' SHEIKH AZMAT SAEED, J.---Muhammad Sadiq was tried along with his two sons, namely, Ali Imran and Qamaruz-Zaman by the learned Additional Sessions Judge, Okara, for the commission of offence under section 9(c) of the Control of Narcotic Substances Act 1997. Vide judgment impugned dated 3-2-2003, appellants Muhammad Sadiq and Ali Imran on having been found guilty of the offence under section 9-B of the Act ibid. , were accordingly convicted and sentenced to undergo 7 years' R.I. And to pay fine of Rs,20,000 each. In case of non-payment of the fine, the learned trial Judge directed that each of the convicts shall further under go S.I. For six months. They were also granted the benefit of section 382-B, Cr.P.C. The co-accused namely Qamar-uzZaman was acquitted of the charge.
2. Against their aforesaid conviction and sentences, the appellants preferred the captioned appeal, which we propose to dispose of through this judgment.
3. The prosecution case emanating from case F.I.R. No,168 of 2000 registered at Police Station Shahbhore on the basis of the complaint Exh.PA authored by Muhammad -Shahbaz Sub-Inspector is that on 2nd of June, 2002, the police party headed by aforesaid Sub-Inspector, while on patrol duty, had received a secret information to the effect ihat appellants Muhammad Sadiq and Ali Imran along with Intizar Hussain were selling Charas, and could be caught red-handed.
Accordingly, the police party raided the premises, and on their sight Intizar Hussain co-accused is stated to have fled away, while both the appellants were approached at the spot. It is stated that 8 K.Gs. Charas was recovered besides a motorcycle parked in the premises was also taken into possession in terms of section 550, Cr.P.C. Out of the aforesaid quantity of narcotic, the police had separated 10 grams of Charas and dispatched it to the Chemical Examiner for purpose of its chemical analysis.
4. Charge was framed by the learned trial Judge on 11-11-2002 and in order to substantiate the case against the appellants, the prosecution examined five witnesses in all. P.W.1 Abdul Ghaffar FC 700 deposed about the dispatching of Charas to the office of the Chemical Examiner on 21-6-2002.
P.W.2 Muhammad Latif Head Constable stated that on the receipt of complaint Exh.PA, he drafted the formal F.I.R. Exh.PA/1 at the Police Station. Muhammad Tahir Khan S.-I./S.H.O. Appeared as P.W.3 and deposed about the steps taken for completion of investigation of the case and submission of report in terms of section 173, Cr.P.C. Before the learned trial Judge. In his cross-examination, P.W.3 admitted that Qamar uz Zaman accused filed writ petition in this Court against the highhandedness of the police and Salah-ud-Din and Khalid Mehmood, whereafter, the said S.H.O.
Was transferred, and P.W.3 became seized of the investigation. He also admitted that there was a deep-rooted enmity of murders in between Khalid Mehmood, Salah ud Din and the appellants. He further admitted that the appellant Ali Imran was a minor and student at the time of the commission of the alleged offence and also admitted that Qamar-uz-Zaman had established his plea of alibi, as he was admitted in the Rural Health Center, Bamanbala, and that P.W.3 had himself verified this fact from the concerned RHC and found that Qamar-uzZaman in fact was admitted there at the relevant time of the commission of the offence. He further admitted that in the course of investigation carried out by him, it could never be established that Intizar Hussain mentioned in the F.I.R. Was Qamar-ur-Zaman or Qamar-uz-Zaman was ever known as Intizar Hussain. P.W.4 Muhammad Shahbaz S.-I. And P.W.5 Ibrahim Abid deposed about the recovery of Charas from a tin-case present at the premises. In addition thereto, the prosecution also tendered in evidence the report of the Chemical Examiner Exh.PE.
5. In the course of his examination under section 342, Cr.P.C. On a specific question put by the Court, the appellant Muhammad Sadiq had doubted the truthfulness of the prosecution case denying to have any son in the name of Intizar Hussain. He further deposed that the police on having come to know about this fact tried to implicate his son Qamar-uz-Zaman who was never known by the name of Intizar Hussain. The appellant Muhammad Sadiq termed the report of the Chemical Examiner Exh.PE as false and result of collusion between the police and the office of the Chemical Examiner. He further stated that he had deep-rooted enmity with Khalid Mehmood and Salah-ud-Din his co villagers on account of a murder case. According to the appellant, said persons having influence in the area and being hand in glove with the local police, had falsely involved him along with his sons in the instant case.
6. Statements of Ali Imran and Qamar-uz-Zaman were also recorded wherein they had pleaded their innocence and false implication due to enmity. It may be stated that age of the appellant Ali Imran was recorded as 18 years by police at the time of his arrest but during the trial it was candidly conceded that he was a minor.
7. At the conclusion of the trial, as stated earlier the learned trial Judge convicted and sentenced the appellants on charge under section 9-B of the Act ibid and awarded them the sentences enumerated above, while acquitted the co-accused namely Qamar-uz-Zaman by giving the benefit of doubt.
8. With the assistance of the learned counsel for the appellants and the State, we have gone through the entire evidence, on the record and heard them at length.
9. It was argued that the mode and manner in which the recovery proceedings were conducted by police was not above board and smacked of malice on the part of the police to rope in maximum number of male members of the appellants' family in this case in derogation of the mandatory provisions of the law. It was further asserted that whole prosecution story was highly improbable and the appellants were victimized at the instance of their admitted and staunch adversaries in the area by police. It was also contended that the same evidence forming the basis for acquittal of the Qamar-uz-Zaman could not and should not safely be relied upon to sustain the conviction of the appellants in this case and that the whole prosecution evidence does not at all establish the guilt of the appellants.
10. The learned counsel for the State controverts the contentions raised by the learned counsel for the appellants and submits that sufficient evidence exist on the record to show the involvement of the appellants with the offence.
11. That the anxiety of the local police who are the only P.Ws. In this case to rope in all the male members of the appellants' family is borne out from the record, because in addition to the two appellants, another person namely Intizar Hussain was also allegedly present at the premises who is stated to have escaped at the time of the raid, and in spite of this fact, as has been conceded by P.Ws.3 that there is nothing on the record to suggest that Intizar Hussain was Qamar-uz-Zaman the acquitted co-accused or that Qamar-uz-Zaman was ever known as Intizar Hussain, he was roped in. It has also been conceded by P.W.3 that he had personally verified that at the relevant time, Qamar-uz-Zaman was admitted in the RHC at Bhambola. Even this did not persuade him not to proceed further against said Qamar-uz-Zaman son of the appellant Muhammad Sadiq and brother of appellant Ali Imran. In this view of the matter, we are of the view that case against Ali Imran appears to be in extension of the anxiety of the local police to implicate all the male members of the appellants in this case. We have further noticed that nothing was recovered from the person of Ali Imran appellant, and in our view his mere presence at the premises from where the Charas was alleged to have been recovered does not at all demonstrate his culpability, more particularly, when admittedly he was minor and a student.
12. Adverting to the case of appellant Muhammad Sadiq, admittedly nothing was recovered from his person, and the so called recovery was effected only from the premises allegedly owned by him. In this context, suffice it to say that place of recovery i.e,, "Dera" (cattle-shed) is a place meant for tethering the cattle and is not the residence of the appellants and there C is nothing on the record to establish the absolute exclusivity of possession of appellant Muhammad Sadiq. This aspect If the matter must be examined in the context of the suspect bon fides of the local police and in the circumstances the ends of justice would be best served by reducing the sentence of the appellant Muhammad Sadiq to one already undergone by him.
13. The upshot of the above discussion is that the prosecution has failed to produce confidence- inspiring evidence for proving its case against Ali Imran beyond reasonable shadow of doubt, therefore, his appeal must succeed and by, allowing it we set aside the conviction and sentences of the appellant Ali Imsan and acquit him of the charge. His sentence already stands suspended by this Court in terms of order dated 13-4-2004, and thus, he stands relieved of the bail bonds furnished on his behalf. As regards appellant Muhammad Sadiq, we hold that the sentence already undergone by him would be deemed sufficient to meet the ends of justice and his sentence of fine is set aside.
"Appeal accepted in the terms indicated ibid".