2017 P Cr (PLP)

MISS AALIA NEELUM, J.

Muhammad Ali son of Hafeezullah, the appellant was involved in case FIR No.282-2014 dated 21.04.2014, offence under section 9(c) of The Control of Narcotic Substances Act, 1997, registered at Police Station, Saddar Sialkot and was tried by the learned Additional Sessions Judge, Sialkot. The learned trial court seized with the matter in terms of judgment dated 28.10.2014 convicted the appellant under section 9(c) of The Control of Narcotic Substances Act, 1997 and sentenced to undergo rigorous imprisonment for three years along with fine of Rs.50,000/-and in default of payment of fine-amount, the appellant will 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 the instant appeal.

2. The prosecution story as alleged in the FIR (Ex.PA) lodged on the complaint (Ex.PA/1) of Kamran Baig, S.I. (PW-3)/complainant is that on 21.04.2014, he (PW-3) along with Muhammad Shahbaz 2076/C, Zulfiqar Ali 836/C (PW-4) laid a barricade at Bismillah Chowk and received a secret information that a pathan while carrying narcotics in a plastic bag was coming in Doburji Araianwala adjacent to Gulshan Park and if a raid was conducted, he could be apprehended. On receiving of spy information, he (PW-3) along with raiding team, reached at the spot and overpowered the accused at Doburji Araian and on asking, the accused disclosed his name as Muhammad Ali son of Hafeezullah, Caste Pathan, resident of Shahoo Tehsil, Kalaam District, Sawat. On personal search, garda/charas weighing 1350 grams wrapped in black plastic bag was recovered which was taken into possession vide recovery memo (Ex.PB) and sealed by embossing a seal of K.B. Thereafter the complainant (PW-3) handed over the case property to Muhammad Shahbaz 2076/C for onward transmission to the police station for further proceedings.

3. On receiving of complaint (Ex.PA), formal FIR (Ex.PA/1) was chalked out by Muhammad Riaz, S.I. (PW-5). After registration of FIR, the investigation was entrusted to Muhammad Nawaz, S.I. (PW-6), who inspected the place of occurrence, prepared the site plan (Ex.PC) and recorded the statements of prosecution witnesses under section 161 of Cr.P.C. Having found the accused guilty, the Investigating Officer (PW-6) challaned the accused and sent him to judicial lock up.

4. The learned trial court formally charge sheeted the appellant on 03.06.2014, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as six witnesses. Kamran Baig, S.I. (PW-3) is complainant, Muhammad Riaz, S.I. (PW-5) chalked out the formal FIR, Muhammad Nawaz, S.I. (PW-6) is Investigating Officer whereas Zulfiqar Ali 836/C (PW-4) is witness of the recovery.

5. On 10.10.2014, the learned Deputy District Public Prosecutor gave up Muhammad Shahbaz 2076/C and closed the prosecution evidence after tendering the report of Chemical Examiner as (Ex.PD).

6. The appellant was also examined under section 342, Cr.P.C. wherein he opted not to lead defence evidence and refused to appear as his own witness in terms of section 340(2), Cr.P.C. in disproof of allegations levelled against him and while replying to a particular question that why PWs have deposed against him, the appellant made the following deposition:- "I am innocent. I am resident of District Sawat. I am Pathan by caste. On 20.04.2014, I came to Sialkot to see my relatives. Kamran Baig, S.I. apprehended me from the Bus Stand Sialkot on the basis of suspicion and took me in the police station. Kamran Baig, S.I. demanded illegal gratification, on my refusal, he foisted the alleged recovered charas upon my person just to take revenge and to show his fake efficiency. The PWs have deposed against me as being subordinate of Kamran Baig, S.I."

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. Heard. Record perused.

9. After a careful scrutiny of the material available on record, we come to the conclusion that the prosecution has not been able to prove beyond reasonable doubt that charas-garda was recovered from the possession of the appellant. The charas-garda weighing 1350 grams stated to have been taken and sealed at the spot on 21.04.2014, however, prosecution witnesses, PW-3 and PW-4, are contradicting the same. A careful scrutiny of the testimony of Kamran Baig, S.I. (PW-3), reveals that he deposed during cross-examination that, "The recovered charas was in small pieces. It was garda-charas. I have not counted the pieces of the charas because it were uncountable. The colour of the recovered charas was green blackish." Underline and bold for emphasis. Whereas Zulfiqar Ali, Constable (PW-4) deposed during cross-examination that, "It was a lither/slab shape. The length of the lither/slab was about half foot. I can't say the thickness of the recovered slab of the charas." Underline and bold for emphasis.

10. We have carefully perused the narcotics analysis report (Ex.PD) of the Punjab Forensic Science Agency dated 27.05.2014. This report reflects that charas was of dark brown. The narcotics analysis report reflects that on 24.04.2014, the office of Forensic Science had received one sealed parcel containing approximately 1350 grams of suspected charas. The result of the analyst was to the effect that, "item # 01-1310 grams of dark brown material (underline and bold for emphasis) in sealed parcel contains charas." Except the bare opinion and assertion that the sealed parcel contains charas there is indeed nothing in the report that the charas was pukhta or garda. There is clear contradiction regarding shape of recovered substance. It is the case of the prosecution that charas-garda weighing 1350 grams was recovered from the possession of the appellant. Several pieces of evidence and circumstances have been brought on the record which creates doubt about the recovered substance. The prosecution has badly failed to prove conclusively that alleged recovered substance was charas-garda. Therefore, there is a cause for doubt as to whether charas-garda was recovered from the possession of the appellant. In such serious cases under the Control of Narcotic Substances Act, 1997 the investigation and evidence for the offence involves highly technical procedure and call for strict compliance of procedure and rules made in this regard. The prosecution case clearly suffers from infirmities. It was necessary for the prosecution to establish by cogent evidence that charas-garda was recovered from the possession of the appellant. Whereas the evidence brought on record creates doubt about the recovered substance charas-garda. Reliance is placed on "Maula Jan v. The State" (2014 SCMR 862).

11. The important link evidence to connect the accused with the charas-garda weighing 1350 grams recovered from polythene bag wrapped in old clothes is also missing. The polythene bag and old clothes have not been brought on record. Kamran Baig, S.I. (PW-3) deposed during cross-examination that, "The charas was wrapped in a black polythene bag which the accused was carrying in his right hand. The old clothes and shopping bag were not taken into possession." Zulfiqar Ali, Constable (PW-4) recovery witness, deposed during cross-examination that, "there was a one suit of shalwar-qameez inside of the shopping bag. The said shalwar-qameez was not taken into possession." Muhammad Nawaz, S.I. (PW-6), the Investigating Officer, deposed during cross-examination that, "no shopping bag and clothes were handed over to me by the complainant." By itself this may not be incriminating circumstance but if taken with the other circumstances, it creates doubt about the prosecution case. It becomes manifestly clear that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. On careful examination of entire evidence, we are of the view that the learned Additional Sessions Judge committed grave illegality in convicting the appellant for committing the offence without any legal evidence worthy of credit available on record. Since there was inherent illegality in the matter, the conviction can not be upheld and findings in this regard are liable to be set aside and the same is set aside and in consequence whereof, the appeal is accepted and Muhammad Ali-the appellant is ordered to be acquitted of the charge in case FIR No.282-2014 dated 21.04.2014, offence under section 9(c) of The Control of Narcotic Substances Act, 1997, registered at Police Station, Saddar Sialkot. The appellant-Muhammad Ali is directed to be released forthwith, if not required in any other case. SL/M-67/L Appeal allowed.