' JUSTICE QAZI EHSANULLAH QURESHI (CHAIRMAN).---The captioned appeal has been filed by the appellant challenging the judgment passed by the Chief .Court as well as trial Court, dated 7-9- 2005 and dated 30-10-2004, respectively.
2. Succinctly narrated facts of the case are that appellant was booked under section 9(c) of the CNSA, 1987, on the allegation that opium weighing 34,00 grams was recovered from his possession, as indicative from F.I.R. No,9 of 2004, dated 2-6-2004 complete challan was submitted before the trial Court and after conclusion of trial, the appellant was convicted and sentenced to life imprisonment, with a fine of Rs,one lac, in the event of default to undergo further imprisonment of 5 years' R.I., however, the benefit of section 382-B, Cr.P.C. Was extended to the appellant. Aggrieved of the said order the appellant went in appeal before the Chief Court, the learned Divisional Bench of the Chief Court after hearing the parties maintained the conviction but modified the judgment to the extent of punishment which was reduced from life imprisonment to two years imprisonment vide judgment, dated 7-8-2005. Still not satisfied the appellant preferred an appeal before this Court.
3. The learned counsel for appellant mainly assailed the entire proceedings conducted by the trial Court that the statement recorded under section 342, Cr.P.C. Is violative to spirit of the provision that no specific question as to recovery of psychotropic substance was put to accused. That the evidence available on record is contradictory, witnesses differ with each other, which material cannot reconcile as to recovery of narcotic drug that accused was apprehended and arrested by an officer below the rank of Sub-Inspector thereby provision of section 21, CNSA was not strictly complied with, the learned counsel in this regard placed his reliance on the following case-laws:-- 1997 SCMR page 1494
(a) cProhibition (Enforcement of Hadd) Order (4 of 1979)--- ----Art. 4---Constitution of Pakistan, 1973 Art.203-F, (2-B)---Leave to appeal was granted to consider the contentions that the heroin was sent to the laboratory after 21 days of its recovery from the accused without any explanation for the inordinate delay and that material contradiction in the prosecution evidence which had falsified the prosecution case had been ignored by the courts below on the ground that such contradiction appeared to be gratuitous admission on the part of the witnesses.
(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)--- ----Art. 4---Appreciation of evidence---Police witness---No doubt in absence of any mala fidei or motive for false charge reliance can be placed on the statements of official witnesses but when recovery of the substance by itself is the main offence the statements of such police witnesses need to be properly appraised and minutely scrutinized and the benefit of doubt, if any, arising from the reading of their statements should be extended to the accused.
(c) Prohibition (Enforcement of Hadd) Order (4 of 1979)--- ----Art. 4---Appraisal of evidence---Evidence---Observation of the Courts below that the contradiction pointed out in the statements of the two police witnesses was gratuitous in order to help the accused, was damaging for the prosecution case because it had not only adversely reflected on their credibility but had created doubt in the prosecution version of the occurrence and it was unsafe to base reliance on their statements in the absence of any other independent corroborative evidence---Contradictions in the statements of the recovery of witnesses with regard to the place of apprehension of accused and the weighing and preparation of the parcels of the recovered substance, were material and to some extent in line with the statement of the accused---Considerable delay in sending the sample parcel to the Chemical Examiner had not been explained by the prosecution in evidence---Accused was acquitted on benefit of doubt in circumstances.
PLD 1995 SC page 343(c)
(c) Criminal Procedure Code (V of 1898)--- ----S. 342---Aims and objects of S.343, Cr.P.C. Is that the Court should draw the attention of the accused to the specific points in evidence upon which the prosecution relies to prove its case against him so that he may have opportunity to give any explanation if he so desires---Section 342, Cr.P.C. Also aims at bringing to the notice of the accused such points of evidence which are likely to influence the mind of the Court to ,draw adverse inference against him.
PLD 1998 SC (AJ&K) page 31
(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)--- ----Arts. 3 & 4---Criminal procedure Code (V of 1898), S.342---Natural justice principle of--- Violation---Out of 23 bottles of whisky allegedly recovered from 2 bottles were sent to Chemical Examiner for his report and his report being positive, was admitted into evidence without putting same to accused under S.342, Cr.P.C. For seeking explanation on that incriminatory piece of evidence---Such lapse on the part of Trial Court had resulted into an illegality as no one could be condemned unheard---Where a person was to be charged with any penal liability, he should be made aware of all facts and circumstances existing against him in order to enable him to give explanation in respect of those charges and evidence produced against him---Departure from such procedure could be fatal to prosecution as a very important step in the trial would, thus, be by-passed vitiating the entire trial---Accused should be heard, not merely on what was prima facie proved against him---But also on every circumstance appearing in evidence against him.
Last but not the least about benefit of doubt he relied on PLD 1963 SC page 17(b)
' Benefit of doubt choice between doubting the statement of (an eye-witnesses) or that of A, (Sub- Inspector of Police) who investigated case---Principle, re-benefit of doubt applicable---Benefit to go to accused. .
4. The learned counsel for the A.N.F. However, vehemently opposed the contentions raised by the learned counsel for the appellant and stated that there is no contradiction in the statements of prosecution. That as for as the observations made by the learned Chief Court in his judgment vide para.4, about abandoning the star-witness. Assistant Director, Hajat Mir A.N.F. Was hypothetical are alien to record, the Assistant Director ANF appeared in the witness-box, who has categorically stated the facts while his statement being recorded before the Court, at the most he could be declared as hostile witness, that the prosecution has successfully proved the case and brought home the guilt against the accused, minor contradictions/discrepancies if any, are not damaging to the cause of prosecution. That the learned counsel for the appellant failed to bring any solid material, from which adverse inference can be drawn. That the appellant was convicted for life with fine to the tune of Rs,one lac which however, was modified by the Chief Court and sentence was reduced to two years' R.I. Which he has eready undergone. In this view of the situation it is a futile exercise on the part of appellant and also amounting to wasting of precious time of the Court.
So for the arrest by an officer below the rank of Sub-Inspector is concerned a crutial judgment of apex Court has come in the field, which is quoted as below:-- SCMR 2003 page 1237
(a) Control of Narcotic Substances Act (XXV of 1997)-- - ----Ss. 9, 21 & 22---Criminal Procedure Code (V of 1898), S.537---When the prosecution had established the factum of recovery beyond shadow of doubt and proved the accusation to the hilt, and no other officer of higher rank than A.S.-I., who was incharge of the Police Station, was available, raid conducted and investigation made by the said police officer in violation to the provisions as contained in Ss.21 & 22 of the Control of Narcotic Substances Act, 1997, would not vitiate the trial and at the most such an irregularity could be cured under S.537, Cr.P.C. As it had caused no prejudice to the accused.
(b) Control of Narcotic Substances Act (XXV of 1997)--- ----Ss. 29 & 9---Criminal Procedure Code (V of 1898), S.103--Raid was conducted as a result of tip-off to the Assistant Sub-Inspector of Police (the complainant) when he was patrolling and it was not possible for him to have completed the time consuming formalities at the cost of disappearance of the accused---Contention concerning violation of S.103, Cr.P.C. Was fallacious in the light of S.29 of the Act---Provision of S.103, Cr.P.C. Had been excluded in the light of S.29 of the Control of Narcotic Substances Act, 1997---Reluctance of general public to become witness in such-like cases was a judicially recognized fact and there was no option left but to consider the statement of an official witness as no legal bar had been imposed in that regard---Police officials were equally good witnesses and could be relied upon if their testimony remained unsheltered during cross-examination.
5. We have heard the learned counsel for the parties, gone through the record at length.
6. It appears from the record that the case in hand had been mishandled and the learned Courts below have not applied their mind judiciously:-
(i) Statement of accused under section 342, Cr.P.C. Was recorded in violation of basic ingredients of said provisions. No specific question was put regarding charge leveled against him, in order to enable him to advance explanation on the points on which the prosecution relies and the Court likely to be impressed. By not putting the direct question on the point going against him, and not seeking explanation on the incriminatory piece of evidence, such omission on the part of the Court is a gross illegality and tantamounts to condemning him unheard.
(ii) Material discrepancies in the evidence were also discovered, as to contradiction in statement, recovery of substance, carrying out its weight the place of apprehension of accused and preparation of the parcel of the recovered substance and sending to Chemical Examiner.
(iii) Constable who took the sample for the chemical examination was not produced before the Court as witness, which is also conducive to the case of accused.
(iv) It is crystal clear from the statement of P.Ws.1, Hajat Mir that accused was arrested by an A.S.-I.
Nasrullah P.W.2, despite prior information. However, it can be safely ignored if a person is arrested by an officer below the rank of Sub-Inspector. If he is nabbed abruptly or comes across all of a sudden or during Naqabandi etc. Or at the time of information a competent officer is not available and there is apprehension. Of disappearance of accused due to time consuming formalities for the purpose, but in the event of prior information and availability of competent officials of the raiding party it was their bounden duty to abide by the provisions of section 21, CNSA so in as such arrest by an officer below the rank of Sub-Inspector was illegal as Hajit Mir A.D. ANF P.W.1 was very much available and it appears that he intentionally sent the lower staff. So the judgment referred is not applicable in the case.
(v) We have also seriously noticed that the trial Court while closing the evidence of the prosecution, had not applied its mind properly as in the closing line it is mentioned that P.W.1, Hajit Mir is abandoned by the prosecution, which fact is contrary to the record the statement of said P.W. Was recorded, in the circumstances he could be declared hostile by the prosecution. Similarly the learned Chief Court despite observation that the entire evidence is contradictory still they had maintained the judgment which too is lacking proper application of judicial mind.
(vi) The Chief Court was influenced by the quantity of sample sent for chemical examination hence reduced the imprisonment from life imprisonment to two years' RI. Evaluating the samples as entire quantity, when bundle of 3400 grams was allegedly recovered which total psycho substance was not required to be sent for chemical examination, sample is always separated from the bundle which in this case was properly separated from one pack and sent to Chemical Examiner. In this scenario punishment cannot be confined to sample, sent only however, sample has to be separated from each bundle and if sample from any bundle is not taken that bundle can be ignored from total quantity for the purpose of punishment as envisaged in section 9, CNSA.
' As sequel to above, material discrepancies, contradictions in the evidence as to arrest, recovery of substance, weighing of samples, sending of sample we are constrained to accept the instant appeal and set aside the impugned judgment passed by Chief Court, dated 7-9-2005 and trial Court, dated 30-10-2004 and acquit the appellant from the charge, file be consigned to record, no order as to cost.