' IJAZ AHMAD CHAUDHRY, J.---The appellants Muhammad Rashid and Muhammad Nasir both sons of Muhammad Pervaiz have filed this criminal appeal under section 48 of the Control of Narcotic substances Act, 1997 against the judgment dated 8-10-2002 passed by the Judge, Special Court, CNS, Lahore, through which he has found Muhammad Rashid appellant guilty under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for seven years R.I. He has also been directed to pay a fine of Rs,2,00,000 and in default of payment thereof to serve the imprisonment for six months. Muhammad Nasir appellant was also convicted under section 9(c) of the Control of Narcotic Substance's Act, 1997 and sentenced to imprisonment for life. He has also been directed to pay a fine of Rs,5,00,000 and in default of payment thereof to serve imprisonment for one year. Both the appellants were extended benefit of section 382-B, Cr.P.C.
2. On the written complaint (Exh.P.D.) drafted by Muhammad Afzal Asim, S.-I. (P.W.4) F.I.R. No,35 (Exh.D/1) had been registered on 10-11-1999 at 6-45 p.m. Which was drafted by Muhammad Arshad Khan, S.-I. (P.W.5) at Police Station, ANF, Lahore.
3. The brief facts of the prosecution case are that secret information was received that Muhammad Nasir and Muhammad Rashid, both brothers residents of Nishter Colony are involved in the sale of narcotics and they were present at their house while in possession of the huge quantity of narcotics and if raid was conducted they could be caught red handed. On the receipt of this information under the orders of the complainant a raiding party was constituted comprising of Captain Mian Farooq Aziz, Assistant Director, Naib Subedar Muzaffar Hussain, Naik Abdul Hassan Shaheen, Abdur Rehman, Fajar Khan Head Constables Lance Naik Muhammad Hussain, Lance Naik Malik Manzoor Ahmad, Sapahi Zulfiqar, Sapahi Zain Ullah, Munawar Hussain Constable, Sapahi Sakhawat Hussain, Sapahi Khalid Mahmood, Sapahi Muhammad Aftab, Sapahi Muhammad Akbar, Sapahi Aftab Ahmad and Muhammad Shafique Constable being members of the raiding party.
They on an official vehicle along with the informer under the supervision of Colonel Manzoor Akbar Joint Director, ANF proceeded to the spot. On the pointation of the informer the house was raided.
In the courtyard on the cot two persons were sitting who tried to run away on seeing the raiding party. They were apprehended and their names were known as Rashid and Nasir both appellants resident of Azhar Town. During interrogation Muhammad Rashid led to the recovery of narcotic substance from inside the kitchen lying in the wooden Almirah at a hidden place in a shopping bag. The shopping bag was opened and four packets of plastic were recovered. Three packets contained herein weighing one kilogram each and the fourth packet was opened which had contained 700 grams of heroin. So the total 3.700 grams heroin was recovered. Two grams heroin from each packet was separated for sending the same to the Chemical Examiner for analysis. The remaining heroin was taken into possession through separate parcels. Pistol .32 bore along with magazine and 5 live cartridges was also recovered. Then Nasir appellant during interrogation disclosed about the possession of narcotic substance and led to the recovery of the same from his Haveli. He dig out a plastic bag from the floor made of bricks lying in a wooden box. The bag was opened which contained Charas, opium and a pistol along with a magazine and five live cartridges. The Charas was weighed 27.500 kilograms and opium was 1.700 kilograms. Out of the recovered substance 10 grams Charas and 10 grams opium were separated for analysis while the remaining was taken into possession through four sealed parcels. Then the F.I.R. Was lodged.
4. After the completion of the investigation report under section 173, Cr.P.C. Was submitted, charge was framed against the appellant which was denied by them and in order to prove the guilt of the appellants the prosecution has produced five witnesses. Muhammad Sarwar, A.S.-I. Appeared as P.W.1. He kept the parcels in Malkhana and send the same through Ghulam Hussain, Constable to the office of the Chemical Examiner. The said Ghulam Hussain, Constable appeared as P.W.2.
Muhammad Shafique who was present at the spot at the time of recovery was produced as P.W.3 and the complainant/ Investigating Officer, Muhammad Afzal Asim appeared as P.W.4.
Muhammad Arshad Khan, S.-I. Who recorded the formal F.I.R. Also appeared as P.W.S. The documents Exh.P.G. And Exh.P.G./1 about the destruction of the case property were tendered in evidence and the prosecution evidence was closed.
5. The accused/appellants were examined under section 342, Cr.P.C. Who denied the allegations and professed their innocence. However, on a question that why this case against them and why did the prosecution witnesses deposed against them Muhammad Nasir appellant made the following reply:-- "Our family has serious enmity. We the only two brothers are out of gallows out of murder case. The real father and real uncle are presently in death cell in case F.I.R. No,56 of 1991 dated 8-2-1991, Police Station, Misri Shah, Lahore, under section 302/ 34, P.P.C. They were sentenced on 15-1-1992.
Due to that enmity the ANF has implicated in this case on the behest of complainant party. Nothing was recovered from my house or my personal search. The recovered narcotics were recovered from one Mubarik and subsequently were planted upon us as already stated therein above. All the P.Ws. Were employees of ANF and in order to show their efficiency and strengthen their case they have deposed against us."
' Similarly Muhammad Rashid appellant made the following reply to the same question:-- "Our family has serious enmity. We the only two brothers are out of gallows out of murder case. The real father and real uncle are presently in death cell in case F.I.R. No,56 of 1991 dated 8-2-1991, Police Station, Misri Shah, Lahore, under section 302/ 34, P.P.C. They were sentenced on 15-1-1992.
Due to that enmity the ANF has implicated in this case on the behest of complainant party. Nothing was recovered from my house or my personal search. The recovered narcotics were recovered from one Mubarik and subsequently were planted upon us as already stated therein above. All the P.Ws. Were employees of ANF and in order to show their efficiency and strengthen their case they have deposed against us."
' The appellants did not appear in their defence and did not produce any defence evidence except challan form mark "A" and certified copy of the judgment of the Supreme Court of Pakistan (Exh.D.A) and closed their defence. The learned trial Court after hearing the arguments of the parties through the impugned judgment has convicted the appellants and the said judgment is being assailed through this appeal.
6. Learned counsel for the appellants at the very outset has contended that Muhammad Shafique, Constable the recovery witness was produced as P.W.3 and during cross-examination he has admitted that after taking the oath started answering the question put to hi, ;n the cross- examination and he also co. Ceded that he did not utter a single word after taking the oath till the start of the examination. It is thus contended that his examination-in-chief was dictated by the Court itself and in the circumstances when the witness had not made any statement, his evidence cannot be considered, which is liable to be brushed aside. It is next contended that P.W.4, Muhammad Afzal Asim, S.-I. Himself was the complainant and Investigating Officer, whose mala fide is crystal clear from the fac/um that he had also taken into possession the fire-arms, which were licensee weapons but even then he had applied offence under section 13 of the Arms Ordinance XX of 1965. It is also contended that the site-plan does not contain the number of the house or the street where the house was situated and from where the recovery was effected and during the cross-examination failed to disclose the number or the street or the place from where the recovery was effected. It is also contended that he had prepared the documents malafidely to implicate the appellants in the present case falsely in connivance with the complainant party of the case of murder in which the father of the appellants was sentenced to death and the copy of the judgment of the Supreme Court has been attached. It is also contended that the manner in which the statement of P.W.3 was recorded, it cannot be used as a piece of evidence and the statement of the complainant/Investigating Officer, P.W.4 alone is not sufficient to convict the appellants in the present case of capital charges as he was not an independent person having motive to falsely implicate the appellants in the present case and it has been proved on the record that he had prepared the documents with mala fide intention. It is next contended that the other witness namely Fajar Khan who allegedly had witnessed the recovery from the appellants was given up being unnecessary inspite of that the statement of P.W.3 was found to be recorded by the learned trial Court not in a lawful manner. It is lastly contended that the sole statement of the Investigating Officer in the present case is not worthy of reliance due to his conduct and without being corroborated by any other piece of evidence the same cannot be relied against the appellants, who had no previous history of their involvement in the narcotic cases and this case was planted upon by showing the recovery of narcotic substance, which was in fact recovered from one Mubarik, but he was let off.
7. Learned counsel for the State on the other hand opposes this appeal on the ground that P.W.3, Muhammad Shafique Constable made statement in the Court and he was cross-examined at length, but no immediate objection was raised by the learned counsel for the defence, if his examination-in-chief was dictated by the learned Presiding Officer himself but in the last it has been recorded that the said statement was recorded by the Presiding Officer and his examination- in-chief even then could be recorded afresh as during lengthy cross-examination on him the defence failed to shatter his veracity. It is also contended that even if his statement is excluded from consideration the statement of P.W.4 alone is sufficient to connect the appellants with the commission of the crime who had no enmity to falsely implicate the appellants and his statement is corroborated by the documentary evidence regarding recovery of narcotic material in huge quantity at the instance of the appellants. It is also contended that the prosecution has been able to prove the case against the appellants beyond any shadow of doubt and the instant appeal may be dismissed as the appellants have already been dealt with leniently by the learned trial Court while imposing lesser penalty otherwise it was a case of death sentence.
8. We have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution. In order to prove the recovery form the appellants the prosecution examined P.W.3, Muhammad Shafique, Constable and P.W.4, Muhammad Afzal Asim, S.-I. P.W.3 during cross examination frankly admitted that he did not make examination-in-chief, which was got dictated by the learned trial Court itself and he after taking the oath had straightaway started answering the questions put to him in the cross-examination. Such sentences have been got dictated by the learned trial Court itself. In such circumstances we are unable to agree with the learned counsel for the State that even then the statement of P.W.3 can be considered as a piece of evidence. Under Article 132 of Qanun-e-Shahadat Order, 1984 a witness when he appears, his examination-in-chief has to be recorded first and then the cross-examination will be conducted upon him. Since the statement of P.W.3 in the examination-in-chief was not recorded in a lawful manner and it was not his statement but it was the dictation of the learned trial Court itself without any narration by P.W.3, we have no hesitation in holding that such a statement cannot be used as a piece of evidence against the appellants and the same is brushed aside. In this view of the matter the documents tendered in evidence through his statement regarding recovery of narcotic substances allegedly effected from the appellants cannot be read as pieces of evidence.
9. The only evidence in the above situation is the statement of P.W.4, Muhammad Afzal Asim, S.-I., who was the complainant mild had also investigated the case. On the statement of the Investigating Officer alone without having been corroborated by any other witness whether conviction and sentences of the appellants awarded, by the learned trial Court can be maintained is a pivotal question to be determined by us in this appeal. It is strange that the statement of P.W.3 was recorded on 28-3-2001 when the statement of P.W.4 was also recorded and then the statement of P.W.5 was recorded on 23-5-2001 and there was ample time with the prosecution to ponder upon that defect in the recording of evidence of P.W.3 might be fatal, but inspite of that Fajar Khan, P.W. Was given up being unnecessary and the prosecution evidence was closed by the prosecutor. P.W.4 is a police officer and his statement has to be taken into consideration with due care and caution. The conduct of P.W.4 brought on the record during cross-examination shows that he had not acted in an impartial manner and his statement cannot be accepted as a conclusive proof against the appellants into their guilt for maintaining their sentences. According to P.W.4 he had prepared the site-plan (Exh.P.F.) and given the details of place of recovery. We have perused the site-plan with due care and caution and it is strange that the house number or the street or the place where the said house is situated was not mentioned in the site-plan. It is also admitted by P.W.4 during cross-examination that details of the place of occurrence and the street was not mentioned by him in the site-plan. Even he failed to disclose the house number or the street where the said house was situated. He had not even mentioned the plot number in the site-plan. He also conceded that he did not enquire about the ownership of the house nor he had taken into possession any document in this respect. It clearly shows that the recoveries were not effected from the place exclusively owned by the appellants as P.W.4 stated that when they entered into the house both the appellants along with two ladies were present there. The ladies were mother and sister of the appellants but he did not mention the fact that the ladies were mother and sister of the appellants. He did not give any point in the site-plan showing the presence of the ladies at the relevant time.
10. We have also taken into consideration the conduct of P.W.4, which appears to be not above- board as through Exh.P.C. "Fard Khana Talashi", he had taken into possession .12 bore pump action and the licence of said weapon and cartridges along with one Motorcycle as well as its registration book. It is strange that these articles were having no connection with the commission of the offence by the appellants if any. There was no evidence with the prosecution that these articles were purchased from the money obtained by selling the narcotic but even then these articles were taken into possession. Similarly the police had taken into possession pistol through memo. Exh.P.A.
Which was also a licensed weapon. The three weapons according to the prosecution case were recovered from the said house and these weapons were licensed weapons but even then P.W.4 applied offence under section 13 of the Arms Ordinance XX of 1965 which was only applicable if the weapons were without licences. It was also conceded by the P.W. That he did not obtain search warrants and he did not make any writing regarding the reasons for not taking the search warrants. When the recoveries were effected at the instance of the appellants then he had also prepared the documents of "Khana Talshi" for the reason known to him. According to him it was in his knowledge that the father of the appellants was sentenced to death in a murder case but denied that he in connivance with the complainant of the murder case had involved the appellants in the present case falsely. However, during cross-examination he admitted that one Mubarik was also arrested in the present case but later on he was got discharged from the Illaqa Magistrate. He also admitted that the articles recovered in the "Jama Talashi" were not available in the Court when his statement was recorded. Though he denied that he had recovered the narcotic substance from Mubarik who was subsequently got discharged and recovery was planted on the present appellants namely Rashid and Nasir yet we have noticed that they were aged about 20/22 years having no previous history of their involvement in such-like cases whose father was already in the jail and possibility of their false implication in the present case in place of Mubarik who was arrested in the present case due to the conduct of P.W.4 noted down by us cannot be ruled out.
11. In the above facts and circumstances the statement of P.W.4 alone is not found sufficient for maintaining the conviction of the appellants. Keeping in view the quality of the prosecution evidence, which is not found worthy of reliance, the recovery of huge quantity of narcotic substance alone is not sufficient for maintaining the conviction merely on the ground that the same could not be falsely planted. It was the duty of the prosecution to prove the allegations by producing sufficient evidence of unimpeachable character and if it has failed to discharge its onus beyond any shadow of doubt and the defence succeeded in making dent in the prosecution evidence it is not necessary for the Courts to award punishment in each and every case. The Control of Narcotic Substances Act is a special law wherein harsh sentences have been provided for the prevention of such offences which in fact are against the society as a whole and when huge quantity of narcotic substances were alleged to be effected from the appellants the prosecution should be more vigilant in production of its evidence but after perusal of the evidence on the record we have no hesitation in holding that the prosecution has not been able to bring home guilt to the appellants beyond any shadow of doubt. Hence this appeal is accepted, the impugned judgment of conviction and sentence is set aside and both the appellants are acquitted by extending them the benefit of doubt. Appellant No,1, Muhammad Rashid has already served out the whole sentence while appellant No,2, Muhammad Nasir shall be set at liberty forthwith if he is not required in any other criminal case.