2020 PLP 140 (YLRN)

AALIA NEELUM, J.

Muhammad Aslam son of Ali Akbar, Caste Syed, resident of Baig Ghaati, Baba Major Shah near Imam Bargah, Phase Awan, Hanjerwal, Lahore, the appellant was involved in case FIR No.1101-2007, dated 29.10.2007, offence under Section 9(c) of The Control of Narcotic Substances Act, 1997, registered at Police Station, Hanjerwal, Lahore and was tried by the learned Additional Sessions Judge, Lahore. The learned trial court seized with the matter in terms of judgment dated 11.07.2013 convicted the appellant under Section 9(c) of The Control of Narcotic Substances Act, 1997 and sentenced him to undergo rigorous imprisonment for life with the direction to pay Rs.1,00,000/- as fine and in case of default in payment of fine, the appellant would further undergo simple imprisonment for six months. The benefit of Section 382-B of Cr.P.C. was also extended in favour of the appellant. The appellant has assailed his conviction through filing instant criminal appeal.

2. The prosecution story as alleged in the FIR (Ex.PA/1) lodged on the written complaint (Ex.PA) of Sikandar Hayat Nagra, Inspector (PW-4)-the complainant is that on 29.10.2007, the complainant (PW-4) along with Muhammad Younas 10085/C, Riaz Ahmad 3246/C, Muhammad Mansha 11113/C, Shahzad Ahmad 5881/C and Karamat Ali 12817/C was present at Ghousia Milk Shop, Chowk Thokar Niaz Baig in connection with investigation of FIR. No.1100-2007, dated 29.10.2007, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station, Hanjerwal, Lahore. In the meantime, Mazhar Iqbal, Inspector, Dilshad Ahmad, S.I. Muhammad Asghar, ASI and Muhammad Sabir, ASI reached there and they also accompanied them whereas the accused-Muhammad Aslam was under custody and during interrogation, the accused-Muhammad Aslam led the police party to his residential room and got recovered 40 packets of charas weighing 50 Kilograms, which was taken into possession by the complainant (PW-4) vide recovery memo (Ex.PB). Out of the recovered substance, a sample of 10 grams charas from each packet was separated for narcotic analysis after embossing a seal of H.M. Thereafter, the complainant (PW-4) drafted a complaint (Ex.PA) and sent the same to the police station through Riaz Ahmad 3246/C for registration of formal FIR. On the basis of the written complaint (Ex. PA), formal FIR (Ex.PA/1) was chalked out by Ghulam Sabir, ASI (PW-1). Thereafter, the complainant (PW-4) being Investigating Officer prepared rough site plan of the place of recovery (Ex.PC) and recorded the statements of the prosecution witnesses under Section 161 of Cr.P.C.

3. Having found the accused, Muhammad Aslam guilty, the Investigating Officer (PW-4) prepared report under Section 173, Cr.P.C., while placing the name of the accused, Muhammad Aslam in Column No.3 of the Challan and sent the same to the court of competent jurisdiction.

4. The learned trial court formally charge sheeted the appellant on 31.08.2009, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as five (05) witnesses. Sikandar Hayat Nagra, Inspector (PW-4) is the complainant as well as Investigating Officer, Ghulam Sabir, ASI (PW-1) chalked out formal FIR whereas Shahzad Ahmad 5881/HC (PW-5) is witness of the recovery.

5. On 10.12.2012, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering the report of the Chemical Examiner Punjab, Lahore (Ex.PD).

6. The appellant was also examined under Section 342, Cr.P.C. wherein he opted to lead defence evidence but refused to appear as his own witness in terms of Section 340(2), Cr.P.C. in disproof of the allegations levelled against him and while replying to a particular question that why this case was against him and why the PWs had deposed against him, Muhammad Aslam (the appellant) made following deposition:-- "I have previous enmity with Murawat Ali Shah who was SSP at that time when the above said case was registered against me and I have also enmity with Pappu Shah who is also brother of Murawat Ali SSP. That one lady namely Bushra Bibi who was relative of Murawat Ali Shah SSP has Friendly relations with me and due to this reason, Murawat Ali Shah SSP became infurious and nursed grudge against me. Both Murawat Ali Shah and Pappu Shah warned me many times to avoid relations with Bushra Bibi but I paid no heed and due to this reason, CIA Staff of Police Station Ichhra, Lahore arrested me in a false case and detained me for 12-days in CIA Center, Ichhra, Lahore. After 12-days, the above said case was registered against me and police officials being subordinate of high-ups gave false evidence against me."

7. After hearing the arguments advanced by the learned counsel appearing on both sides, the learned trial court, while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.

8. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General and have minutely perused the record available on the file.

9. After a careful scrutiny of the materials on record, we come to the conclusion that the prosecution has not established safe custody of parcels of samples drawn from recovered substance and remaining case property. Sikandar Hayat Nagra, Inspector (PW-4)-the complainant deposed during his court statement that:- "

The accused present in the court was already under my custody who disclosed and led us to his own residential room near Amam Bargah Amber Awan and from underneath the carpet 40-packet charas was got recovered, which is P-1. I separated 10 grams charas from each recovered packet for Chemical Examination. The recovered Charas and samples were converted into sealed parcels

" Sikandar Hayat Nagra, Inspector (PW-4) the complainant has not stated a single word that where he kept parcels of samples drawn by him at the spot and remaining case property. Whereas, Muhammad Boota, 5686/H.C. (PW-2)-the Moharrar deposed during his court statement that: "On 29.10.2007, I was posted as Moharrar at Police Station Hanjerwal, Lahore. On the same day Sikandar Hayat Inspector handed over to me 40 sealed sample parcels of charas

"

10. It is the case of the prosecution that the appellant disclosed and led to recovery of contraband substance charas weighing 50 Kilograms from the underneath the carpet from his residence, which was in 40 (P-1/1-40) packets, each packet consisted of charas upon weighing 1200-grams and from each packet sample of 10-grams was taken by Sikandar Hayat Nagra, Inspector (PW-4)-the complainant. The prosecution has to establish by cogent evidence that the alleged parcels of samples of charas drawn from the narcotic substance and remaining contraband substance recovered from the residence of the accused was kept in safe custody. It is clear that Sikandar Hayat Nagra, Inspector (PW-4) the complainant has not stated that where parcels of samples and case property remained. There is no explanation for this failure to establish safe custody of parcels of samples and remaining contraband substance from the time of seizer on 29-10-2007 till its deposit with the Office of Chemical Examiner, Lahore. In this back ground, recovery of alleged contraband becomes doubtful. It is not clear where the samples and remaining contraband were kept by Sikandar Hayat Nagra, Inspector (PW-4) the complainant. Mere oral evidence of the prosecution witnesses i.e Sikandar Hayat Nagra, Inspector (PW-4)-the complainant and Shahzad Ahmed, 5881/H.C. (PW-5) as to the recovery of charas weighing 50-kilograms does not discharge heavy burden of responsibility, which lies on the prosecution. It is considered opinion of the court that the aforesaid inconsistencies and contradictions considered cumulatively do lead to irresistible influence that the prosecution has not been able to prove safe custody of the parcels of samples drawn from the alleged recovered substance through material and cogent evidence.

11. There is another aspect of the case of the glaring contradiction in the statements of the prosecution witnesses, which also makes the case of the prosecution highly doubtful. Muhammad Boota, 5686/H.C. (PW-2)-the Moharrar deposed during his court statement that on 29-10-2007, he received 40 parcels of samples of 'Charas' and on 02.11.2007 he (PW-2) handed over forty (40) parcels of samples of 'Charas' to Muhammad Younas 1085/Constable (PW-3) for onward transmission to the Office of Chemical Examiner, Lahore. Contrary to above deposition of Muhammad Boota, 5686/H.C. (PW-2)-the moharrar, Muhammad Younas 1085/Constable (PW-3) deposed during his court statement that on 02-11-2007 he (PW-1) received eighty (80) parcels from Muhammad Boota, 5686/H.C. (PW-2)-the Moharrar which he delivered in the office of Chemical Examiner, Lahore on the same day dated 27-02-2015. There is, thus, no evidence to connect the Chemical Examiner report (Ex.PD) with the substance that was seized from the possession of the appellant as Muhammad Boota, 5686/H.C. (PW-2)-the Moharrar has specifically deposed that he handed over forty (40) parcels of samples of 'Charas' to Muhammad Younas 1085/Constable (PW-3) for onward transmission to the office of Chemical Examiner, Lahore, but Muhammad Younas 1085/Constable (PW-3) stated that he deposited eighty (80) parcels with the office of Chemical Examiner. Whereas, report was about forty (40) parcels of samples. Whether the parcels of samples received by Muhammad Younas 1085/Constable (PW-3) from Muhammad Boota, 5686/H.C. (PW-2)-the Moharrar and deposited in the office of Chemical Examiner, Lahore relate to the alleged contraband seized from the residence of the appellant has not been proved. It is admitted fact that Muhammad Boota, 5686/H.C. (PW-2) the Moharrar had not deposed a single word in this respect that he handed over eighty (80) parcels of the samples drawn from the alleged substance recovered from the residence of the appellant for onward transmission to the office of Chemical Examiner, Lahore. This contradiction went to the root of the case. The said contradiction in the deposition of the aforementioned police officials cannot be stated to be minor and irrelevant in the absence of the positive and material evidence.

12. So after due consideration of the facts and circumstances of the case and point discussed above, we come to the conclusion that the prosecution has not been able to prove the charge levelled against the appellant. Since there was inherent illegality in the matter, the conviction cannot be upheld and findings in this regard are required to be set aside and the same are set aside and as a consequence whereof, the appeal is accepted and Muhammad Aslam, the appellant is acquitted of the charge in case FIR No.1101-2007, dated 29.10.2007, offence under Section 9(c) of The Control of Narcotic Substances Act, 1997, registered at Police Station, Hanjerwal, Lahore. The appellant-Muhammad Aslam is directed to be released forthwith, if not required in any other case. SA/M-110/L Appeal accepted.