2015 PLP 279 (SCMR)

IQBAL HAMEEDUR RAHMAN, J.

The instant appeal by the leave of the Court arises out of a Jail Petition filed by the appellant and impugns the judgment dated 2-6-2009 of a Division Bench of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Criminal Appeal No.128 of 2007 whereby the High Court has maintained the conviction and sentences of the appellant passed by the trial Court in case F.I.R. No.386/2006 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter to be referred as "the Act").

2. The appellant was charged under section 9(c) of the Act for recovery of 13450 gms of Charas from a vehicle driven by him. The case of the prosecution was that on 6-9-2006 at about 9-30 p.m. Abdul Majeed, S.I., along with other Police officials was on patrol duty when he received a spy information that the appellant is proceeding in Car No.4899/MNF from Uch Sharif towards Ahmarpur East with huge quantity of Charas. He was intercepted at Police Naka and on search of the vehicle from secret boxes in the lower portion of the car Charas weighing 13450 gms was alleged to have been recovered. Out of the recovered substance only 10 gms was taken and sent for chemical analysis. On receiving of the affirmative report of the Chemical Examiner, a report under section 173, Cr.P.C. was prepared and Challan was submitted in the Court of Additional Sessions Judge, Ahmadpur East, wherein along with Police officials as recovery witnesses one public witness namely Falak Sher had also been cited. After the framing of charge, the prosecution presented its case by adducing its evidence, who were all Police officials except Falak Sher who was public witness. The appellant in his statement under section 342, Cr.P.C. was put a question as under:-- "Q. It is in the prosecution evidence that on 16-9-2006 you were apprehended by Abdul Majeed SI along with other police officials in Malkani Basit when you were driving Car No.MNF/4899 and upon search you got recovered charas 13450 grams from the secret boxes attached in the lower portion of the car. What do you say about it? A. It is incorrect. Nothing was recovered from me. Muhammad Akram 369/c P.W.3 deposed the weight of alleged recovered charas as 13500 grams. I have been falsely implicated in this case. The car does not belong to me. Fake recovery has been shown by the police just to show their efficiency and to save the actual culprits." Thereafter, on conclusion of the trial, the trial Court vide its judgment dated 8-5-2007 convicted the appellant under section 9(c) of the Act and sentenced him to imprisonment for life with a fine of Rs.100,000 or in default thereof to further undergo six months' S.I. On appeal, the High Court maintained the conviction and sentences of the appellant while dismissing his appeal. Against the said judgment of the High Court, the appellant approached this Court by filing J. P. No.838/2009 wherein leave was granted vide order dated 4-11-2009.

3. The learned counsel for the appellant at the very outset vehemently argued that the appellant had been falsely implicated by the Police. Both the Courts below have failed to take into consideration that Falak Sher, P.W.1, in categorical terms had not supported the prosecution case by stating that he was present with Abdul Majeed S.I. and other Police officials at Uch Sharif Road when they were on patrol duty. The car was stopped but nothing was recovered.

4. On the other hand, learned Additional Prosecutor-General for the State supported the judgments of the Courts below and stated that a huge quantity of Charas weighing 13450 gms had been recovered from the appellant and the same has duly been substantiated by the prosecution through its evidence. It was further submitted that this Court has held that evidence of Police officials in the cases of narcotics is to be taken into consideration.

5. We have heard the learned counsel for the appellant as well as learned Additional Prosecutor-General for the State and have gone through the material available on the record.

6. The appellant in the instant case from the very inception of the proceedings had taken a stance that the Police has initiated a fake recovery in order to show their efficiency and to save the actual culprits. The appellant in his statement under section 342, Cr.P.C. had categorically alleged that the recovery has been planted upon him by the Police in order to show their efficiency and to save the actual culprits. We have further, observed that the prosecution started its case by adducing the evidence of Falak Sher, P.W.1, who had categorically stated that he was working as a Razakar with Police Station Ahmadpur East and on 16-9-2009 he was present with Abdul Majeed S.I. and other Police officials at Uch Sharif Road on patrol duty. He further stated that the car was stopped and searched but nothing was recovered on account of which he had been declared as hostile. Thereafter, the prosecution proceeded with its case by adducing the evidence of other P.Ws. who were all Police officials and on submission of Chemical Examiner's report the prosecution's case was closed. We have also observed that Muhammad Akram, P.W.4, had stated in his cross-examination that, "...... The driver was dragged out by me from the car. Recovery of charas was not seen by me as I had caught hold the accused......" Even Abdul Majeed, S.I., who was one of the recovery witnesses and also the I.O. of the instant case, appeared as P.W.2 and stated that, "During investigation it came to my notice that the recovered charas was owned by Rasheed Ahmad son of Samandar Khan......". It is apparent that the public witness associated with the recovery of the contraband had not supported the prosecution case, which creates a dent in the veracity of the recovery being effected. On account of this, we find that sufficient dent has been created into prosecution case against the appellant as a result of which serious doubts have arisen the benefit of which goes in favour of the appellant. The Shariat Appellate Bench of this Court in a similar case titled Aftab Ahmed v. The State (Criminal Appeal No.50(S)/1988) had held as under:-- In such view of the matter, it is held that when a public witness has not supported the prosecution case then it may ordinarily be difficult to rely upon the evidence of Police officials alone for convicting and sentencing an accused.

8. It has further been observed by us that P.W.2, Abdul Majeed S.I., I.O. of the cases, stated in his examination-in-chief as under:-- "......There were 13 balls of the charas. The 13 balls were joined together. Chards PI was weighed and it was 13450 gms. 10 gms of charas from the recovered charas was separated for chemical analysis which was sealed into a parcel....." While the recovery witness namely Muhammad Akram, P.W.4, stated in his examination-in-chief as under:-- ".......There were 9 or 10 pieces of charas. The charas was weighed. It was 13-1/2 kilograms. 10 grams was separated from one piece for chemical analysis and sealed in a parcel. The remaining charas was sealed in 4 or 5 parcels by the I.O. Thereafter, we arrested the accused and put the charas in official vehicle and reached the police station." Further in cross-examination, Muhammad Akram, P.W.4, stated as under:-- "......It is correct that the parcel containing PI consists of more than 100 pieces. It is incorrect to suggest that the parcel does not contain charas......." Considering the above said evidence of recovery adduced by the prosecution, it is evident that separate samples have not been taken from each and every packet for chemical analysis rather only one sample weighing 10 gms had been separated and sent for chemical analysis, and it has also not been specified as from which packet the sample was separated, as such the case of the appellant also falls within the domain of Ameer Zeb v. The State (PLD 2012 SC 380).

8. In the circumstances, the prosecution has not been able to substantiate its case regarding the recovery of Charas from the appellant, which raises a serious doubt the benefit of which goes to the appellant.

9. In the above perspective, we are of the considered view that the judgments of both the Courts below cannot sustain in the eye of law. Resultantly, we allow this appeal, set aside the conviction and sentences of the appellant and acquit him of the charge levelled against him. He is ordered to be set at liberty if not required in any other case. MWA/G-9/SC Appeal allowed.