2016 P Cr (PLP)

QALANDAR ALI KHAN, J.

Noor Zali Shah, appellant, was convicted under section 9(c), Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life with fine of Rs.2 lacs or in default of payment of fine to suffer six months' S.I; in case FIR No.410 dated 28.4.2011 under section 9(c), C.N.S.A. Police Station, MRS, Kohat, by the learned Sessions Judge/Judge Special Court, Kohat, vide judgment and order dated 31.3.2012.

2. Through the present appeal, the appellant has impugned the said judgment/order, inter alia, on the grounds that the prosecution miserably failed to prove its case against the appellant beyond shadow of doubt; that benefit of doubt was not extended to him by the learned trial court; that statements of PWs were not consistent and full of material contradictions; that no recovery was effected from the accused/appellant and that there was no circumstantial evidence against the accused/appellant.

2. Facts of the case as per FIR are that Attique Hussain SHO/complainant received information through an undisclosed informer that accused/appellant, who was earlier arrested, was concealing his present address of Paracha Town where he had kept 'charas' in huge quantity, regarding which there was apprehension that the same will be removed therefrom if no immediate action was taken. According to the FIR, house of the accused/appellant was raided and during house search, a plastic sack containing packet of 'chars gardha', weighing 44.451 K.Gs in 41 packets, was recovered. The complainant/SHO separated 41 packets each of 4 grams as sample for analysis to the FSL and rest of the recovered charas was also sealed on the spot, leading to registration of the case under section 9(c), C.N.S.A. against the accused/appellant. On completion of investigation by the police, challan was submitted to the court of learned Sessions Judge/Judge Special Court, Kohat, where charge was framed, followed by trial of the accused, during which, as many as 8 PWs were examined by the prosecution, and after the prosecution closed its evidence, statement of the accused/appellant was recorded under section 342, Cr.P.C. as well as his statement on oath under section 340(2), Cr.P.C. Vide impugned judgment, the learned Sessions Judge/Judge Special Court, Kohat, found the accused guilty of the commission of offence charged with and convicted him under section 9(c), C.N.S.A., and sentenced him to imprisonment for life with a fine of Rs.2 lacs, and in default of payment of fine, to suffer six months' further S.I.

3. Arguments of the learned Additional Advocate General and learned counsel for the accused/appellant heard and record perused.

4. It may be observed, at the outset, that the accused/appellant was not present in the house when so-called raid was conducted and alleged recovery was made from the house. In order to connect the accused/appellant with the offence/recovery, the prosecution produced Nauman Ali Shah son of Muhamad Ali Shah (PW-1), who claimed ownership of the house, which was given on rent to the accused/appellant on monthly rent of Rs.7000/- for the last one year. He is, however, neither witness to the recovery nor in possession of written rent deed. In any case, recovery was allegedly made from the house, but no independent witness was arranged/ associated at the time of alleged recovery, therefore, it was incumbent upon the prosecution to prove ownership of the recovered `charas' and its possession by the accused/appellant, on the one hand, and its recovery, as alleged, from the house in question, on the other; while except PW-1 all the PWs are police officials, including complainant, Attique Hussain (PW-5), Investigating Officer (PW 7) and marginal witness Sakhiur Rehman (PW-8). In the given circumstances, when no search warrant was obtained in compliance with the mandatory legal provision, neither witnesses were accompanied at the time of recovery in compliance with the provision of section 103, Cr.P.C., the testimony of the PWs is to be accepted with great care and caution, while, of course, keeping in mind the fact that prosecution is always required to prove its case without any shadow of doubt. A close scrutiny of evidence of the prosecution would reveal material contradictions in the statements of PWs, particularly that of important witnesses of the prosecution like complainant, I.O. and the marginal witness. The complainant (PW-5) denied the suggestion of meeting the accused prior to his departure from police station on the same day, and stated that he was informed by source/informer about arrest of the accused in another case, but in his same statement the complainant/SHO stated that as SHO he always has the knowledge of the persons in the lock-up of police station. The marginal witness, Safiur Rehman (PW-2) narrated a different story by saying that he was present in the P.S. when the Seizing Officer left the Police Station but he did not remember whether accused Noor Zali Khan was present in the Police Station at the time when they departed from the Police Station. He, however, admitted that he had seen accused facing trial in the Police Station, on the day of occurrence. There is also glaring material contradiction with regard to the recovered charas, which has been shown `gardha' in the FIR and elsewhere in the case but PW-5 himself contradicted the record to that effect by admitting that the recovered contraband was in different solid pieces. This admission on the part of the complainant/Seizing Officer would certainly create serious doubt about the nature of 'charas' recovered and the sample separated therefrom. The complainant admitted that inmates of the house were present at the time of raid and alleged recovery of 'charas' but statement of none of them was recorded. In order to justify non-obtaining of search warrant of the house, complainant said that there was apprehension that `charas' will be removed if immediate action was not taken; but the reason furnished for such an omission, considered detrimental to the case of the prosecution, appears far fetched when seen in the light of the fact that the house was inhabited by female members of the family, as claimed by the complainant and accused/appellant was in police custody at the relevant time. On the other hand, the accused/appellant recorded statement on oath under section 340(2), Cr.P.C. wherein he categorically refuted the allegations of recovery of `charas' belonging to him. During his cross-examination, the accused/appellant claimed that he had documents through which he shifted to Tirrah, Khyber Agency, where a permission card was given to him for migration back; but, according to the accused/appellant, the permission card was taken from him by the police in the police Station.

5. The above material discrepancies in the case of prosecution, together with the admitted factum of delay in sending the samples to the FSL, create serious dent in the prosecution case against the accused/appellant, leading one to conclusion that the prosecution has not been able to bring home charge against the accused/appellant.

6. In the circumstances, the accused/appellant could not be convicted and sentenced for offence under section 9(c), C.N.S.A. The judgment of the learned Sessions Judge/Judge Special Court, Kohat dated 31.3.2012 is, accordingly, set aside and the accused/appellant is acquitted of the charge. He be set at liberty forthwith, if not required in any other case. HBT/33/P Appeal allowed.