2005 PLP 1409 (YLR)

SARDAR MUHAMMAD ASLAM, J.

This criminal appeal is directed against the judgment dated 5-3-2003 passed by the learned Additional Sessions Judge, Sialkot, whereby, he convicted the appellant under section 9(c) of C.N.S.A., 1997 and sentenced him to undergo 10 years' R.I. with fine of Rs.1,00,000 in case F.I.R. No.33 dated 28-2-2001 registered under section 9(c) of CNSA, 1997 at Police Station, Nekapura, Sialkot.

2. The Investigating Officer after completion of investigation submitted the challan before the learned trial Court. Charge was framed. The appellant denied the charge and claimed trial.

3. Learned counsel for the appellant contends that the evidence has not been appreciated by the learned trial Court in its true perspective and the judgment is not in accordance with the safe principle of administration of criminal justice.

4. On the other hand, learned counsel for the State has supported the judgment of the learned trial Court.

5. Heard. Record perused.

6. P.W.3, Maqsood Ahmed Head Constable and P.W.5, Haji Inayat, S.-I. are the recovery witnesses. P.W.3 deposed that the appellant was being interrogated while in police custody, made disclosure to get the recovery of narcotics effected from his residential room. Both the recovery witnesses went to the house of Mahr Khalil from where on pointation of the appellant Charas Exh.P.1 was recovered. He stated that after recovery no steps were taken at the spot. Learned A.D.A. requested for permission to declare the witnesses as hostile, which was refused. In cross-examination he stated that Mahr Khalil, was present at the time of recovery of Charas at the spot. He was also arrested and taken to the police station. There were four to five rooms in the house of said Khalil. Charas was lying buried underneath the ground. P.W.5 the other recovery witness stated that Charas was recovered lying on the southern wall of the room underneath a cot. In cross-examination he stated that Charas was recovered from the appellant which consisted of 14 pieces. He could not tell the weight of each piece. He took samples from each piece. The place of recovery was owned by Mahr Khalil. According to him, Khalil was not present at the spot and was also not called to the police station. The recovered narcotics was buried in the ground. P.W.6 Sana Ullah Investigating Officer stated that the place of recovery belonged to Khalil Ahmad. He visited the place of recovery. Khalil was not present. He did not join him in investigation. Exh.P.B. is recovery memo. It indicates recovery of a shopping bag from underneath the cot of a residential room, on the pointation of the appellant.

7. The material contradictions appeared in the statements of the two recovery witnesses and the recovery memo., inasmuch as, P.W.3 stated that Charas was buried under the ground and was recovered. P.W.5 deposed that it was lying under the cot in a residential room occupied by the appellant but in cross-examination, he stated that it was burried under the ground. Exh.P.B. recovery memo. indicates recovery underneath the cot from a shopping bag.

8. The site-plan Exh.P.D. shows recovery from point mark 'A' residential room of the appellant. It is located in residential Havali of Mehr Khalil. Exclusive possession of the appellant has not been established. No evidence has been brought on record to prove how the appellant was occupying the premises. In answer to Question No.5, in his statement under section 342, Cr.P.C., appellant stated that in fact the recovery was effected from Mehr Khalil, who was apprehended and let off by the police. He was implicated and made scapegoat as he was doing labour work near the residence of Khalil.

9. The contradictions afore mentioned are fatal to the prosecution case. It caused a serious dent in the truthfulness of the story. The prosecution has failed to prove its case against the appellant beyond reasonable doubt. Resultantly, we allow this appeal and set aside the impugned judgment. The appellant is acquitted of the charge. He be released forthwith, if not required in any other case. H.B.T./M-894/L Appeal allowed.