2006 PLP 2061 (YLR)

SARDAR MUHAMMAD ASLAM, J.

This criminal appeal is directed against the judgment dated 28-2-2003 passed by the learned Judge Special Court, CNSA, 1997 Gujranwala, whereby, he convicted the appellant under section 9(c) of C.N.S.A., 1997 and sentenced to undergo 7 years R.I. with fine of Rs.25,000 in case F.I.R. No.102 dated 28-2-2002 registered under section 9(c) of C.N.S.A., 1997 at Police Station, Satellite Town, Gujranwala.

2. The Investigating Officer after completion of investigation submitted the challan before the learned trial Court. Formal charge was framed. The appellant pleaded not guilty and claimed his trial. The prosecution produced 7 witnesses to prove its case. He did not appear to make statement under section 340(2), Cr.P.C. he also did not produce evidence in his defence.

3. Learned counsel for the appellant contends that the prosecution has failed to prove the culpability of the appellant in the crime beyond reasonable doubt.

4. Learned counsel for the state has opposed the contention of the learned counsel for the appellant and supported the judgment of the learned trial Court.

5. Heard. Record perused.

6. We had also summoned the S.H.O. Police Station Satellite Town, Gujranwala along with record of F.I.R. Nos.81, 82 and 83 registered at police station on 28-2-2002 against the appellant. We have examined the said F.I.Rs.

7. Two K.g. Charas alleged to have been recovered from the possession of the appellant, when he was coming out of his residential house located at Usman Park. The recovery was witnessed by Zulfiqar Ali P.W.2, Ghulam Mustafa P.W.7 (declared hostile) and Saghir Ahmad S.-I. Incharge Police Post Jandiala Baghanwala through Exh.PA. In the F.I.R. No.81 the prosecution case is that on 28-2-2002 the police raided on secret information of appellant's selling narcotics, who escaped his arrest leaving heroin 200 grams which was taken into possession and case was registered against him on 28-2-2002 at 12-20 p.m. Again raid was conduct. This time he also escaped leaving a quantity of 250 grams Charas. Consequently a case was registered at 1-00 p.m. on the same date vide F.I.R. No.82. Another raid was statedly conducted and .222 rifle was taken into possession by the police from the place of raid resulting into registration of case vide F.I.R. No.83 at 1-30 p.m.

8. The prosecution case as set up in Exh.PC that while investigating the afore-mentioned cases registered against the appellant, an informer told the S.-I. Saghir Ahmad about sale of narcotics by the appellant along with a woman namely Azra Begum at Farid Town. On this information raid was conducted and Charas was recovered through Exh.PA.

9. At the very outset we are not prepared to believe the prosecution case for the simple reason that three successive raids were allegedly conducted and cases were registered against the appellant for the recovery of 250 grams Charas, 200 grams of heroin and .222 rifle but every time he managed his escape. It is against the normal human behaviour and is also not understandable that a person escaping in three raids will straightaway proceed to his residential house giving a clear signal to the police to effect his arrest.

10. Zulfiqar Ahmad P.W.2 one of the recovery witness stated that they reached Usman Park at about 2-00 a.m. on 28-2-2002. They conducted the raid at 2-15 a. m. The prosecution case as narrated in the F.I.R. contradicts the statement of P.W.2 where the occurrence is stated to have taken place at 3-35 a.m. and the B F.I.R. was lodged at 4-00 a.m. when the distance of police station is only 3 miles from the place of occurrence. P.W.7 other recovery witness did not support the prosecution case and was declared hostile. Saghir Ahmed S.-I. who conducted the raid allegedly and recovered the narcotics has not been produced and instead P.W.6 Muhammad Ashraf S.-I. appeared proving complaint Exh.PD and recovery memo. Exh.PA, to be in the handwriting of Saghir Ahmad. No reason appear on the record for his non-appearance. In the absence of any proof of non-availability of Saghir Ahmed S.-I. on record secondary evidence through P.W.6 Muhammad Ashraf cannot be deemed to be valid under the law.

11. For what has been discussed above, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt. Resultantly, this appeal is allowed and the judgment of the learned trial Court is set aside. He is accordingly acquitted of c the charge. He be released forthwith, if not required in any other criminal case. N.H.Q./S-458/L????????????????????????????????????????????????????????????????????????????????? Appeal accepted.