2008 PLP 1549 (MLD)

TASSADUQ HUSSAIN JILANI, J.

Appellant was tried (in the case registered vide F.I.R. No.596, dated 21-10-2001, under section 6/9 C.N.S.A. 1997 Police Station Mughalpura Lahore) on the allegation that on the fateful day at about 6-50 a.m. on a source report the patrol party apprehended the appellant at Garhi Shahu Bridge and a bag containing Charas was recovered from him which weighed 1250 grams each in 16 packets. Vide the judgment, dated 4-1-2003 he was convicted and sentenced to life imprisonment and a fine of Rs.10000 and in default whereof he was undergo S.I. for six months. Benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. During trial the prosecution examined four witnesses. P.W. is Muhammad Yousaf Constable. He was member of the raiding party. According to him on a source report the patrol party reached Ghari Shahu Bridge Lahore and after a short while a person came carrying a "Tora" on his shoulder. On suspicion he was apprehended the tora was searched and 16 packets which weighed 20 Kgs. were recovered. P.W.2 is Muhammad Latif S.-I. who drafted F.I.R. Exh.P.B./1. P.W.3 is Imtan Ahmad Constable who received sealed parcel containing the Charas which he delivered to the office of Chemical Examiner P. W .4 is Rana Ghulam Abbas Inspector who investigate the case. P.W.5 is Muhammad Zulfiqar Constable who kept the case property in the Malkhana for a .while. The accused when examined under section 342, Cr.P.C. denied the prosecution story. According to him he was arrested on 20-10-2001 from his house, that the case property was recovered form one Muhammad Aslam with whom appellant was an employee that after accepting Rupees One lac from the said Muhammad Aslam he was let off and instead Charas was planted on the appellant he gave application to the SSP for transfer of investigation. The investigation was transferred to the DSP Narcotics Malik Muhammad Bashir who declared the appellant innocent. He also produced four witnesses in defence namely D.W.1. Sohail Butt who stated that the case was false and the Charas has been wrongly planted on the appellant. D.W.2 is Muhammad Ilyas who stated that the appellant was innocent, that he along with many respectables went to the police, Inspector and told him about the appellant's character. The Inspector was further told that the appellant was merely an employee with one Muhammad Aslam and it was said Muhammad Aslam who was involved in drug paddling and that the Charas was recovered from him. D. W.3 is Sughran Bibi who stated that no Charas was recovered from the appellant. D.W.4 Malik Muhammad Bashir DSP who at one point of time investigated the case. According to him the accused Madassar was working with one Muhammad Aslam as an employee and that "Aslam on the pretext of putting papers of press in the house of the accused, packed the Charas and put it there. The local police on information conducted the raid but could not lay hand on him in the first raid but on the second one he was arrested". He further added that "I as well as the local police searched to a great extent. The said Aslam could not be got arrested??In my sense Aslam did not appear before me I cannot say with certainty that it belonged to the said Aslam. In my observation, however, I had recorded that it belongs to Aslam".

3. Learned counsel for the appellant in support of the appeal submitted that appellant was 14 years 7 months old when the occurrence took place, that he was innocent, that there is material on record to suggest that appellant was arrested from his house, that the actual culprit was Muhammad Aslam who was let off by police after accepting the bribe, that appellant was declared innocent during investigation and that the prosecution had failed to prove its case beyond reasonable doubt.

4. Learned counsel for the State in all fairness submitted that appellant was below 15 years of age at the time of occurrence which is manifest from the Medico legal Report on record. He added that there is evidence on record to suggest that the case registered for mala fide reasons firstly because it is repellent to common sense that such a huge quantity of Charas could be carried by a minor of appellant's age, that the DSP who conducted investigation declared him innocent and that there is no public witness to corroborate the statements of the two police officers who conducted the raid.

5. Heard.

6. The case was investigated by D.S.P. Malik Bashir D.W.4 who found that the Charas belonged to one Muhammad Aslam, that a raid was conducted to arrest him but without any success and on the second raid instead of the said Muhammad Aslam appellant Muddassar was arrested. Surprisingly that the said accused was not made to join the investigation. It is also unusual that instead of submitting final report in the light of D.S.P.'s finding appellant was challaned on the report of the S.H.O. who was accused of accepting bribe of one lac from Muhammad Aslam. The D.S.P's finding demolishes the prosecution story with regard to the manner and place of alleged raid. There are three other public witnesses who vouch safe for the innocence of the appellant. In the afore-referred circumstances, the conviction of the appellant merely on the statements of two police officers of the raiding party would not be in accord with the safe administration of justice. None from the public was associated with the recovery. Appellant was admittedly less than 15 years of age at the time of occurrence. Learned State counsel has taken a very fair stand and candidly stated that the case was registered for mala fide reasons.

7. For what has been discussed above we are of the view that the prosecution has failed to prove its case beyond reasonable doubt and sustain conviction. The appeal is allowed, impugned judgment is set aside and the appellant shall be released forthwith unless detained in any other case. N.H.Q./M-285/L???????????????????????????????????????????????????????????????????????????????? Appeal allowed.