2023 PLP 58 (YLRN)

MALIK SHAHZAD AHMAD KHAN, J.

This appeal is directed against judgment dated 09.02.2019, passed by the learned Additional Sessions Judge/Judge Special Court CNSA, Mianwali, whereby, in case FIR No.268/ 2018 dated 09.09.2018, registered at Police Station Daud-Khel, Mianwali, under section 9(c) of the Control of Narcotic Substances Act, 1997, the learned trial Court convicted Khalid Mehmood appellant and sentenced him as under: Under section 9(c) of Control of Narcotic Substances Act, 1997 to four years and six months R.I. with fine of Rs.20,000/- and in default of payment thereof the appellant was directed to further undergo S.I. for five months. The benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. Briefly, the accusation levelled in the FIR against the appellant is that on 09.09.2018, Hameed Ullah ASI (complainant / PW-5), along with other police officials was present at Pull Ganda. A person (Khalid Mehmood appellant), came from the eastern side by foot. On seeing the police party, the appellant tried to run away but he was overpowered by the police party. On checking, Charas weighing 1200-grams was recovered from the shopper, which the appellant was holding in his right hand. A separate sample parcel of Charas weighing 60-grams for Chemical Analysis, was prepared. The appellant was interrogated and challaned to face the trial. The charge was framed against the appellant on 15.10.2018, to which he pleaded not guilty so the prosecution was directed to produce its evidence. The prosecution produced five witnesses to prove its case. The learned Additional Sessions Judge/Judge Special Court CNSA, Mianwali, after recording the statement of the appellant under section 342, Cr.P.C. and hearing the arguments, passed the impugned judgment, whereby, the appellant was convicted and sentenced as mentioned and detailed above.

3. Feeling aggrieved of the impugned judgment, the instant appeal has been preferred by the appellant.

4. Learned counsel for the appellant in support of this appeal contends that the appellant is absolutely innocent and he has falsely been implicated in this case by the police; that there are material contradictions in the statements of the prosecution witnesses, which have not been properly appreciated by the learned trial Court while passing the impugned judgment; that safe custody of the sample parcel and the parcel of case property could not be established in this case; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt; that the impugned judgment is result of misreading and non-reading of evidence, available on the record, therefore, the same may be set aside and the appellant may be acquitted from the charge.

5. On the other hand, the learned Deputy Prosecutor General has supported the impugned judgment of the learned trial Court by contending that the prosecution has proved its case against the appellant beyond the shadow of any doubt, therefore, the appellant was rightly convicted and sentenced by the learned trial Court; that the appellant could not establish any mala fide on the part of the prosecution for his false involvement in this case; that the prosecution witnesses stood the test of lengthy cross-examination but nothing favourable to the appellant could be brought on the record; that there is no substance in the present appeal, therefore, the same may be dismissed.

6. Arguments heard. Record perused.

7. It is by now well settled that since the provisions of The Control of Narcotic Substances Act, 1997 provide stringent punishments, therefore, their proof has to be construed strictly and the benefit of the slightest doubt in the prosecution case must be extended to the accused. Reference in this respect may be made to the case of "Muhammad Hashim v. The State" (PLD 2004 Supreme Court 856). Dealing with the same proposition, the Hon'ble Supreme Court of Pakistan held in the case of "Ameer Zeb v. The State" (PLD 2012 Supreme Court 380) that harder the sentence, stricter the standard of proof. Seeking guidance from the abovementioned judgments of the august Supreme Court of Pakistan, we proceed to decide the instant case. We have straightaway noticed that as per prosecution case, the ease property and the sample parcel were handed over by Hameed Ullah ASI (complainant/PW-5) to Fawad Iqbal SI (PW-3), who handed over the said parcels to Muhammad Shahzad Khan 936/HC/ Moharrar (PW-2). Muhammad Shahzad Khan 936/HC/Moharrar (PW-2) stated that he kept the abovementioned parcels in Mall-Khana of the police station intact and on 11.09.2018, handed over the sample parcel of 60-grams to Hameed Ullah ASI (PW-5) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore but Hameed Ullah ASI, while appearing in the witness box as PW-5, did not utter a single word regarding handing over the sample parcel to him by Muhammad Shahzad Khan 936/HC/Moharrar (PW-2) or deposit of the same in the office of Punjab Forensic Science Agency, Lahore. It is, therefore, not determinable in this case that as to where the sample parcel remained after its delivery to Hameed Ullah ASI (PW-5) by Muhammad Shahzad Khan 936/HC/Moharrar (PW-2). Keeping in view the abovementioned prosecution evidence, the safe custody of sample parcel has not been proved in this case beyond the shadow of doubt, which has created serious dent in the prosecution case. Reliance in this respect is placed on the judgments passed by the august Supreme Court of Pakistan in the cases reported as "Amjad Ali v. The State" (2012 SCMR 577) and "Ikramullah and others v. The State" (2015 SCMR 1002).

8. In the light of above discussion, the instant appeal (Crl. Appeal No.10444 of 2019), is allowed, impugned judgment dated 09.02.2019, passed by the learned Additional Sessions Judge/Judge Special Court CNSA, Mianwali, is hereby set aside and Khalid Mehmood (appellant) is acquitted of the charge by extending him the benefit of doubt. The appellant is in custody, he be released forthwith if not required in any other case. SA/K-3/L Appeal allowed.