' IJAZ-UL-HASSAN KHAN, J.--- This judgment will dispose of Criminal Appeal No,118 of 2003 directed against the judgment and order, dated 22-11-2003 passed by Mr. Wilayat Ali Khan, Judge Special Court, Lakki Marwat, whereby appellant Sarwar Jan was convicted under section 9 of the Control of Narcotic Substances Act, 1997 and sentenced to suffer three years' R.I. And fine of Rs,10,000 or in default thereof to undergo further S.I. For four months with benefit of section 382-B, Cr.P.C.
2. The relevant facts giving rise to this appeal are that complainant Muhammad Akbar Khan, S.H.O.
Police Station Naurang on receipt of secret information, made raid on the house of Sarwar Jan son of Gulli Jan situated in Daurana Takhti Khel, District Lakki Marwat on 24-9-2001 and recovered Charas and opium from a residential Kotha of the house. The accused was not found present in the house. On weighment, the Charas and opium were found 600 grams and 90 grams respectively wrapped in separate plastic envelops. On further search a small scale with weights and cash amount of Rs,300 was also recovered. All these items were taken into possession by the police. A Murasila' (Exh.P.A./1) was drafted under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 and section 9 of Control of Narcotic Substances Act, 1997, by complainant and dispatched to Police Station Naurang which was correctly incorporated into F.I.R. (Exh.P.A.) by I.H.C. Amir Khan (P.W.3).
3. The accused appeared before the trial Court and charge under section 9 of the Control of Narcotic Substances Act was framed against him to which he pleaded not guilty and claimed trial whereupon prosecution evidence was recorded. Prosecution examined three Witnesses in all to prove its case against the accused. Thereafter, accused was examined under section 342, Cr.P.C.
Wherein he denied the allegations and claimed to have been falsely roped in the case. He neither appeared as his own witness on oath as required under section 342, Cr.P.C. Nor produced defence.
4. The learned trial Judge, upon examination of the material on record, adjudged the appellant guilty of the offence and convicted and sentenced him as mentioned above.
5. Mr. Ashiq Hussain, Advocate for the appellant contended that there is no tangible evidence on record to implicate the appellant with the commission of crime as he was not found in direct conscious possession of the narcotics in question; that there was delay in the receipt of contrabands by the Forensic Science. Laboratory and there is no explanation furnished for this delay; that the house wherefrom the recovery was made, was not the sole ownership of the appellant 'but was a house occupied jointly and that the recovery of narcotics in question has not been satisfactorily proved. To support his pleas, the learned ounsel placed reliance on Tila Muhammad v. The State 2003 PCr.LJ1379 and Mst. Shamim v. The State 2003 PCr.LJ 1529.
6. Conversely, Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State supported the impugned order of conviction and contended that keeping in view the material available on the file, learned trial Judge was fully justified to believe the prosecution evidence and pass an order of conviction. He further contended that in narcotics cases, approach of the Court, should be dynamic and technicalities should be overlooked in the larger interest of the country and while deciding the case, the Court should consider the entire material as a whole and if it is convinced that the case is proved, then, conviction should be recorded notwithstanding procedural defect.
7. It is the case of prosecution that pursuant to a spy information that one Sarwar Jan deals in narcotics and arms and ammunition business in his house situated at Daurana Takhti Khel, Lakki Marwat, a police party comprising A.S.-Is. Mir Ahmad, Bashir Khan and Saifulalh. And Mst. Bakht Bibi was constituted. A search warrant was obtained from the Court and the house of the accused was raided on 24-9-2001 and 600 grams Charas and 90 grams of opium were recovered from the residential Kotha of the house. Admittedly at the time of raid, appellant was not present in the house and he was subsequently arrested on 2-10-2001.
8. It is settled law that the onus to prove guilt is always on the prosecution which is to prove that it is the accused person who has perpetrated the offence and thus, the prosecution is to independently discharge those onus irrespective of any plea taken by the accused. The mere fact that the police witnesses had no enmity or grudge or motive to falsely implicate the accused persons, by itself, is not a strong circumstance to hold that whatever has been alleged by the prosecution should be implicitly relied upon without asking for supporting evidence. This circumstance does not absolve the prosecution of its initial duty to prove its case beyond a pale of reasonable doubt.
9. Having heard the arguments of learned counsel for the partiesi with reference to the material on file, we agree with the learned counsel' for the appellant that the house wherefrom the recovery was made was a joint house and the appellant was not residing alone, in the said house.
Admittedly, the appellant was not found present at the time of recovery but was arrested subsequently. We are satisfied that the appellant was not found in direct conscious possession of the contraband in question and had no concern with it. The plea of the D.A.-G. That no mala fide could be attributed to the police is not based on the settled and sound judicial principles and cannot be accepted to base a conviction of the appellant on such tainted and doubtful evidence.
Mst. Yasmeen v. The. State 2003 YLR 2675.
10. There is another element in the case which creates more difficulty for the prosecution, namely the delay in dispatching the recovered intoxicant. The alleged Charas and opium were recovered on 19-4-2001 but the parcels were sent for analysis after 15/16 days of its recovery. Moreover, the prosecution also failed to explain that the recovered contraband remained in whose possession and under supervision for 15/16 days, therefore, this possibility cannot be ruled out that within the period of 15/16 days, the recovered intoxicant was substituted, thus, the delay in dispatching the recovered Charas and opium has made the case of prosecution suspicious and doubtful.
Following observations were made in Mst. Lqbal Bibi v. State 2000 PCr.LJ 1812:-- "The third argument of the learned counsel for the appellant is that there was delay of 5 days in despatching the parcel to F.S.L. Which makes the case of prosecution doubtful.. This argument has force in it. The alleged recovery was effected on 29-6-1996 whereas the Report of the Chemical Analyst shows that one gram of heroin sent by prosecution was received in laboratory on 3-7-1996, i,e,, with the delay of 5 days. There, is no explanation available on record as to in whose custody the said parcel was lying for 5 days. The delay in despatch of the recovered heroin has made the report of F.S.L. Doubtful and unreliable."
11. For the foregoing reasons, benefit of doubt is extended to the appellant, the appeal is allowed, conviction and sentence awarded to the appellant is set aside and the appellant, is acquitted of the charge levelled against him. The appellant shall be released forthwith if not required in any other case.
12. Above are the reasons for our short order, dated 1-4-2004.