2009 PLP 1837 (YLR)

SAIF UR REHMAN, J.

This appeal has been directed against judgment dated 24-9-2005 passed by the learned Addl: Sessions Judge Vehari in case F.I.R. No.115 dated 24-4-2004 registered under section 9-C CNSA at Police Station Vehari whereby the appellant was found guilty of possession of 6 Kgs. of Charas, convicted accordingly and sentenced to undergo R.I. for 10 years and fine amounting to Rs.10,000 ten thousand.

2. The prosecution story as contained in the F.I.R. is that Rana Shakeel Ahmad S.-I./S:H.O. was present on patrol duty along with police officials mentioned therein when he received spy information that a person who used to deal in narcotics will bring Charas from Burewala and pass through Chak No.27/W.B. The complainant along with the accompanying police officials reached bus stand Chak No.27/W.B. A person alighted from Vehari bound bus holding a shopper in his hand. He was overpowered and he disclosed his name as Abdul Razzaq son of Taj Muhammad (accused) resident of Burewala. On search of the bag being held by him (accused), 6 packets of Charas weighing 1 Kg each total coming to 6 Kgs were recovered. Charas weighing 10 grams was separated from each packet and made into sealed parcel which along with the remaining bulk was taken into possession.

3. At the inception of the trial, the accused was formally charged under section 9-C CNSA 1997 to which he pleaded not guilty.

4. The prosecution examined 6 witnesses. Niaz Ahmad P.W.1 carried the sealed parcels on 14-5-2004 to the office of Chemical Examiner. Muhammad Aslam P.W.2 received the case property from Muhammad Rafique S.-I. (Investigating Officer) and retained the same in Malkhana till 24-4-2004 when the sealed parcels containing samples were delivered by him to Niaz Ahmad for their onward transmission to the office of Chemical Examiner. Saleem Raza P.W.3 is eye-witness of recovery of Charas from the accused according to whom the same was taken into possession by the complainant vide memo. Exh.PA, Ahmad Javaid P. W .4 formally recorded F.I.R. Exh.PB/1 on receipt of complaint Exh.PB on 24-4-2004 Shakeel Ahmed entered the witness-box as P.W.6 and reiterated the prosecution story as given in the F.I.R. According to him he took the Charas P.1 into possession vide memo. Exh.PA. He drafted the complaint Exh. PB and dispatched the same to the Police Station for recording of F.I.R.

5. Investigation of the case was conducted by Muhammad Rafique S.-I. P.W.5. He prepared rough site-plan Exh.PC of the place of recovery and completed the investigation.

6. Report of Chemical Examiner Exh. PD was produced to prove that the samples received in office of Chemical Examiner were found to contain Charas.

7. Statement of the appellant was recorded under section 342 Cr.P.C. He controverted the allegation levelled against him by the prosecution and explained cause of registration of the case as under:-- "I am innocent I am poor mason. I reside in Marzipura Burewala with my family. On 24-4-2004 I was present in my house at about 1 a.m. My door was knocked. I opened the door. Shakeel Ahmad S.-I. along with his subordinates was present outside. Muhammad Rafique son of Siddique Councillor of that area, Sadiq son of Imam Din, my neighbour, Muhammad Yaqoob son of Nawab Din, Abdul Aziz son of Wali Muhammad Abdul Hameed son of Karam Din residents of my street were also present there. Shakeel Ahmad searched me and my house. Nothing was recovered from us. Then he asked me to accompany him to Vehari. Muhammad Rafique Councillor of the Mohallah and other people present there asked me that why he is taking me to Vehari and they told him that Abdul Razzaq is a mason and he is innocent. Shakeel Ahmad told them that he will leave him tomorrow but instead of setting me at liberty he challaned me in this case. Actually one Rasheed relative of Shakeel Ahmad lives in our Mohallah. I had a quarrel with him because he did not pay my wages and due to this Shakeel Ahmad in connivance with Rasheed challaned me in this case. Nothing was recovered from me. The recovery has been planted upon me by Shakeel Ahmad to show his efficiency."

8. The appellant did not opt to make statement on oath as envisaged under section 340(2) Cr.P.C. He however, produced Muhammad Rafique in his defence as D.W.1 who supporting the defence plea deposed that on 24-4-2004 at 1 a.m. Shakeel Ahmad S.-I. came along with his subordinates and knocked at the door of accused. He opened the door. The police searched the person of Abdul Razzaq and the whole of the house in his presence and presence of the witnesses. Nothing was recovered from the accused or his house. The police took Abdul Razzaq with them promising that he would be set at liberty the next day. However, they learnt that accused had been challaned falsely in this case. Wife of the accused moved application against Shakeel Ahmad.

9. Learned counsel for the appellant contended that case against the appellant was false. In fact house of the appellant situated at Burewala was raided by the complainant and the remaining Police Officials of police station Sadar Vehari in utter disregard of the prescribed procedure and law. They were not competent to do so, hence, act of the complainant was coram non judice and the subsequent proceedings were void ab initio. Nothing was recovered from the appellant. On the same night raid was conducted on the house of Muhammad Jameel another resident of Burewala from whom huge quantity of Charas was recovered, a part of which, was foisted against the appellant. Numerous applications were moved before the senior police officers and Government Functionaries. However, the innocent appellant could not get any relief. The prosecution evidence was replete with contradictions and the discrepancies were fatal to the charge. The prosecution had miserably failed to bring home guilt to the accused. The learned trial Court failed to appreciate the law and evidence, hence, the appellant was to be acquitted.

10. Conversely, the learned D.P.G. contended that the prosecution witnesses had no animus to implicate the appellant falsely in this case. The appellant was caught red handed at the place of recovery shown by the police. The witnesses of recovery made statement consistent to the story mentioned in the F.I.R. No material contradiction existed on the record. The charge stood proved beyond any shadow of doubt and the impugned judgment was unexceptional.

11. We have examined the record minutely in the light of respective contentions of the parties and relevant law. At the very out set we find that there is no explanation on the record as to where was the case property kept by Rana Shakeel Ahmad complainant after taking it into his possession. He remained silent about this fact during his statement. Muhammad Aslam P.W.2, Moharrer of the Police Station who retained the samples in the Malkhana deposed that 6 sealed parcels were handed over to him by Muhammad Rafique to be kept in Malkhana. He also mentioned nothing as to where was the remaining Charas seized by Shakeel Ahmad S.-I./S. H.O.

12. The logical conclusion shall be that no steps were taken for keeping the case property in safe custody. Only the samples were delivered to Muhammad Aslam P.W.2 and those, too, by Muhammad Rafique S.-I. The link is also missing as to who delivered these sealed parcels to Muhammad Rafique.

13. This lapse could be ignored. However, learned counsel for the appellant took us through the statement of Niaz Ahmad P.W. 1 and Muhammad Aslam P.W.2. Both of them had stated before the Investigating Officer when examined under section 161, Cr.P.C. that 15 parcels were given to them. However during their examination-in-chief both spoke about receipt of 6 sealed parcels. Niaz Ahmad was got confronted with his statement under section 161, Cr.P.C. Exh.D.B and Muhammad Aslam P.W.2 in the same manner with Exh.DA where receipt of 15 parcels was shown by each of the two witnesses. During cross-examination when Investigating Officer Muhammad Rafique P. W 5 was .inquired about this statement he deposed that Exhs. DA and DB were correctly written by him. The recording of these statements, therefore, by the Investigating Officer stood proved within the meaning of section 162 Cr.P.C. and could be used by the accused for contradicting the P.Ws.

14. It, therefore, was proved that Muhammad Aslam stated before the Investigating Officer that he had received 15 parcels from him and delivered the same to Niaz Ahmad P.W. the receipt of which was acknowledged by Niaz Ahmad during his statement under section 161 Cr.P.C. However, they made different statements while appearing as P.W. 1 and P.W.2 in the trial.

15. The above referred lapse of the complainant about disposal of the case property in the light of statements of P.W.1 and P.W. 2 before the police that they received 15 parcels and their failure to provide sufficient explanation, when put to test, creates serious dents in the charge.

16. It is case of the defence that he arrested the appellant from Burewala which fact is denied by the complainant. However, during cross-examination Saleem Raza P.W.3 deposed. "It is correct that prior to the recovery from the accused we conducted raid, at his house Burewala at about 2-30 a.m. night. Likewise, the position about the raid on the house of Jameel. However, I was not included in the raiding party at the time of raid conducted at the house of Jameel. At that time when we conducted raid at the house of Abdul Raazaq appellant, Arif and Shakeel Ahmad P.Ws. were also with me. "

17. Though the appellant could not produce confidence inspiring evidence' in support of this defence plea yet he successfully extracted the above facts from the prosecution witnesses leading full support to his version.

18. In view of the above, we find that the appellant succeeded in impeaching the credibility of the prosecution witnesses by creating doubts in prosecution story the benefit of which was to be given to the appellant.

19. This appeal resultantly is accepted. The impugned judgment, conviction and sentence are set aside and the accused is acquitted of the charge. He shall be released forthwith, if not required in any other case. H.B.T./A-181/L Appeal accepted.