2016 P Cr (PLP)

SARDAR MUHAMMAD SARFRAZ DOGAR, J.

Zafar Iqbal son of Asmat Ullah, the appellant, was embroiled in case FIR No.363/2007, dated 21.8.2007, under section 9(c) of Control of Narcotic Substances Act, 1997, registered at Police Station Safdarabad, District Nankana Sahib, and was tried by the learned Sessions Judge, Nankana Sahib. The learned trial Court seized with the matter in terms of judgment dated 20.11.2008 convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo fourteen years' R.I. with the direction to pay Rs.20,000/- as fine and in case of default thereof, further undergo R.I. for four months. The benefit of section 382-B, Cr.P.C. was also bestowed upon him. The appellant chose to assail his conviction and sentence by diarizing this appeal.

2. The prosecution story as alleged in the FIR is that on 21.8.2007, Muhammad Afzal S.I./complainant (PW-4), in response to a spy information, conducted a raid at a 'heavli' where Zafar Iqbal (appellant) and Qaiser sons of Asmat Ullah were busy in selling charas. Co-accused Qaiser, on seeing the police party, decamped, however, Zafar Iqbal (appellant) was apprehended. On his search, a shopper, gripped by him in his right hand, was found containing two packets of charas. The said packets were found two kilograms on weighing, out of which 10 grams from each packet was separated for chemical analysis. On personal search of Zafar Iqbal (appellant), Rs.2000/- were also recovered from him.

3. After registration of formal FIR, investigation was regulated by Muhammad Arshad S.I. (PW-1), who, after completing the investigation prepared report under section 173, Cr.P.C. and forwarded the same to the court of competent jurisdiction for trial.

4. The learned trial Court formally charge sheeted the appellant on 22.3.2008, to which he pleaded not guilty and claimed trial. The prosecution has produced as many as five witnesses. Muhammad Arshad S.I. (PW-1) was Investigating Officer of the case. Muhammad Arshad 398/MHC (PW-2) was scriber of FIR and kept two sealed parcels in safe custody at Malkhana and also sent the same to the Office of Chemical Examiner Lahore for analysis through Waryam Ali constable. Mukhtar Ali 111/HC (PW-3) was the recovery witness. Muhammad Afzal S.I. (PW-4) was complainant of the case. Waryam Ali 569/C (PW-5) deposited the sample parcels to the office of Chemical Examiner for analysis.

5. The prosecution after giving up Zafar Iqbal 232/C being un-necessary and tendering the report of chemical examiner (Exh.PD) closed the prosecution case.

6. By closing the prosecution case, the learned trial Court examined the appellant under section 342, Cr.P.C. wherein he professed innocence. In reply to the question why this case against you and why P.Ws. have deposed against you, he deposed as under:- "This case has been hatched up against me and my brother with malice and without authority and the proceedings have been conducted by the police maliciously. I am innocent. No recovery has been effected from me." The appellant neither opted to appear as his own witness in terms of section 340(2), Cr.P.C. nor he produced any evidence in defence.

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

8. Learned counsel for the appellant has contended that the appellant has been entangled in false case by the police just to show their efficiency; that all the prosecution witnesses are police officials so there is a clear violation of section 103, Cr.P.C. that the occurrence as narrated in the FIR had not taken place at all and that during the course of investigation nothing has been recovered from the possession of the appellant; that there are material contradictions in the prosecution evidence, which are sufficient to prove that the prosecution has failed to prove its case beyond any shadow of doubt against the appellant, therefore, appellant deserves acquittal.

9. On the other hand, learned Law Officer 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 and that the prosecution has proved its case by producing reliable and independent evidence beyond any shadow of doubt.

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

11. After careful scrutiny of the materials on record, we come to the conclusion that the prosecution has not established safe custody of recovered substance as Muhammad Afzal S.I./complainant (PW-4) deposed during examination in chief that he sent the complaint (Exh.PA) to the Police Station through Muhammad Arif constable along with accused for the registration of the case. Muhammad Arshad 398/MHC (PW-2) deposed that on 21.8.2007 he received complaint (Exh.PA) from Arif constable on the basis whereof he chalked out formal FIR (Exh.PA/1). He (PW-2) further deposed that on 21.8.2007, the Investigating Officer handed over to him two sealed parcels, which he kept in safe custody and handed over to Waryam Ali constable on 25.9.2007 for onward transmission to the office of Chemical Examiner. The deposition of Investigating Officer (PW-1) is also silent on this material dimension of the case and even he failed to explain that from where he has arrested the accused. The prosecution has not produced Arif constable who allegedly brought the appellant in police station. From perusal of above depositions, it is crystal clear that the prosecution has failed to establish the safe custody of recovered substance from the date of its seizer till production in the Court.

12. We have also noticed another material contradiction in the ocular account that in the complaint (Exh.PA) it is mentioned that the contraband charas was recovered from a shopper gripped by appellant in his right hand. Contrary to the above, complainant (PW-4) deposed during cross-examination that the recovered charas was in two separate packets having two separate shoppers. Mukhtar Ali 111/HC (PW-3) who was examined by the prosecution as recovery witness deposed that the charas comprising two blocks of one kilogram each. On the said statement of PW-3, the learned trial Court de-sealed the case property produced before him in order to ascertain that whether the same was comprised two blocks and it was found that in one shopper bag, there was two separate pieces in polythene and so many other small and big pieces were present. The other shopper bag also contains number of pieces of Charas in different polythene bags along with eight polythene small bags containing charas and five pieces were without polythene shopper. In the given state of affairs, the prosecution has failed to prove its case beyond any shadow of doubt by way of producing independent, reliable and confidence inspiring evidence. There are material contradictions, inconsistencies and discrepancies in the prosecution evidence available on the record.

13. Another fact rendering the prosecution case highly doubtful is that the Investigating Officer (PW-1) while appearing before the learned trial Court has become hostile and thus the prosecution case has become doubtful. The deposition of the prosecution witnesses are full of contradictions and based on material inconsistencies. In other words, there is strong doubt as to whether the sample analyzed by the Chemical Examiner was taken out of same material that allegedly recovered from the accused at the time of raid. The said discrepancy does create a reasonable doubt with respect to the link with evidence produced on behalf of the prosecution and in such circumstances the positive reports of chemical examiner also fails to inspire confidence.

14. There were so many omissions and contradictions in the testimonies of prosecution witnesses affecting the entire fabric of the prosecution case. The prosecution also withheld best evidence available with them in shape of Arif constable who allegedly brought the accused and complaint (Exh.PA) to the police station and non-production of this material witness cast serious doubt on the prosecution case, because non-production of material witness suggests that he would not support the prosecution case. The withholding of this important evidence in the peculiar circumstances of this case leads us to draw an adverse inference against the prosecution keeping in view Article 129(g) of Qanun-e-Shahadat Order, 1984. The prosecution has miserably failed to explain that why the best evidence available with the prosecution in shape of statement of Arif constable has been withheld. All the circumstances mentioned above are sufficient to believe that the prosecution case is highly doubtful and based on un-natural and unbelievable story. Guidance is sought from Muhammad Rafique and others v. The State and others (2010 SCMR 385) and Lal Khan v. The State (2006 SCMR 1846).

15. All the above contradictions are material in nature and cogitates that the material prosecution witnesses of the case are inconsistent on the dimension of safe custody of seized material and arrest of accused and thus their testimonies lack intrinsic value and inherent worth and cannot be safely relied upon.

16. Our careful appraisal and independent analysis of the evidence on the record, coupled with the defence version advanced by the appellant in his statement under section 342, Cr.P.C., the prosecution evidence deserves to be rejected, creating an impression on our minds that the prosecution has failed to prove the case against the appellant beyond a reasonable doubt. The depositions of prosecution witnesses are not up to the mark on the basis whereof no conviction can be recorded.

17. Keeping all the above possibilities in mind and raising necessary inferences from the facts available on the record we have arrived at a conclusion that a possibility cannot safely be ruled out of consideration regarding the appellant having been falsely implicated in the present criminal case and, thus, we have decided to extend the benefit of doubt to the appellant. Guidance is sought from Akhtar Iqbal v. The State (2015 SCMR 291) wherein the Hon'ble Supreme Court of Pakistan held as under:- "Parcels of recovered narcotic were sealed with the monogram (name initials) of an official who was not even posted at the relevant police station at the time of alleged recovery from accused

No explanation was offered as to why the said parcels did not contain the monogram of the recovery officer

Prosecution claimed that a sample had been taken from each and every slab of recovered substance but note recorded by Trial Court in such regard tendered to create an impression that such claim might not be correct

Accused in his statement under S. 342, Cr.P.C. claimed that he had been falsely implicated in the present case because he was instrumental in the arrest of a drug baron, who was later on convicted and sentenced to death

Probability existed that accused was falsely implicated in the present case

Appeal was allowed and accused was acquitted of the charge by extending him benefit of doubt." It is also held by the Hon'ble Supreme Court of Pakistan in the case reported as Gul Noor Ali v. The State (2015 SCMR 279) that:- "Prosecution thereafter proceeded with its case by adducing evidence of other prosecution witnesses who were all police officials

Public witness associated with recovery of narcotic had not supported the prosecution case, which created a dent in the veracity of the recovery being effected, and thus serious doubts had arisen, benefit of which had to go to the accused

Separate samples had not been taken from each and every packet for chemical analysis rather only one sample weighing 10 grams had been separated and sent for chemical analysis, and it had also not been specified as to from which packet the sample was separated

Such circumstances created serious doubt in the prosecution case, benefit of which had to go the accused

Appeal was allowed accordingly and conviction and sentence of accused under S. 9(c) of Control of Narcotic Substances Act, 1997, was set aside."

18. The crux of above discussion is that the prosecution has badly failed to prove its case against the appellant beyond any shadow of doubt. We have inferred the conclusion that the findings of learned trial Court regarding conviction of the appellant are based on misreading, non-reading and misappreciation of evidence available on record and are not sustainable in the eye of law, therefore, the appellant deserves acquittal.

19. For the above reasons, this appeal is allowed, the judgment dated 20.11.2008 whereby appellant was awarded conviction and sentence is set aside, and the appellant is acquitted of the charge.

20. The appellant is on bail as Crl. Misc. No.1-M of 2011 qua suspension of sentence of the appellant was accepted by this Court vide order dated 02.11.2011. Therefore, his surety stands discharged. HBT/Z-9/L Appeal allowed.