2003 P Cr (PLP)

SYED SAKHI HUSSAIN BUKHARI, J.

This appeal is directed against the judgment dated 31-7-2001 passed by learned Additional Sessions Judge, Bahawalpur whereby Mst. Shamim appellant was convicted under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer R.I. for 14 years. She was also directed to pay Rs.50,000 as fine.

2. The prosecution story as appearing from the testimony of Abdul Hameed, Inspector/S.H.O. (P.W.5) is that on 14-3-2000 he was posted as S.H.O., Police Station Saddar Bahawalpur and on the same day at about 8-30 p.m. he alongwith other police officials were present in Cheema Town near the residence of Master Muhammad Sharif (P.W.). Two persons riding on a motorcycle (Honda 125-CC) came there, he stopped them and they disclosed their names as Allah Ditta and Ghulam Farid. On the personal search of Allah Ditta he was found in possession of heroin weighing 700 grams. Out of heroin recovered one gram was separated for sample purposes and the same was, taken into possession. On their personal search their N.I.Cs. were also recovered from their pockets which were taken into possession vide memo. Exh.P.C. In the meanwhile residents of Mohallah, Dr. Muhammad Afzal, laffar Khan, Mumtaz Khan and Master Muhammad Sharif also came there and he started investigation in their presence. Allah Ditta accused disclosed that they were dealing in Narcotics since long and the same were lying in his residential room and he could get recover the same. On this Allah Ditta accused led to the recovery of Charas weighing 4 Maunds 20 Kgs. and opium weighing 1 Maund. Out of said Charas and Opium he separated 10 grams each for sample purposes and took the same into possession. Then he interrogated Ghulam Farid, accused and in the presence of P.Ws. he disclosed that he deals in Narcotics and could get recover opium from his residential room. He while in police custody led to the recovery of opium weighing 1 Maund (Exh.P.1) from the residential room of his house. He separated 10 grams from Opium recovered from accused and made into sealed parcels and took the same into possession vide memo. Exh.P.A. in the presence of P.Ws. The accused further disclosed that there were other Narcotics, sale price, sale, weights and account book in the custody of Mst. Shamim. On this disclosure he associated Mst. Shamim in investigation. She produced keys of safe and opened the same lying in her residential room and got recovered opium weighing 2 Kgs., Rs.3,95,410, weight and scale from her Almirah. He separated 10 grams from the opium recovered for sample purposes and took all articles into possession. He drafted complaint Exh.P.B. and sent the same to the police station for formal registration of case. He prepared site-plan Exh.P.A.1, recorded statements of P.Ws. and arrested the accused. After investigation he came back to the police station, handed over case property to 'Moharrir' for safe custody in 'Malkhana' and for onward transmission to the office of Chemical Examiner and after completion of investigation challaned the accused. The S.H.O. prepared three separate challans of Ghulam Farid, Allah Ditta and Mst. Shamim.

3. The accused appeared before trial Court and charge under section 9(c) of Control of Narcotic Substances Act, 1997 was framed against her to which she pleaded not guilty and claimed trial whereupon prosecution evidence was recorded. Prosecution examined 5 witnesses in all to prove its case against the appellant. Thereafter accused was examined under section 342, Cr.P.C. wherein she denied the allegations levelled against her by the prosecution and pleaded her innocence. She examined in her evidence D.W.1, Muhammad Aslam.

4. After hearing the parties learned trial Court convicted the appellant under section 9(c) of C.N.S.A., 1997 and sentenced her to suffer 14 years R.I. She was also directed to pay Rs.50,000 as fine. The case property (sale price of opium Rs.3,95,410, scale and weights) was confiscated in favour of State and it was directed that remaining case property (opium weighing 2 Kgs.) shall be destroyed. Hence this appeal.

5. We have heard the arguments and perused the record.

6. The prosecution case is that Allah Ditta and Ghulam Farid got recovered opium and Charas from their house. Also that Mst. Shamim (wife of Allah Ditta, accused) produced keys of Almirah and got recovered opium and aforesaid amount. According to prosecution own case appellant is wife of Allah Ditta and at the relevant time she was living with her husband in the same house. So it is clear that she did not reside in the house alone. As such it would be considered that only Allah Ditta and Ghulam Farid were in possession of the house and the case property allegedly recovered at the instance of Mst. Shamim belonged to her husband, Allah Ditta and she was not responsible for the same.

7. It is not the prosecution case that she was found selling or transporting opium from the house of her husband, Allah Ditta to any other place. As such we find that her case is not free from doubt. Even otherwise it does not sound to be natural that only opium weighing 2 Kgs. was in possession of Mst. Shamim whereas huge quantity of Charas and opium was recovered at. the instance of her husband and Ghulam Farid from the same house. It seems that she had been challaned only being wife of Allah Ditta. In our opinion nothing was recovered from her and prosecution story is doubtful. In these circumstances, we find that prosecution has failed to prove its case against Mst. Shamim beyond any shadow of doubt.

8. The upshot of the above discussions is that the appeal brought by Mst. Shamim is accepted, impugned judgment is set aside and she is acquitted of the charge preferred against her by the prosecution. However this judgment would not prejudice prosecution case against Allah Ditta and Ghulam Farid.

9. The appellant has not claimed the case property, therefore, order of learned trial Court to the extent of confiscation of case property shall remain intact, therefore, Rs.3,95,410, scale and weights shall stand confiscated in favour of State whereas opium (Exh.P.1) shall be destroyed. The appellant is in jail and she shall be released forthwith if not required in any other case. H.B.T./S-663/L Appeal accepted.