2026 PLP 686 (SCMR)

ISHTIAQ IBRAHIM, J.

This Criminal Petition for Leave to Appeal, filed by Yousaf Khan, the petitioner, is directed against the judgment dated 19.09.2022 ("impugned judgment"), passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby dismissing the appeal of the petitioner, his conviction and sentence under section 9(c) Control of Narcotic Substances Act, 1997 ("Act of 1997"), recorded in case FIR No.35 dated 07.07.2012, registered under section 9(c) of the Act of 1997, at Police Station ANF RD, Rawalpindi, by the Sessions Judge/Judge Special Court (CNS), Rawalpindi ("Trial Court"), was upheld.

2. The prosecution's case, as set forth in the First Information Report ("FIR") Exh.PA/1, is that upon receipt of credible spy information regarding the trafficking of narcotics by the petitioner Yousaf Khan along with his co-accused Noor Jamal to Lahore in a vehicle bearing registration No. IDJ-4440 (Toyota Corolla) via the Motorway, on 06.07.2012 a raiding party consisting of Muhammad Zubair Inspector ANF (PW.5) and other ANF officials was constituted under the supervision of Shahzad Ali Kawish, Assistant Director ANF, which reached at 09.00 p.m. on Lillah Interchange Motorway, where the aforementioned vehicle, occupied by two persons including the driver reached. The same was signaled by the ANF officials to stop, however, instead of complying with the direction of the ANF officials, the driver accelerated the vehicle in the direction of Lahore. Shahzad Ali Kawish, Assistant Director, contacted the Motorway Police, who were present at a distance of about one kilometre ahead of the Lillah Interchange towards Lahore. In response, the Motorway Police successfully intercepted the aforesaid vehicle. Person seated in the front passenger seat of the vehicle, allegedly managed his escape good from the spot taking benefit of the darkness. However, the petitioner, who was on driving seat of the vehicle, was apprehended at the spot. On search of the vehicle, Muhammad Zubair Inspector (PW.5), allegedly recovered eighteen (18) packets of charas, each weighing 1200 grams, total 21.150 kilograms and six (6) packets of opium, each weighing 1200 grams, from secret cavities made within the vehicle's dashboard. He separated 10 grams from each packet of charas and opium as representative samples for chemical analysis and sealed them in parcels for onward transmission to the Forensic Science Laboratory (FSL). He then took into possession the recovered contraband charas (Exh.P.1) and opium (Exh.P.2) through recovery memo Exh.P and registration book of the vehicle (Exh.P.3), the original departmental card of co-accused Noor Jamal (Exh.P.7), and the driving licence of the petitioner Yousaf (Exh.P.6) through recovery memo Exh.PC.

3. Upon completion of investigation report under section 173 Cr.P.C. was submitted against the petitioner before the Trial Court. After facing full dressed trial, the petitioner was convicted under section 9 (c) of the Act of 1997 and sentenced by the Trial Court to undergo imprisonment for life and to pay Rs. 10,00,000/- as fine and in default thereof to further undergo two years simple imprisonment. Benefit of Section 382-B Cr.P.C. was extended to him. The Lahore High Court Rawalpindi Bench, through the impugned judgment while dismissing appeal of the petitioner maintained his conviction and sentence.

4. We have heard the arguments of learned counsel for the petitioner and the learned Special Prosecutor for ANF and perused the record, evidence and the impugned judgment.

5. Muhammad Zubair Inspector (PW.5), the seizing officer, while appearing before the Trial Court, reiterated the same story as set forth in the FIR regarding the arrest of the petitioner and the alleged recovery of narcotics from secret cavities of the vehicle. Saifullah Constable (PW.4), who is a marginal witness to the recovery memo (Exh.PB) also posed to have witnessed the recovery. In cross-examination he stated that the petitioner's vehicle was signaled to stop at 9:00 p.m., but instead of complying, he accelerated the car and was intercepted by the Motorway Police after covering a distance of about one to one-and-a-half kilometers. He further stated that he could not recall the names or designations of the Motorway Police officials, though they were two in number. He added that Muzaffar Hussain ASI, Muhammad Waseem and Naheed Ahmad Constables, chased the co-accused who had decamped from the spot. In contrast, Muhammad Zubair (PW.5) deposed that only Muzaffar Hussain ASI and Constable Naheed had chased the absconding accused. According to the Seizing Officer, the Motorway Police officials were present at the time of recovery of the narcotics from the vehicle. However, he candidly admitted that he neither requested nor directed any of them to witness the recovery proceedings. He further conceded that any incident occurring on the Motorway is mandatorily reported to the Motorway Police. The seizing Officer has not furnished any explanation, much less plausible, as to why the motorway police officials who allegedly help in intercepting the vehicle of the petitioner, were not cited as witnesses to the recovery proceedings or at least cited as prosecution witnesses in the challan.

6. We have noted that upon the application of the petitioner, one Ejaz Ahmed S.I Motorway Police, was summoned and examined as Court Witness (CW.1) on 28.02.2015. A bare perusal of his deposition reveals that he completely refuted the version Muhammad Zubair, the seizing officer. He deposed that on 06.07.2012, he along with one Shahid Rasool was on routine patrolling duty in the vicinity of the Sial Morh Service Area when they intercepted a vehicle bearing registration No. IDJ-4440 (vehicle which was allegedly driven by the petitioner); that one person sitting in the passenger seat of the said vehicle managed to escape, while the petitioner, who was driving the vehicle, was apprehended on the spot; that upon search of the vehicle, they recovered 22.500 kilograms of charas and 6.500 kilograms of opium; that he immediately informed the DSP, the Control room and other police station about the incident; that information was also conveyed to the ANF who reached the spot and the recovered contraband along with the apprehended accused and the vehicle were handed over to them through a proper receipt, marked as Exh.CA; that he and Shahid Rasool were later issued commendation certificates (Exh.C) for their good performance.

7. During cross-examination by the defence CW.1 stated that the incident occurred during daytime between 12:00 noon and 2:00 p.m. on 06.07.2012, at the Lillah Interchange which contradicts the time of occurrence mentioned by the Seizing Officer in the FIR as 09.00 p.m.. He categorically stated that no prior information was conveyed to them by the ANF regarding the vehicle in question. He further stated that the ANF officials neither searched the vehicle nor recovered any narcotics in their presence. He clarified that it was the Motorway Police who informed the ANF after the arrest and seizure, and that the ANF officials arrived at the scene nearly four hours later. He also stated that his statement was never recorded by the ANF during the investigation.

8. The statement of CW.1 finds corroboration from official correspondence specifically, letter dated 09.07.2012 issued by the DSP/Chief Patrol Officer, NH&MP, Beat-9, M-2 South, Sial Mor, addressed to the SSP, NH&MP, M-2 (South), Sheikhupura, wherein the successful operation by the Motorway Police, leading to the recovery of narcotics has been acknowledged and appreciated. We are astonished to note that if the recovery was effected by the motorway police during day time, why the time of occurrence was shown as 09.00 p.m. by the ANF and why the motorway police was not cited as witnesses, who were the most important witnesses. Not citing the officials of the motorway as prosecution witnesses by the ANF, amounts to withholding of best available evidence and an adverse inference within the meaning of Article 129(g) of the Qanun-e-Shahadat Order, 1984 would be drawn against the prosecution. It is evident from the above discussed circumstances that there exist two completely opposite versions of the incident, one furnished by the prosecution's witnesses, and the other by the CW.1. The inconsistencies are not merely trivial but go to the root of the prosecution's case, particularly in relation to the time of occurrence, the role of the ANF officials, the recovery of contraband, and the sequence of events. The ANF claims to have intercepted the vehicle at night following prior intelligence, while CW.1 states that he along with Shahid Rasool during the day, in the course of routine patrolling, without any ANF involvement intercepted the motorcar and made the recovery. The contradictions between the two versions cast a deep shadow of doubt on the prosecution's case. It is well-settled law that where the prosecution's case is fraught with material contradictions and is not free from doubt, the benefit thereof must be extended to the accused, not as a matter of grace or concession, but as a matter of right, in accordance with the golden principle of criminal jurisprudence that it is better that ten guilty persons escape than that one innocent suffer.

9. The learned courts below failed to properly appreciate the legal implications of these two contradictory versions and overlooked the serious infirmities arising from the evidence on record. Their findings, therefore, are not sustainable in the eyes of law, having been arrived at without a judicial appreciation of material contradictions and the benefit of doubt that must necessarily flow therefrom in favour of the petitioner.

10. Accordingly, this petition is converted into an appeal and is allowed. The conviction and sentence of the petitioner recorded by the two courts below are set-aside and he is acquitted of the charge levelled against him. He be set at liberty forthwith, if not confined in any other case. JK/Y-1/SC Appeal allowed.