2004 PLP 1830 (YLR)

Mian Subah Sadiq Wattoo for Respondent. Date of hearing: 7th May, 2003. TASSADUQ HUSSAIN JILANI, J.‑‑‑This State appeal is directed against the judgment dated 22‑7‑1998 passed by Special Judge vide which having tried the respondent in the case registered vide F.I.R. No.370 of 1996, Police Station Saddar, under section 9 of Control of Narcotic Substances Ordinance VI of 1995 on the allegation that on personal search, he led to recovery of 5 Kg. of Opium. He acquitted them by giving them benefit of doubt.

2. During trial the prosecution examined four witnesses namely Qasim Ali, H.C. P.W.1, Amjad Ali, F.C. P.W.2, Naseer Ahmad, Inspector P.W.3 and Muhammad Ashraf Minhas, S.‑I. P.W.4. The accused when examined under section 342, Cr.P.C. denied the prosecution story and took up the plea as under:‑‑ "Whole of the prosecution story is false and fabricated: Actually huge quantity of Charas and Opium was recovered from one Fakhar Hussain Nonari a retired Sub Inspector Police lying in his house situated in city Depalpur. The said narcotic belonged to S.‑I. retired Fakhar Hussain, Ghulab Khan Pathan and Maqsood Patwari. The local police in connivance with the retired Fakhar Hussain/and other real culprits falsely planted the Opium on me and some other persons of our village and let off the actual culprits by accepting huge amount of gratification. Nothing was recovered from my possession. My relatives agitated the matter and the present high handedness of the police before the higher police officers and the case was reinvestigated by Abbas, D.S.P., C.I.A. Okara, Mr. Faizan Safdar, A.S.P. City Okara and Ch. Muhammad Muneer, D. S. P. Saddar Okara. All thew officers declared me innocent and recommended serioi:s departmental action against Inspector Naseer Ahmad and Muhammad Ashraf, S.-I., P.Ws. The P.Ws. have deposed against me falsely to prove their false case."

3. Learned counsel for the State submitted that the learned trial Court has based its findings of acquittal merely on the finding of the Investigating Officer and that the prosecution evidence has not been properly appreciated.

4. Learned counsel for the respondent/accused defended the impugned judgment by submitting that the prosecution evidence was inconsistent, that no independent witness was produced with regard to the recovery and that the case was found false during investigation.

5. We have heard learned counsel for the parties and have gone through the record.

6. The case of the prosecution is that on a source report, a raid was conducted. However, P.W.3 Naseer Ahmad, Inspector conceded that he did not record the receipt of this information in the daily diary of the police station. He further conceded that there is overwriting in the complaint Exh.P.A. He conceded that the respondent had given an application to S.P., Okara contending that he was innocent, whereafter the investigation was conducted by Ghulam Abbas, D.S.P. and the latter found the respondent to be innocent and recommended that he be discharged. He further admitted that the case was again investigated by the A.S.P., City Okara and he too found the case to be false and recommended the departmental action against him. P.W.4 Muhammad Ashraf, S.‑I. admitted that Naseer, Inspector P.W.2 declared Fakhar Hussain innocent and prepared his discharge report, that Fakhar Hussain accused in F.I.R. No.377 of 1996 admitted before the A.S.P. City, Okara that the whole recovery had taken place from his house but he was declared innocent as he has paid Rs.1,25,000 to Naseer Ahmad, Inspector. The statements of P.W.3 and P.W.4 to the effect that the case was found to be false in more than two investigations cast a serious doubt on the prosecution case. The testimony to be of recovery witnesses is worthy of no credit as they have been making inconsistent statements during investigation and in Court. For what has been discussed above, the impugned judgment of acquittal is neither arbitrary nor as alleged to be a grave miscarriage of justice to warrant interference. An accused acquitted after regular trial earns a double presumption of innocence. The prosecution in this case has failed to rebut this presumption. The appeal having no merit is accordingly dismissed. H.B.T./S‑67/L Appeal dismissed.