2003 P Cr (PLP)

MUHAMMAD FARRUKH MAHMUD, J.‑‑‑ Through this appeal Muhammad Tariq, appellant, has challenged the judgment dated 1‑6‑2002 passed by Mr. Murab Khan, Additional Sessions Judge, Layyah, whereby the appellant was convicted under section 9(b) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to C.N.S.A.) and was sentenced to 1‑1/2 years' rigorous imprisonment with a fine of Rs.1,000, in default thereof the appellant was to further undergo simple imprisonment for two months.

2. According to complaint Exh.P.B. drafted by Muhammad Akram, A.S.‑I. P.W.4 that he alongwith other police officials was present at Rafiqabad Picket at about. 8‑25 p.m. on 4‑11‑2000, when he received secret information that one person who sold narcotics was present at the Bridge of Dad Minor within the vicinity of Chak No.367/TDA, waiting for the Bus and could be apprehended. After receipt of information the complainant alongwith other police officials reached near the aforementioned Bridge and apprehended the appellant. On his search, opium weighing 170 grams, which was wrapped with tracing paper was recovered from the right side pocket of the shirt worn by the appellant. One fifty Rupees note and six ten Rupees notes. were also taken out by the police from the front pocket of the shirt of the appellant. It is also stated in Exh.P.B. that after recovery of opium 10 grams was separated for Chemical analysis and two sealed parcels were prepared accordingly. According to Exh.P.B., the drafted complaint was handed over to Muhammad Yaqoob, Constable P.W.3, who was sent to the police station for registration of the case. According to police record after receipt of the complaint Riaz Hussain, Head Constable/Muharrar registered the formal F.I.R. No.212 Exh.P.B./1 at Police Station Chobara, District Layyah, on 4‑11‑2000, for offences under section 9(b) of the Control of Narcotic Substances Act,‑1!997 read with Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979.

3. After investigation the case was sent up for trial and the, charge was framed. The appellant denied the charge and the trial commenced. During trial the prosecution produced five witnesses in support of its case and after placing on record the report of the Chemical Report Exh.P.D, closed the evidence.

4. P. W .1 Muhammad Akhtar and, P. W .4 Muhammad Akram stated about the recovery. Muhammad Akram P.W.4 also stated about the complaint and initial investigation. P.W.5 Fayyaz‑u1‑Haq, S.‑I./S.H.O. stated about the investigation of the case. P.W.2 Riaz Hussain stated about the formal registration of the case, while P.W.3 Muhammad Yaqoob stated about the recovery as well as deposit of the sealed parcel in the Office of the Chemical Examiner.

5. In his statement under section 342, Cr.P.C. the appellant denied the charge and stated that he was falsely implicated in this case. Further stated that nothing was recovered from him and was roped in this case as he was travelling with one Javed lqbal from whom the recovery of narcotics had been effected. The appellant did not produce any defence and also did not appear .as witness as envisaged by section 340(2), Cr.P.C.

6. The learned counsel for the appellant has argued that no recovery was effected from the appellant; that P. Ws. had contradicted one another on the material points; that no one from the public was associated during the recovery proceedings and that the story advanced by the prosecution was not plausible.

7. Conversely the learned counsel appearing on behalf of the State has supported the conviction and has argued that no reason has been brought on the record to show as to why the appellant was roped in this case falsely.

8. We have heard the learned counsel for the parties at length and have also gone through the entire evidence as well as the record of the case minutely. According to Exh.P.B. (complaint) and Exh.P.A. (recovery memo.), soon after the recovery two sealed parcels were made. One contained 10 grams of recovered opium, which was to be deposited in the office of Chemical Examiner. and the other contained rest of the opium. P. W. 4/complainant stated accordingly before the Court. On the ; other hand P.W.5 /S.H.O. concerned had admitted in his cross‑examination that when he reached the place of occurrence Muhammad ` Akram A.S.‑I., produced before him two parcels of opium. He inspected the opium and the seal was not affixed on the parcels when he reached there. P.W.4 also stated that after drafting the complaint Exh.P.B., he handed over the same to Muhammad Yaqoob, Constable, and sent him to police station for registration of the case. Time of recovery mentioned in Exh. P. B. is 8‑25 p. m. According to F.I. R. Exh. P. B. / 1, the same was registered at 9‑00 a.m. it other words within,35 minutes. A perusal of the F.I.R. shows that the distance between the place of recovery and the police station was about 13 miles. P.W.5/S.H.O. in his examination‑in- chief recorded by the trial Court stated that the complaint was handed A over to him at Turku Adda, where he was present in connection with patrolling duty. He had received information at about 9‑30 p.m. P.W.3 Muhammad Yaqoob during his statement before the trial Court did not say any word about receiving of complaint and taking the same to the police station. He also did not mention about his meeting with P.W.5, S.H.O. concerned, who ostensibly completed the investigation on the night of occurrence.

9. According to prosecution version, the appellant was apprehended at 8‑25 p.m. on 14‑11‑2000, it was a winter night. When P.Ws. were questioned about the source of light, they came out with different and fantastic answers. P.W.3 Muhammad Yaqoob stated that there was no electricity on the place from where the recovery was effected and the whole proceedings were completed in darkness. P. W.4 Muhammad Akram, A.S.‑I., stated that there was a Government Tubewell near the place of recovery and he completed the proceedings in the electric light available at the said tubewell. No employee of the tubewell was present at that time and no one arrived there during the proceedings. P.W.5 Fayyazul‑Haq, S.‑I./S.H.O. stated that there was electric light near the place of recovery and he never mentioned any tubewell or recording of proceedings near the tubewell. P.W.1 Muhammad Akhtar stated that they were having torches and candles with them.

10. Considering all the abovementioned circumstances, we are of the considered opinion that Exh.P.B. (complaint), Exh.P.B./1 (F.I.R.) and Exh.P.A. (recovery memo.) were fabricated by the police and in fact no proceedings were recorded at the place of recovery as shown in the aforementioned documents. Similarly the time of registration of the formal F.I.R. has also been fabricated and manipulated. There are material contradictions in the statements of the P. Ws. , who are the police officials, on all the material points, which have caused dent in the case of the prosecution. The Legislature in order to control the menace of narcotics has given wide powers to the Police Officers. We feel that the responsibility lies upon the Police Officers not to take advantage of their powers and not to manipulate or fabricate the record. According to golden principle of benefit of doubt, one substantial doubt is enough to acquit the accused. The evidence in this case is replete with contradictions, therefore, has created a genuine doubt in our minds about the truthfulness of the version as advanced by the prosecution.

11. The upshot of the whole discussion is that we are of the considered opinion that the prosecution has failed to prove its case beyond doubt against the appellant, therefore, we allow this appeal, set aside the judgment dated 1‑6‑2002 and acquit the appellant of the charge. He would be released from jail forthwith, if not required in any other case. S.M.A.H./M‑1568/L Appeal allowed.