, a single circumstance throwing doubt in the prosecution case is sufficient to discard the prosecution case.

9. On the other hand, learned Special Prosecutor General has opposed the contention raised on behalf of the appellant and stated that in view of the quantity of recovered narcotic substance, the learned trial court has rightly convicted the appellant.

10. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Additional Prosecutor General and have minutely perused the record available on the file.

11. According to the complaint (Exh.P.D) at 3.00 a.m. (night) the appellant was apprehended in a waiting lounge, who disclosed his name as Muhammad Asjad and on search of hand bag of the appellant, two pads were recovered. The pads were opened and Heroin of brownish colour was recovered whereas report was lodged at 7.00 a.m (morning), however, the matter was not reported to the agency concerned immediately after arrest of the appellant and instead of that, the matter was reported after four hours at 7.00 a.m. (morning). The recovered articles and contraband Narcotics were kept by Azhar Hamesh, S.I. (PW-3) for four hours with him without giving any plausible explanation. Thus, it creates doubt in the prosecution case and in the given circumstances, it is to be seen that whether a sample from the recovered pads was taken and sent to the office of chemical examiner for report.

12. In the complaint (Exh.P.D) and in the recovery memo (Exh.P.B) as well as in the examination-in-chief of Azhar Hamesh, S.I. (PW-3) it is specifically mentioned that brownish colour Heroin was recovered from possession of the appellant whereas from the contents of report of Chemical Examiner (Exh.P.F) it appears that sample received by the office of Chemical Examiner was of "off white colour", therefore, admittedly these were not the alleged contraband narcotics, which were recovered from the appellant, thus no recovery of Heroin can be attributed to the appellant.

13. In addition to it, it is in prosecution evidence that four parcels i.e. two sealed parcels of recovered Heroin (P-1/1-2) and two parcels of samples were prepared by Azhar Hamesh, S.I. (PW-3) through recovery memo (Exh.P.B) and same fact is mentioned in the complaint (Exh.P.D) whereas LNK Muhammad Hanif (PW-4) during cross-examination stated that only two seals were embossed in this case. Azhar Hamesh, S.I. (PW-3) during examination-in-chief deposed as under:- "On the search of the hand bag of accused, two pads were recovered. The pads were opened and Heroin of brownish colour was recovered." Whereas during cross-examination he deposed as under and observations of learned trial court are as under:- "It is incorrect that (P-2/1-2) are envelops. The court has observed that pads were inside the envelops and envelops are in the fine paper pasted with plastic sheets. I have not mentioned the quality of envelops. I have also not mentioned anywhere in my proceedings that the pads are in the envelops ........" Azhar Hamesh, S.I. (PW-3) further deposed as under:- "I have not mentioned in the record that two big pads were recovered and same were opened then two small were lying in the same with narcotic. Pads are not sealed and there is no description on pads."

14. The prosecution has relied upon the recovery of Heroin to connect the appellant with the commission of the alleged crime. It is alleged that recovered articles were in the shape of two pouches. Azhar Hamesh, S.I. (PW-3) during cross-examination deposed that (P 1/1-2) is now in the shape of two pouches whereas the learned trial court observed that pads are inside the envelops and envelops are in the fine papers pasted with plastic sheets. The alleged Heroin is stated to be in pads as per complaint (Exh.P.D), recovery memo (Exh.P.B) and statements of PW-3, Azhar Hamesh as well as LNK Muhammad Hanif (PW-4) but the case property (P-1/1-2) produced before the court was in the shape of two pouches. The PW-3 had denied that (P 2/1-2) are envelops whereas the learned trial court observed that pads were inside the envelops. From the contents of recovery memo as well as the complaint, it does not reflect that Heroin was inside envelops and envelops were in the fine paper pasted with plastic sheets and same material was recovered from (P-1/1-2). These circumstances indicate that the alleged recovery is doubtful.

15. Keeping in view the facts and circumstances of the case, we have come to the conclusion that prosecution case is highly doubtful for the above referred reasons and prosecution story appears to be unbelievable and evidence of police officials is not confidence aspiring. From the entire prosecution evidence, the prosecution has miserably failed to prove that entire proceedings were conducted under the supervision of Qadeer Ahmad Baig, Deputy Director because neither his statement under section 161, Cr.P.C. was recorded nor he was cited as prosecution witness whereas the appellant in his statement under section 342 of Cr.P.C., has raised a specific plea that he was checked at A.N.F. counter and interaction took place on which he was involved in the instant case. In these circumstances, when close scrutiny of prosecution evidence was made and we found that prosecution witnesses had stated that surveillance of passengers sitting in a waiting lounge was made, from where he was arrested as per site plan, in such situation, it was necessary that boarding card would positively be with the appellant and the same should have been taken in possession by the officials of A.N.F. In case boarding card was returned back to the authorities as passenger was not allowed to travel, then certificate of off-loading should have been produced by the prosecution. In these circumstances, no reliance can be placed upon the evidence of the police officials without independent piece of corroborative. Under the law, a single circumstance throwing doubt in the prosecution case is sufficient to discard the prosecution case. Therefore, we have come to the conclusion that prosecution case is highly doubtful about the alleged recovery and we extend the benefit of doubt to the appellant.

16. In view of above facts and circumstances, we are of the affirm opinion that the prosecution has badly failed to prove its case against the appellant beyond any shadow of doubt, as such the appeal is allowed. The appellant-Muhammad Asjad son of Muhammad Latif is acquitted of the charge under section 9(c) of Control of Narcotic Substances Act, 1997. He be released forthwith from the jail, if not required in any other case. HBT/M-133/L Appeal allowed.