2016 PLP 1362 (YLR)

By means of instant appeal filed in terms of Section 48 of the Control of Narcotic Substances Act, 1997 read with Section 417 of Cr.P.C., the State through Prosecutor General Punjab, has challenged the acquittal of respondent Naziran Bibi recorded by the learned Additional Sessions Judge, Gujranwala vide order dated 22.01.2008 in case FIR No.34 of 2007, dated 21.01.2007, offence under Section 9(b) of the Control of Narcotic Substances Act, 1997 registered at Police Station, Tatlay-Aali, District, Gujranwala.

2. Concisely, the facts narrated in the crime report (Ex.PA) are that on 21.01.2007, on suspicion, the respondent was apprehended by the police party and Charas weighing 555 grams was recovered from her possession, out of which, 10-grams Charas was separated for chemical examination while preparing recovery memo (Ex.PB).

3. On the basis of complaint written by Khalid Aslam, Inspector/SHO., FIR (Ex.PA) was chalked out by Muhammad Shabbir, A.S.I. (PW-3). Thereafter the investigation was entrusted to Khalid Aslam, Inspector/SHO, who recorded statements of the prosecution witnesses under section 161 of Cr.P.C and prepared the site plan. On 10.02.2007, Muhammad Akram 1901/C (PW-2) took the sample of 10-grams Charas to the laboratory for chemical examination. The Investigating Officer also recorded the statements of Muhammad Ashiq and Ashiq Ali Constables, Muhammad Iqbal, HC and one Tahir Mahmood under section 161 of Cr.P.C.

4. Having found the accused (respondent) guilty, the investigating officer prepared report under Section 173 of Cr.P.C and sent the same to the court of competent jurisdiction along with report of Chemical Examiner. The learned trial court, on 29.5.2007, formally charge-sheeted the accused (respondent) to which she pleaded not guilty and claimed trial.

5. The evidence of the PWs-1 to 4 was recorded by the learned trial court. After recording of prosecution evidence of Shabir Ahmad (PW-3) and Muhammad Ashiq (PW-4) on 22.01.2008, the respondent filed application under section 265-K, Cr.P.C., seeking her acquittal at that stage of the case. The learned trial court after evaluating the evidence of PW-3 and PW4 available on the file and in the light of arguments advanced from both the sides, found that the prosecution has miserably failed to prove the allegations levelled against the accused (respondent). As there is no probability of the accused of being convicted of any offence, therefore, the learned trial court acquitted the accused (respondent) by accepting application under section 265-K, Cr.P.C.

6. We have heard the arguments advanced by the learned Law Officer and perused the record minutely.

7. The learned Law Officer has submitted that re-appraisal of evidence of PW-4 is required. It has not been shown that the findings recorded by the learned trial court could not have been so recorded on the evidence on record. Even assuming that another view could be taken against the respondent in respect of the charge, that cannot be a ground to set aside an order of acquittal. In order to succeed, the State must show that the findings recorded by the learned trial Judge can effectively be dis-lodged and such findings are unwarranted.

8. The learned trial court has rightly taken note of the destructive deposition made by witness PW-4 Muhammad Ashiq on the crucial points in the case. Muhammad Ashiq PW4 has stated in his evidence that " recovered a shopper black colour from her possession and arrested the accused and handed over the shopper to the Investigating Officer ". But he conceded later during cross-examination and deposed that "It is correct that nothing was recovered from Naziran Begum accused in my presence. I came to know later that the charas 555 grams was recovered from her possession". PW-4 who was marginal witness of the recovery memo (Ex.PB) being star witness of the prosecution had furnished the ocular account of alleged recovery whereas during the cross-examination he denied his presence at the time of alleged recovery and arrest of the accused Naziran Begum (respondent) and deposed that "at the time of arrest of Shahida Parveen and Naziran Begum accused I was on the roof of the house". The prosecution witness should have stated his presence at the time of alleged recovery and what was recovered from the possession of the accused (respondent). His evidence leaves the impression that alleged recovery of narcotic substance was not recovered in his presence from the possession of the accused (respondent) and he had later come to know that charas weighing 555 grams was recovered from the accused (respondent), he (PW-4) has himself laid the foundation for disbelieving him. After going through the record we have also noted that the prosecution has offered no explanation for non-citing name of the important witness namely Hamida Bibi, lady constable who searched accused-Naziran Begum (respondent). In fact, what appears from the record is that no effort was made by the prosecution to join her (Hamida Bibi, lady constable) in the investigation to bring the said witness as prosecution witness. The alleged recovery had been effected from the respondent on the search made by Hamidan Bibi lady constable. The evidence of Hamida Bibi, Lady Constable, in the totality of the facts and circumstances of the case is considered "material" for the purpose of this case. Besides, the court is entitled to draw an adverse inference as provided in illustration (g) of Article 129 of Qanun-e-Shahadat Order 1984 and come to the conclusion that the said witness has been purposely not cited in calendar of the witnesses because if produced it would have been wholly unfavourable to the prosecution version. The star prosecution witness (PW-4 Muhammad Ashiq) also did not support the prosecution case. For the reasons aforesaid, the testimony of Muhammad Ashiq (PW-4) has suffered from many infirmities and it would not be safe to rely upon his testimony to hold the respondent guilty. The prosecution has failed to bring home the charge against the respondent to convict her for the commission of alleged offence. The learned trial court has rightly allowed the application because in view of the facts and circumstances of the case stated above, there was no probability of the accused (respondent) of being convicted of the offence charged for.

9. Consequently, the instant appeal is without merit and the same is hereby dismissed. HB/S-13/L Appeal dismissed.