2011 SCMR 820 (PLP)

ANWAR ZAHEER JAMALI, J.

Through this criminal appeal, judgment dated 11-3-2008, passed by a Division of Lahore High Court, Bahawalpur Bench, in Criminal Appeal No. 276 of 2004, has been challenged by the appellant.

2. Briefly stated, relevant facts of the case, as per F.I.R. bearing No. 81 of 2004, dated 30-3-2004, registered at Police Station, Saddar, Hasilpur, are that the appellant, on spy information, was apprehended by a police raiding party near Adda Tool Tax within the limits of Mauza Gahi Behram, while standing near ten sacks, containing narcotic substances, weighing 9-1/2 mounds, which, according to his statement, he had purchased from Multan for a sum of Rs.50,000 and intending to sale it to "Malang"/addict people at different places, being his business.

3. After investigation of the crime, the appellant was challaned before the Court of Additional Sessions Judge/Special Judge Narcotics, Bahawalpur at Hasilpur, vide Case No.30 of 2004. During the trial of this case, the prosecution had examined six witnesses, all police personnel, out of whom two were stated to be the eye-witnesses of the incident. As per report of the Chemical Examiner, produced before the trial Court at Exh.PD, he had received ten sealed parcels on 8-4-2004, weighing five hundreds grants each, which contained grinded material of flowers, leaves, seeds and heads of poppy with dust and seeds in small quantity. The trial Court, after conclusion of trial, came to the conclusion that the prosecution has succeeded to bring home its case against the appellant on the basis of evidence adduced before it, and thus, convicted the appellant. for the commission of offence under section 9(c) Control of Narcotic Substances Act, 1997 (in short Act 1997), and awarded him imprisonment for life with fine of Rs.20,000, and in default of payment of fine, to undergo further simple imprisonment for two years.

4. The appeal under section 48 of the Act 1997, preferred by the appellant before the Lahore High Court, Bahawalpur Bench, met with the same fate and, thus, it was dismissed through the impugned judgment of the Division Bench, which had affirmed the findings of the trial Court/ Special Judge Narcotics, Bahawalpur.

5. Learned counsel for the appellant, Mr. Muhammad Zaman Bhatti, after making detailed reference to the oral and documentary evidence brought on record by the prosecution, vehemently contended that conviction of the appellant for the commission of offence under section 9(c) of the Act, 1997, is result of gross misreading and non-reading of material pieces of evidence, from which it was established that he was an innocent person, who was falsely implicated in the crime by the police. In this regard, learned counsel his made reference to the deposition of Muhammad Anwar ASI, P.W.5, who, in his deposition, has stated that on the pointation of informer, he had seen the accused person standing at a distance of eight or ten yards towards western side of the road and had taken his personal search but nothing was recovered. However, as he was standing near ten sacks, therefore, it was presumed that he was the person carrying such sacks of narcotics. It is significant to note that as per prosecution's own case, this incident had occurred in a busy area (public place) of town where number of private persons were available, but no efforts were made by the Investigating Officer of the crime to arrange any witness of the locality, who might have seen the appellant in any manner linked with the ten sacks of narcotics lying near the road in open space. Learned counsel, while making reference to the evidence of other prosecution witnesses, has shown that even in the evidence of two prosecution witnesses, who were allegedly eye-witnesses of the arrest of the appellant and recovery of narcotic substances from his possession in the form of ten sacks, they have nowhere stated that they had, in any manner, seen the appellant either bringing those sacks or carrying the same with him. Thus, mere fact that appellant was standing near those bags could not be a proof of the fact that he was the person in active possession of ten sacks containing narcotic substances. May be the same were belonging to some other criminal, who might have slipped away seeing the police raiding party as also specifically deposed by the appellant in his statement on oath under section 340(2), Cr.P.C. before the trial Court. He also made reference to the report of Chemical Examiner to show that without any plausible explanation, the alleged samples of narcotic substances were sent to the Chemical Examiner after delay of eight days, though, as per Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, this exercised was required to be completed within seventy two hours pf the recovery, and for this purpose, even there is no plausible explanation from the side of the prosecution that why such inordinate delay was caused in the completion of this exercise by the Investigating Officer.

6. In the light of submissions made by the learned counsel for the appellant, we have carefully gone through the case record as well as the two judgments impugned before us by the appellant and seen that the evidence adduced by the prosecution lacked quality as well as reliability about the involvement of the appellant in the commission of crime for many reasons. In the instant case, it seems to be highly improbable that the informer, after seeing the appellant, allegedly standing at Toll Tax with huge quantity of narcotics, will cover long distance to inform the police party, who will come back at the place of occurrence in his company and will catch hold of appellant, as if he was waiting for them at the place of occurrence; no evidence has cone on record to show that either the informer or any person had seen the appellant either loading or unloading the said sacks containing narcotic substances from any vehicle or other source, which, in other words, means that even if the said ten sacks were containing narcotic substances in the form, as reported by the Chemical Examiner, mere fact that the appellant was standing near those sacks or a passerby will not establish that the same were in his active possession or even he had any knowledge about the contents of those bags. It is well-settled legal principle regarding dispensation of justice in criminal cases that if any reasonable doubt is created in the case of the prosecution then its benefit is to be extended to the accused party. In the instant case, as discussed above, even if whole evidence of the prosecution is considered in its totality, it is not established beyond reasonable doubt that the alleged quantity of 9-1/2 mounds contained in ten sacks was owned by the appellant or it was in his possession. Another distinguishing feature of the case is that there is no explanation, whatsoever, from' the side of the prosecution about the delay of over seven days in the remission of samples to the Chemical Examiner for his report.

7. This being the position, extending the benefit of doubt to the appellant, this appeal is allowed, both the judgments impugned before us by the appellant are set aside, he is acquitted of the charge and ordered to be released forthwith, if not required in any other case. Before parting with the judgment, we may observe that the delay of two days in the filing of this appeal by the appellant, looking to the facts and circumstances of the case, is condoned. N.H.Q./M-125/SC Appeal accepted.