2002 P Cr (PLP)

IJAZ AHMAD CHAUDHARY, J.‑‑‑ This criminal appeal has been directed against the judgment, dated 3‑7‑2001 passed by the learned. Sessions Judge, Mianwali, whereby the said learned Judge convicted the appellants, namely, Rafi Ullah Khan, Khalil‑ur‑Rehman and another, under section 9(b) of Control of Narcotic Substances Act, 1997 sentenced them to undergo rigorous imprisonment for one year with a fine of Rs.10,000 each in default whereof to further undergo R.I. for seven days.

2. Brief facts of the case are that F.I.R. No.86, dated 10‑4-2001 was lodged under, section 9(b) of the Control of Narcotic Substances 1997 with Police Station Wan Bhachran, District Mianwali on complaint of Akhtar Nawaz, S.‑I., who stated in the said complaint that on 10‑4‑2000 he alongwith the other police officials, arrested Inayat Ullah in a narcotics case, who disclosed that he had purchased the same from Muhammad Saleem, and at about 11‑00 a.m. on receipt of information that the said Muhammad Saleem is present under a Keekar tree, he raided and apprehended Saleem, who was having a shopping bag in his hand and on the, search of the said bag it was found that the opium weighing 520 grams was available in it. He separated 10 grams for chemical analysis. Subsequently, after taking in possession the said opium he lodged complaint Exh. P.A. upon which the above-said F.I.R. was registered against.

3. After registration of the formal F.I. R. investigation into the crime commenced and appellants and their co‑accused were arrested. During the investigation they were found guilty and challan against all the three was submitted in the Court. The learned trial Judge while concluding the trial passed the abovementioned sentence against the appellants and their co‑convict. Hence this appeal.

4. Learned counsel for the appellants contends that it is a case of no evidence. Nothing was recovered from the appellants and their conviction under section 9(b) of the C.N.S. Act, 1997 is based on surmises and conjectures and is not supported by any material evidence available on record. They have been involved in this case by the police as brother of Rafi Ullah was murdered by the police in a fake encounter and he filed a private complaint against the Police Officers, therefore, the instant case has been registered against the appellants, to pressurize them to withdraw from pursing the said complaint.

5. On the other hand learned counsel for the State has opposed this appeal on the grounds that the judgment is based on sound reasonings and 'P.W.4 and P.W.5 have specifically stated against the appellants to the extent of their involvement in the business of dealing with the narcotic substances.

6. We have heard argument of both the sides and perused the record. The only evidence available against the appellants, which has resulted into their conviction is the statement of Ghulam Abbas, Constable, who has claimed that he alongwith Amir Abdullah Khan/F.C. had gone to the quarter of Rafi Ullah, accused where Khalil‑ur‑Rehman, accused was present alongwith Ahmed Nawaz and also Muhammad Saleem. who were talking about the sale and purchase of the narcotics. Ahmed Nawaz and Muhammad Saleem handed over the money for the purchase of narcotics to Khalil‑ur‑Rehman, appellant in his presence. P.W.5 another Constable also made similar statement with an addition that Ahmed Nawaz gave Rs.4,000 to Rafi Ullah and Khalil‑ur‑Rehman, accused for the purchase of narcotics. The only evidence collected by the police during the investigation are the statements of these two police officials. Ghulam Abbas P.W.4 has not stated the amount which was paid to Khalil‑ur‑Rehman, appellant but Amir Abdullah Constable has stated that an amount of Rs.4,000 was paid by Ahmed Nawaz to Saleem alias Cheemoo, co‑convict to Rafi Ullah and Khalil‑ur‑Rehman. Hence both the witnesses are found in contradiction to this fact and the statements made by both the witnesses are found in contradiction to this fact and the statements made by both the witnesses is not sufficient to connect the appellants with the commission of crime in question and are also not sufficient to hold them guilty in the case under section 9(b) of the C.N.S. Act, 1997. Moreover, their statements are not consistent on the material points during the cross‑examination. Both the witnesses are police Constables and their presence at the spot at the relevant time as well as the day has also not been sufficiently explained by them. We are not inclined to accept their statements being contradictory to each other and due to the reason that they could not explain their presence at the spot. Even their statements do not make out a case against the appellants for their conviction. Rafi Ullah, appellant in his statement under section 342, Cr.P.C. in reply to a question as to why this case against you and why the P.Ws. have deposed against you, replied as under:‑‑ "On 4‑9‑1999 the police of Mianwali District headed by Naveed Anwar, D. S. P. and Muhammad Aslam P. W. raided our house and Asmat Ullah and Safi Ullah my brothers were injured in that police encounter who died later on and I had filed a private complaint against the police and the police involved me in this false case to pressurize me to withdraw the complaint. The police officials made their statement against me as being Police Officers/officials." This statement of the accused/appellant shows clear mala fide of the police for the false involvement of Rafi Ullah and Saif Ullah, real brother of the appellant against the police officials. Answer of Rafi Ullah appellant has been supported by the private complaint Exh.D.A. which supports version of the said appellant. Khalil‑ur‑Rehman and Rafi Uilah appellants are seemed to have been involved falsely in this case by the police and the possibility of mala fide in lodging the case against them cannot be ruled out. The prosecution has miserably failed to prove are against the appellants and the conviction and sentence passed against them is not liable to be maintained. Therefore, the conviction and sentence is set aside by accepting appeal of the appellants. They both ire acquitted of the charge levelled against them. They are directed to be released from jail forthwith, if not required to be detained in any other case. H.B.T./R‑84/L Appeal accepted/Order accordingly.