2009 PLP 1724 (YLR)

MRS. YASMIN ABBASEY, J.

Appellant convicted in a case under sections 6, 8 and 9(c) of the Control of Narcotic Substances Act, 1997 for life imprisonment with the fine of Rs.100,000 and in default whereof to suffer further R.I. for one year, has filed this appeal. Challenging the finding of trial Court it is contended by learned counsel for the appellant that the learned trial Court has not properly appreciated evidence produced by prosecution as well as by appellant. Samples were not taken from each and every slab for sending the same to Chemical Examiner, only sample from three packets were taken therefore it is hard to say that the remaining substance was Charas or not. Chemical Examiner report also makes the prosecution case as doubtful. According to prosecution they had sent the case property i.e. Charas in the shape of slabs whereas Chemical Examiner report shows that it was received by them in shape of black brown grinded multi colour material. The remaining property was not produced in sealed condition. Prosecution has failed to prove knowledge of appellant about presence of narcotic substance in secret cavity of truck. Major contradictions are appearing is evidence of prosecution witnesses. Appellant is more than 65 years old. He has been falsely implicated in the matter. Whereas case of prosecution is that on 19-2-2004, when Excise Inspector Azizullah along with his patrolling party was present at Syed Patrol Pump situated at National Highway and was checking the vehicles. He found a truck having Registration No.2034 of Peshawar coming from Sukkur side. It was stopped. On query, driver disclosed his name as Jan Alam resident of Peshawar. The truck was found loaded with hardboard. On search of truck, they recovered a voucher and a registration book of truck in the name of Kamal Khan. During search they found a secret cavity from back side of driving seat. On opening it was found filled with 100 packets of Charas, each packet was of one kg. Three packets out of total quantity were separated and sealed whereas remaining property was also sealed in three plastic bags. Memo. of recovery of case property was prepared in presence of EC Atta Hussain and CE Sabir Hussain. Both case property as well as accused were brought at DIO Camp, Kandiaro, F.I.R. was lodged. After due investigation and sending the case property to chemical examiner, case was challaned in Court. Prosecution examined in all two witnesses, EC Atta Husain and Excise Inspector Azizullah. Appellant examined himself under section 342, Cr.P.C. and has not produced any witness in defence. Apparently only appellant Jan Alam is shown as culprit of incident. In Mashirnama of recovery and F.I.R. registered on 19-2-2004 and challan submitted on 23-2-2004 on other person or persons were implicated along with appellant. However, from statement of appellant recorded during investigation he had named Kamal Khan as owner of truck with whose consent case property owned by Ahmed Shah Afridi resident of Dara Adam Khel was kept in truck for its delivery at Karachi to Zarbaz 'Afridi at Sohrab Goth Karachi. It appears that because of that statement Kamal Khan, Ahmed Shah and Zarbaz were impleaded as accused in above matter. It is strange that in spite of statement of accused during investigation no role of these persons has been shown in challan except naming them in Column No.2 as absconder. Anyhow, it appears that trial Court' while framing charge itself had examined the whole file and after going through this statement of appellant recorded on 19-2-2004 has framed the charge. Subsequently P.W.2 in his examination-in -chief has also stated that "I also recorded statement of accused who disclosed the name of owner of truck as Kamal Khan." He further disclosed that the case property was the property of Zarbaz Afridi, which was given to appellant by absconding accused Ahmed Shah. If for the sake of arguments, statement made by appellant during investigation is taken into consideration then first question arises that when during investigation, Investigating Officer became well aware about the actual owner of case property and transportation of same through the truck of co-accused, why no attempt was made by him to reach to the main culprit. The purpose of Control of Narcotic Substances Act is to control and prevent the spread of Narcotic Substance by detecting the very first source which is disturbing the peace and tranquility of society and not to involve a person just to show the surface efficiency in detection of crime. Contents of challan are totally silent that even after coming in knowledge of all the three culprits through appellant and also about owner of truck from registration book of Kamal Khan whether Investigating Officer ever tried to reach to the main culprits. Every authority established under the cover of Constitution responsible to function of behalf of that authority of the State in accordance with principles of policy. The policy formulated under section 23 of Police Act, 1861 describing the duty of police officer is to collect and communicate intelligence affecting public peace; to prevent commission of offence and public nuisance; to detect and bring offenders to justice and to apprehend all persons whom he is legally authorized to apprehend with sufficient ground. With his enthusiasm Rule 19.1 Police Rule, 1934 would be beneficial to quote 'which describing the importance of police training says that successful police work depends very largely on each individual officer acting correctly on his own initiative. Police force has been compared with an intricate machine the inefficiency of one cog of which may mean in some important instance the inefficiency of the whole. It also-cannot be disputed that even after submission of final report under section 173, Cr.P.C. there is no legal bar on police officer to continue on investigating the matter to have a success to arrest absconding accused. Police is competent under the law to carry out investigation to submit correct and true facts brought in their knowledge even after submission of challan for proper adjudication of the case. Admission of P.W.2 who beside complainant also acted as Investigating Officer leaving a lacuna confirms this fact that:

"It is the fact that I had not recorded the statement of any independent person regarding ownership of the property nor I have recorded any statement to show that from where the 'charas was kept in the truck." As per prosecution Charas was in the shape of slabs and each packet was containing double slabs of charas. Whereas as per Chemical Examiner report the narcotic substance which was sent to them was black brown grinded multi colour material. This material contradiction in the prosecution case makes the case highly doubtful. Identity of samples alleged to have been taken from the main substance becomes doubtful and it cannot be said with judicial certainty that samples sent to Chemical Examiner were the same which are shown to be recovered from appellant. Date of receiving of substance in the office of Chemical Examiner put a further dent in prosecution story because as per Chemical Examiner report substance was delivered to EC Anwar Ali on 19-2-2004 but it was received in the office of Chemical Examiner on 20-2-2004 and this gap of one day has not been explained by any of the prosecution witnesses that during the period when substance was delivered to EC Anwar Ali on 19-2-2004 till the time it was handed over in the office of Chemical Examiner on 20-2-2004, whether case property was kept in safe custody or it remained with EC Anwar Ali and if it was not in safe custody circumstances of manipulation of same cannot be ruled out. Ground urged by learned counsel for the appellant that even if recovery is assumed then also out of 100 packets of Charas sample was taken only from three packets as admitted by P.Ws.1 and 2 and the report obtained of that material cannot be treated against the appellant for the whole substance allegedly recovered from his possession. Reliance is placed on Amanat Ali v. State (2008 'SCMR 991) observing that:-- "Notwithstanding the fact that the report of the chemical examiner was positive, the crucial question for determination would be as to whether a quantity of one gram would be sufficient to ascertain the origin of the contents of all the eight packets." It was answered that: "Be that as it may, in the normal situation it was essential for the raiding party to prepare a separate parcel of at least one gram from each packet for chemical analysis and same having been not done a serious doubt, would arise in respect of the origin of contents of all the packets. In consequence thereto, it would not be safe to bring the case within the ambit of section 9(c) of Control of Narcotic Substances Act, 1997, for the purpose of conviction and sentence rather a legitimate presumption would be that report of Chemical Examiner would be read only to the extent of one packet of the approximate quantity of less than one Kg and in that the case would squarely fall within the ambit of section 9(b) of the Control of Narcotic Substances Act, 4997." Almost the same view has been taken in Sher Khan v. State (2003 MLD 259) and because of different version taken by prosecution witnesses about quantity of case property recovered and sample taken only from one slab, case was held to be doubtful and accused was acquitted. In the present case not only the sample was not taken from each slab but the substance sent to Chemical Examiner was found totally different to one recovered in the case, is sufficient to take an adverse view against prosecution as held by Honourable Supreme Court of Pakistan in Tariq Pervez v State (1995 SCMR 1345) that:-- "For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right." It is alleged that at the time of arrest this appellant was driving the vehicle but no driving license was secured from his possession nor any clarification about non-securing or non-production of driving licence has been placed on record by prosecution because as per photocopy of builty which though has not been produced in evidence but is on the file of learned trial Court, column of name of driver is blank. When attention of P.W.1 was drawn towards the blank column of driver of vehicle, he stated that "it is correct that name of driver is not mentioned in the voucher. Voluntarily says that- it is not necessary to mention the driver's name on voucher." Whereas P.W.2 is silent about this clarification but has admitted that no driving licence was recovered from possession of this appellant and that he is not owner of the truck. Under these circumstances the defence of appellant that he just took the lift from the actual driver of this truck who has been released by the prosecution and he has not been falsely involving in the case, cannot be overlooked in toto. Although the contents of memo. of recovery and F.I.R. disclose about the recovery of 100 packets of charas but the fixation of that particular cavity has not been specifically mentioned in both these documents. Only the word secret places of the truck has been used therein. It is subsequent thereto both prosecution witnesses in their statements had added the particular place of secret cavity behind driving seat which apparently is an improvement tried to be made. Non-association of independent person in spite of the fact that recovery took place at public place is itself a question mark in view of above discussion, which do find support from Ali Hassan v. The State (PLD 2001 Karachi 369) that:-- "The trial Court has further referred to the provisions of section 25 of the Control of Narcotic Substances Act, 1997, whereby applicability of section 103, Cr.P.C. in the cases under this Act has been excluded. This exemption may give a legal technical support to the admissibility of the evidence of official witnesses, but it does not make them reliable. Man cannot be made moral through legislation. Evidence of such official witnesses should always be examined with a view of the facts that in a society with the level of moral values that we unfortunately have, a subordinate official is seldom excepted to tell the truth in deviation of the express or implied instructions of his superior. As far the ulterior motive, these officials are always interested to show their efficiency by registering more cases and the reason for not foisting the other opium, allegedly thrown away by one Irshad Khan who escaped, upon the present appellant may be to make more number of cases by that quantity." Upshot of the above discussion is that prosecution has miserably failed to prove case against appellant, so also during whole trial up to pronouncement of judgment in Special Case No.3 of 2004 on 28-8-2006 in a big period of more than two years, Investigating Officer was able to arrest absconding accused persons, though in presence of registration book it was not difficult for police to reach to the owner of vehicle to find out the truth. Under these circumstances it can be concluded that by making a concocted statement of appellant during investigation, prosecution has tried to make out a case against appellant to show his involvement in main deals of narcotics, because if it would had been correct, no reason has been assigned that why without any reference in so-called statement of appellant made on 19-2-2004 only names of absconding accused were shown in column No.2 without assigning any role of them in the Commission of offence. Appellant is behind the bar since 19-2-2004 till this date. He spent five years of his life in jail. In view of fact that prosecution has not been able to prove its case against appellant, this period of detention will be termed as illegal confinement, which cannot be returned back to him. If a police officer failed to discharge his duty in diligent and efficient manner and fail to find out the truth, he is guilty of malicious proceeding conducted against an innocent person, for which he has to be penalized both through department disciplinary proceeding or compensation in terms of damages to be assessed by the aggrieved person himself. Appeal of the appellant is allowed and the impugned judgment is set aside. Appellant may be released forthwith if not required in any custody case. N.H.Q./J-6/K Appeal accepted.