' M.A. SHAHID SIDDIQUI, J.---Abdul Majeed, appellant, has been convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 in case F.I.R. No,111 of 2002, dated 152- 2002 Police Station, Kahna, Lahore by a learned Additional Sessions Judge, Lahore vide judgment, dated 30-10-2003. He has been sentenced to imprisonment for life and a fine of Rs,50,000 and in default of payment thereof he has been ordered to undergo further simple imprisonment for two years.
2. The F.I.R. (Exh. PC/1) is based on the written complaint (Exh. P.C.) of Abdul Habib A.S.-I. (P.W.4).
According to which the complainant accompanied by Muhammad Mushtaq Constable No, 3201 (P.W.3) and two other constables Abdul Razzaq and Abdul Ghaffar while on patrol duty was present at Kacha Morr, Ferozepur Road, when he received a spy information that a Charas Peddler was proceeding from Wagon Stop towards his house in Ward No, 20 with a huge quantity of Charas. The complainant and his companions rushed towards the spot and on the pointing out of the spy apprehended the petitioner, who was carrying a plastic bag, which contained Charas. On search 15 golden colour packets of Charas were recovered from the plastic bag. 10 grams of Charas was separated from each packet for chemical analysis and made into sealed parcels. The remainder was also sealed and taken into possession vide recovery memo. Exh.P.A. Abdul Habib, A.S.-I.
Prepared the site-plan of the place of recovery Exh.PD and sent the complaint Exh.D.C. To the Police Station through Abdul Ghaffar, Constable, for formal investigation of the case. In the meantime, Abdul Shakoor S.-I. , S.H.O. (P.W.5) had arrived at the scene of occurrence. He took up the investigation, inspected the spot, recorded the statements of P.Ws under section 161, Cr.P.C. And submitted the challan.
3. The trial commenced on 8-5-2002 with the framing of charge against the accused, who pleaded not guilty and claimed trial. The prosecution examined as many as five witnesses in order to bring home, the charge against the accused and tendered in evidence the report of Chemical Examiner Exh.PE before closing its evidence.
4. Muhammad Mushtaq, Constable P.W.3 and Abdul Habib, A.S.-I. P.W.4, deposed about the recovery of Charas from the possession of the appellant. Muhammad Afzal, Head Constable P.W. I stated that he had received 15 sealed parcel on 15-2-2002 from the Investigating Officer, which he kept in Mal Khana and handed over to Abdul Ghaffar, Constable, P.W.2 for onward transmission to the office of Chemical Examiner. In cross-examination he admitted that he had been posted asMuharer at Police Station Kahna since August, 2001. He admitted that he had not made any entry in Register No,19 about those 15 parcels for analysis. Abdul Ghaffar P.W.2 stated about transmission of these parcels to the office of Chemical Examiner after obtaining docket from the Excise Department. Abdul Shakoor, S.-I. P.W.5, stated that on 15-2-2002 he was on patrol duty at Wagon Adda, when Abdul Ghaffar, Constable appeared before him with F.I.R. Exh.PA/1. He then reached Ward No,20 Kahna, where Abdul Habib, A.S.-I., was present along with the accused. He inspected the spot, recorded the statements of P.Ws. Under section 161, Cr.P.C. And returned to the Police Station. He maintained that he had handed over the case property to the Muharrer.
5. The accused in his statement under section 342, Cr.P.C. Denied the allegation. He pleaded that his wife had quarrelled with the wife of his brother Abdul Rashid, who is related to Abdul Habib, A.S.- I. For this revenge Abdul Habib raided his (appellant's) house on 13-2-2002 at about 1-30 A.M. And took him to the Police Station. He maintained that Abdul Habib, A.S.-I., had recovered Charas weighing 15 kilograms from one Aziz Khan Pathan, who had brought the same for Shaukat Ali and Noala, Narcotics Dealer and the said Noala happened to be "Ham Zulf" of Haib, A.S.-I. He pleaded that he had been falsely implicated by the Investigating Officer with mala fide intention, who had prepared all the documents while sitting in Police Station. The appellant declined to appear as witness under section 340(2), Cr.P.C. However, he produced his brother Malik Abdul Rashid and one Ishtiaq Ahmad in his defence as D.W.1 and D.W.2 respectively. The statement of Malik Abdul Rashid, D.W.1, is to the effect that his wife had quarrelled with the wife of Abdul Majeed, appellant and thereafter Abdul Habib, A.S.-I. At the instance of the D.W.'s wife registered a false case against Abdul Majeed. Abdul Rashid further stated that Abdul Habib, A.S.-I., had taken away Rs,30,000 from the house of accused during search and that a complaint had been made to S.P. And S.S.P., which proved futile. Ishtiaq Ahmad deposed that Abdul Habib, A.S.-I., had raided the house of Abdul Majeed, appellant, on 13-2-2002 at 1-30 a.m. And taken him away.
6. The learned Trial Court after taking into consideration the entire facts of the case besides having observed that serious irregularities have been committed during the investigation of the case and the accused was A not given an opportunity by the Investigating Officer to produce evidence in defence, convicted the appellant and sentenced him as mentioned above vide impugned judgment, dated 30-10-2003. Hence this appeal.
7. It has been argued by the learned counsel for appellant that the appellant was arrested by Abdul Habib, A.S.-I. From his house and falsely involved in the case with mala tide intention at the instance ofwife of appellant's brother, who is related to Abdul Habib, A.S.-I. The learned counsel highlighted some discrepancies appearing in the statement of P.Ws, and few overwritings, which according to the learned counsel for the appellant are of marked significance and make the prosecution's case highly doubtful. Lastly, he argued that the prosecution had failed to show that the Investigating Officer on his return to the Police Station had deposited the case property with Muharrer of the Police Station as such the subsequent production of the case property before the learned Trial Court becomes open to question.
8. The learned counsel appearing on behalf of the State supported the judgment. He maintained that in the absence of any background of ill-will or enmity between the P.Ws. And the appellant a huge quantity of Charas cannot be said to have been planted falsely.
9. We have made reappraisal of the entire material brought on record trom the prosecution side in the light of the plea taken up by the appellant and the evidence produced by him in his defence. It has not been denied by Abdul Shakoor, S.-I. P.W.5., who claimed to have investigated the case that the wife of accused had filed an application alleging therein that the accused had been arrested from his house and the complainant had taken away Rs,30,000 from them. In his examination- inchief he deposed that he had prepared the challan of the case on 11-3-2002 and in cross- examination he denied the suggestion that he had prepared the challan on the following day of registration of the case. But this fact is belied by the report under section 173, Cr.P.C. Prepared by this witness, which is available on the file and on the basis of which the Trial Court had taken cognizance of the case against the appellant. It certainly shows that it was prepared by the S.H.O.
On the next day and forwarded by the Circle Officer on 27-2-2002. He admitted that he knew that the death sentence could be passed in the case involving recovery of narcotics more than 10 kilograms. In the same breath he admitted that he did not join any other person during investigation from the spot. The haste with which he submitted the challan in the case in hand involving death penalty especially when the appellant's wife had made a complaint to the higher Police Officer alleging therein that her husband had been arrested from his house shows the keenness of the S.H.O. To prosecute the appellant. The learned Trial Court has also made an observation in paragraph 21 of its judgment that the accused was right in claiming that he had been subjected to malicious prosecution. The relevant portion of the judgment may be reproduced as under:-- "But in order to provide justice to the accused he was supposed to collect evidence of both the sides which has not been done in this case, therefore, of course theaccused is right in claiming that he is victim of malicious prosecution."
The learned trial Court further observed that the Investigation Officer was duty bound to allow an opportunity to the appellant to prove his innocence, but he failed to do so. In these circumstances the learned trial Court has rightly come to the conclusion that the investigation of the case had not been done fairly. Therefore, logically it can be said that the investigation was carried out dishonestly.
10. Admittedly, no person from the public was associated during the investigation of case. Two recovery witnesses and the Investigation Officer belong to the same Police Station. They are supposed to record their movements not only in the case diary, but also in daily diary register maintained at the Police Station, therefore, any variation in the statements of these witnesses about the time of occurrence should not be ignored lightly. Abdul Shakoor, S.H.O. P.W.5, in his cross- examination disclosed that he had left the Police Station at 10.00 A.M. For patrol duty on his official vehicle and that he received information about this case at Wagon Adda after about 10 minutes of his arrival over there. It is in his statement that the Wagon Adda was at an distance of 1/2 kilometer from the Police Station. He would have taken not more than five minutes to reach Wagon Adda from the Police Station. His official vehicle was fitted with wireless set and he himself had a Mobile Phone. He admitted that he had been informed by the complainant and Muharer before he met Abdul Ghaffar, constable. Thus according to Abdul Shakoor he had come to know about the recovery much before 10.30 A.M. Whereas Abdul Habib, A.S.-I. P.W.4, in cross-examination deposed that he had left the Police Station on that day at 12.00 noon and it took 15 minutes to reach Kaacha Morr, where he met the informer after 45 minutes. From there he went on a car along with his four companions and apprehended the appellant. It can be gathered from his statement that he had apprehended the appellant by or before 1.15 p.m. He might have taken another half an hour to prepare the complaint and recovery memo. But he has shown to have prepared the complaint at 2.05 p.m., which otherwise appears to have been tampered with. So we are of the view that the time of recovery given by Abdul Habib, A.S.-I., is at variance with the timing given by Abdul Shakoor, S.-I. P.W.S.
11. Another important fact which we have noticed is that the signature of the complainant on the complaint Exh.P.C., appears to be different from his signature on the recovery memo. Exh.PA and the site-plan of place of recovery Exh.P.D. In cross-examination Abdul Habib, A.S.-I., claimed to be the scribe of Exh.PA to Exh.PD. He denied the suggestion that these documents were not in his handwriting and that he had deposed falsely. He expressed his willingness to draw few lines for comparison. The learned trial Court obtained sample of his handwriting Mark-A and made following observation in para. 22 of its judgment:-- "Abdul Habib A.S.-I.Was dictated 2/3 lines and same was placed as mark "A". The naked comparison of Exh.PA., Exh.PB and Exh.PC proved that exhibited documents are not in the handwriting of Abdul Habib, A.S.-I."
12. We have also looked into Exh.PA, Exh.PB. Exh.PC and Exh.PD and compared with the handwriting of Abdul Habib, A.S.-I., Mark-A. We find no reason to take any exception and hold that these documents were not drawn by Abdul Habib, A.S.-I. And that he fabricated these documents with ulterior motive.
13. Lastly, we shall deal with the case property i.e, 15 kilograms of Charas, which was allegedly recovered from the possession of the appellant. Abdul Shakoor, S.-I., P.W.5, deposed that on his return to the Police Station, he lodged the accused in Lock-up and handed over the case property to the Muharer. Now, in this regard the statement of Muhammad Afzal, Head Constable, P.W.1, the Muharrir of the Police Station, is to the effect that on 15-2-2002 the Investigating Officer had handed over to him 15 sealed parcels for chemical analysis, which he kept in Mal Khana which he delivered to Abdul Ghaffar, constable, on 16-2-2002 for onward transmission to the office of Chemical Examiner. It may be noted that this witness has not uttered even a single word about the case property i.e, Charas weighing about 15 kgs. In cross-examination he admitted that he had not made any entry even in respect of these 15 parcels in Register No_19. He admitted that he was legally bound to make the entry in Register No,19 about the receipt of these articles. He made an unsuccessful attempt to explain this omission by stating voluntarily that he had mentioned this fact on the back of F.I.R. In the register of F.I.Rs, If some case property is delivered to Muharer for keeping the same into safe custody, he is immediately required to record this fact in the Roznamcha and also to make entry in Register No,19. If he fails to do so it may be presumed that such article/case property was never brought to the Police Station and delivered to the Custodian.
In this view of the matter subsequent production of the case property before the trial Court would become open to doubt.
14. Under the above discussion we are of the considered view that the prosecution of the appellant is not free from malice. The prosecution has failed to establish its case against the appellant.
Accordingly, we accept this appeal set aside the conviction and sentence of the appellant awarded by the learned trial Court vide judgment, dated 30-10-2003.
' The appellant is ordered to be set at liberty if not required in any other case.
15. Before parting with the judgment we would like to observe that Abdul Habib, A.S.-I., while posted at Police Station, Kahna on 15-2-2002 fabricated false evidence and document against the appellant in order to procure his conviction on a charge involving capital punishment. We, therefore, direct the competent authority to initiate departmental action against the said Police Officer under intimation to this Court. Copy of this judgment may be sent to Inspector General of Police, Punjab, Lahore for onward transmission to the competent authority.