2018 PLP 1425 (SCMR)

ASIF SAEED KHAN. KHOSA, J.

Abdul Basit appellant was booked in case FIR No. 49 registered at Police Station Anti-Narcotics Force, Lahore on 26.06.2007 in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and after a regular trial he was convicted by the trial court for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and was sentenced to imprisonment for life and fine which conviction and sentence of the appellant were subsequently upheld and maintained by the High Court and an appeal filed by the appellant in that regard was dismissed. Hence, the present appeal by leave of this Court granted on 09.11.2016.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

3. According to the prosecution ten kilograms of charas contained in ten separate packets weighing one kilogram each was recovered from the appellant's possession when he was driving a motorcycle and thereafter upon disclosures made by the appellant eighty kilograms of charas contained in eighty separate packets weighing one kilogram each and 200 kilograms of charas contained in 200 separate packets weighing one kilogram each had been recovered from some other places to which the appellant had allegedly led the police party. After the alleged recoveries samples had been taken from each and every packet of the recovered substance and all such samples had subsequently been tested positive by the Chemical Examiner. The record of the case, however, shows that as far as the last two recoveries were concerned Muhammad Ehsan Azam, A.S.I. (PW3), one of the recovery witnesses, had categorically stated before the trial court that those two recoveries did not pertain to the appellant and the substance recovered through those recoveries was owned by one Ameer Ali and not by the present appellant. As regards the first recovery effected at the time when the appellant was driving a motorcycle we have observed that Muhammad Akram, S.I. complainant (PW4) had stated before the trial court in black and white that after the said recovery a recovery memo had not been prepared at the spot. The recovery witness namely Muhammad Eshan Azam, A.S.I. (PW3) had also deposed before the trial court on the same lines vis-a-vis the first recovery and he had gone on to add that all the memoranda of recovery were prepared in this case at the last place of recovery. This was surely a serious lapse on the part of the investigating agency and the recovery officer and because of such lapse there was no guarantee that before preparation of the memorandum of recovery vis-a-vis the first recovery the substance recovered had not been tampered or interpolated with or that the weight of the substance recovered was the same as alleged. It has already been observed above that according to the recovery witnesses produced by the prosecution the last two recoveries did not pertain to the appellant and as stated by the complainant as well as one of the recovery witnesses the memorandum of recovery pertaining to the first recovery had not been prepared at the spot but at some subsequent stage and place. In view of such infirmities in the case of the prosecution against the appellant the benefit of doubt has to be extended to him. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. MWA/A-12/SC Appeal allowed.