' HASNAT AHMAD KHAN, J.--- Through this consolidated judgment we intend to dispose of two appeals bearing Criminal Appeal No,702 of 2004 filed by Nazir Ahmad convict and Criminal Appeal No,733 of 2004 filed by Muhammad Aslam convict, as both the appeals have arisen out of one and the same judgment dated 3-11-2004 passed by learned Additional Sessions Judge, Vehari.
2. Both the above mentioned appellants were tried by the learned Additional Sessions Judge, Vehari, in case F.I.R. No,286 of 2001 dated 10-7-2001, for the offence under section 9(c) of Control of Narcotic Substances Act, 1997, registered with Police Station Sadar, Vehari. At the conclusion of the trial, they had been convicted under section 9(c) of (ibid) Act, and sentenced to life imprisonment with a fine of Rs,5,00,000 (five lac) each. In default whereof, they were ordered to undergo further one year's R.I. Each. However, both of them were given the benefit of section 382-B, Cr.P.C. Hence the instant appeals calling in question the impugned judgment.
3. Precisely the prosecution story as unfurled in the F.I.R. (Exh.P.B./1) lodged at the instance of Abdul Sattar, S.-I. (P.W.4) is that on 10-7-2001 on the tip off, furnished by Raees Ahmad, accused of F.I.R.
No,285 of 2001, a raiding party was constituted by the complainant and on the pointation of Raees Ahmad, a raid was conducted at the Dera of one Saif Ullah Araien. On seeing police party, Nazir Ahmad, appellant allegedly fled away from the spot, whereas, Muhammad Aslam appellant was apprehended at the spot along with a bag containing 11 packets of Charas weighing 11-1/2 kilograms. 10 grams of Charas was separated from each packet and sealed into a parcel, after preparing a recovery memo. Exh.P.A. Thereafter, said Abdul Sattar (P.W.4) drafted the complaint (Exh.P.B.) which was sent to the police station through Naseer Ahmad constable for registration of case, whereupon, Muhammad Iqbal, A.S.-I. (P.W.3) chalked out formal F.I.R. (Exh.P.B./1). Thereafter, the complainant handed over the case property to said Muhammad Iqbal, MHC (P.W.3) for safe custody and its onward transmission to the office of Chemical Examiner for analysis. The investigation of said case was entrusted to Khuda Bakhsh S-I. (P.W.6), who on receipt of the complaint sent by Abdul Sattar, S.-I. Proceeded to the spot and prepared rough site plan (Exh.P.6).
After recording the statements of the P.Ws. Under section 161, Cr.P.C. He submitted challan against both the accused-appellants.
4. Both the appellants were charge-sheeted by the learned Additional Sessions Judge, Vehari.
During the course of trial, the prosecution came forward with 6 witnesses. Ghulam Mustafa, Head Constable, who had received 11 sealed parcels from the Moharrar of the police station, appeared as P.W.1 and deposed that the said parcels were received by him on 20-7-2001 and were produced in the office of Chemical Examiner on 21-7-2001. Sana Ullah, Foot Constable, who was one of the witnesses of recovery of contraband material, appeared as P.W.2 and deposed in favour of the version advanced by the prosecution. Muhammad Iqbal, A.S.-I. Who at the relevant time had chalked out the formal F.I.R. (Exh.P.B./1) appeared as P.W.3. Apart from proving the formal F.I.R. He deposed that he had received 11 sealed parcels which were got transmitted to the office of Chemical Examiner by him. Abdul Sattar complainant appeared as P.W.4 and supported the version given by him .In his complaint. Exh.P.B. On the basis of which F.I.R. .Exh.P.B./1 was registered.
Haq Nawaz, S.-I. Who had arrested Nazir Ahmad, appellant on 16-1-2002 appeared as P.W.5. In the last, Khuda Bakhsh, S.-I. Who had submitted the challan against the appellants appeared as P.W.6.
After tendering the positive reports of Chemical Examiner in evidence as Exh.P.D. Exh.P.E., Exh.P.F. Exh.
P . G. , Exh. P H. , Exh.P.J , Exh . P . K. Exh. P. L. , Exh. P. M . And Exh.P.N., the learned A.D.A. Closed the prosecution case. Thereafter, the statements of the appellants were recorded under section 342, Cr.P.C. In response to question No,4, Nazir Ahmad appellant replied as under:-- "My family had longstanding enmity with the police since many years and in this regard my mother filed a Writ Petition No,10428 of 1998 in the Honourable Lahore High Court, Multan Bench, Multan, in which Honourable High Court deputed the bailiff and he raided at Police Station Saddar Vehari. We had enmity with police due to this reason on one hand and on the other Afzal Yousaf, Naib Nazim and Ex-member District Council is also resident of Chak No,5/WB. We had party faction and sectarian faction against each other. Zafar Iqbal Dogar, SDPO, Vehari was the then S.H.O. Police Station Saddar Vehari, who is friend of said Afzaal Yousaf and on his behest police falsely incriminating me in this false case. All the P.Ws. In this case are police officials and no independent witness has been examined in this case. The whole recovery proceedings were fake and fabricated."
' While replying to the same question, Muhammad Aslam appellant made a statement to the following effect:-- "I am tenant of Saifullah. I was present on the tube-well of said Saifullah in the evening time when I was apprehended. Nothing was recovered from me at that time. Police falsely roped me in the instant case without any justification. I am innocent."
' However, both the appellants opted not to appear in their own evidence under section 340(2) of Cr.P.C.
5. Muhammad Aslam appellant produced two witnesses in his defence. Khuda Bakhsh while appearing as D.W.1 deposed that at the relevant time, he was working near the tube-well situated outside the Dera of Saif Ullah. He further deposed that in his presence Muhammad Aslam appellant was apprehended by the police, but nothing was recovered from his possession. To the similar effect, a statement was made by Muhammad Sharif, D.W.2 testifying the innocence of Muhammad Aslam appellant. Nazir Ahmad appellant produced various documents in his defence. After conclusion of the trial, the learned Additional Sessions Judge, Vehari, proceeded to convict and sentence both the appellants as mentioned above.
6. In support of this appeal, learned counsel for Nazir Ahmad, appellant, has submitted that the appellant was neither arrested from the spot nor any contraband material was recovered from his possession. He adds that there was a previous background of enmity of said appellant with the police due to which he was falsely implicated in the present case He further adds that the prosecution has remained unsuccessful to prove the case against him beyond any shadow of doubt and therefore, the impugned judgment is not maintainable and the appellant is entitled to clean acquittal.
7. Learned counsel for Muhammad Aslam appellant has contended that though, Muhammad Aslam appellant was allegedly apprehended at the spot, yet the prosecution has miserably failed to prove its case against him; that the prosecution evidence is full of inconsistencies and contradictions; that the defence version as advanced by him was more plausible and probable. To further strengthen his argument, he has sought help from the statements of D.W.1 and D.W.2.
8. Learned State counsel has opposed this appeal tooth and nail. He has contended that a huge quantity of narcotics was recovered from the possession of Muhammad Aslam appellant, who was apprehended at the spot. He adds that the prosecution has fully proved the case against both the appellants beyond any shadow of doubt.
9. Heard. Record perused.
10. It has been straightway noticed by us that Nazir Ahmad appellant was neither apprehended at the spot nor any quantity of Charas was recovered at his instance. According to the prosecution story, Nazir Ahmad appellant had succeeded in decamping from the, spot right in presence of police party, comprising nine police officials. It is also notable that Raees Ahmad accused of F.I.R.
No,285 of 2001 who A became the cause of action in this case by giving the information that he had purchased the Charas from Nazir Ahmad and Muhammad Aslam appellants was not examined by the police during the investigation of this case. According to the prosecution version as narrated during the trial, the Dera of Saif Ullah from where the contraband material was recovered was cordoned off by the police party, yet astonishingly Nazir Ahmad appellant succeeded to flee from the spot. The site plan (Exh.P.C.) shows that the Dera in Question had got only one point of exit and entry. This fact was further admitted by Abdul Sattar, S.T. P.W.4. While lodging the F.I.R. It was not alleged that the said appellant had decamped from the spot after scaling over the wall. During the trial, prosecution had tried to improve its case by asserting that the said appellant had run away from the spot after scaling over the wall, but said statement appears to be a mala fide improvement. P.W.2 had candidly admitted that it was a dark night. Moreover, the appellant had not been shown to be the owner of Dera from where the recovery of Charas was allegedly effected.
All aforementioned facts coupled with the documentary evidence produced in defence of Nazir Ahmad appellant, which shows that some enmity existed between him and the police, have created serious doubts in our mind regarding the involvement of Nazir Ahmad appellant in the alleged crime. Hence, we are constrained to hold that the prosecution had miserably failed to prove the case against him.
11. As far as Muhammad Aslam appellant is concerned, we have found that the prosecution case qua him is also full of doubts. Though, the recovery witnesses during their examination-in-chief had supported the case of the prosecution, yet they could not face the weapon of cross- examination successfully. Their evidence was torn apart during the cross-examination. While lodging the F.I.R. It was the case of the prosecution that Muhammad Aslam appellant while running from the spot was caught red-handed, along with a bag containing the contraband material. But during the trial the whole of the evidence of the recovery witnesses has been found to be totally inconsistent and self-contradictory. As against the initial story of the prosecution, Abdul Sattar S.-I.
P.W.4, who, as a matter of fact is star-witness of the prosecution had admitted that the bag containing the Charas was lying on the ground at the relevant time and at that time the appellant had already fled away. During the cross-examination, P.W.2 had also admitted that Abdul Sattar, S.-I. (P.W.4) had lifted bag containing Charas from the spot. Similarly while setting the legal machinery into motion, it was the case of the prosecution that the appellant was arrested from the compound of the Dera of Saif Ullah but during the cross-examination, P.W.4 admitted that he (Muhammad Aslam appellant) had not been arrested within the four walls of the Dera. Said important inconsistencies and contradictions are very material. Moreover, Muhammad Aslam appellant was not owner of the Dera from where the Charas was recovered. During the cross- examination, P.W.4 had admitted that Muhammad Aslam appellant was tenant of Saif Ullah owner of the said Dera. The possibility of false implication of the appellant by way of making him scapegoat cannot be ruled out, especially when the owner of the Dera was not interrogated by the police. As mentioned above, during the evidence, it became crystal clear that the contraband material was secured while lying on the ground and the same was not recovered from the possession of the appellant, who admittedly was not owner of the Dera i.e. Place of recovery.
According to P.W.2, at the time of raid police officials had entered into the rooms where the accused were sitting. Said version also runs contrary to the prosecution story, as initially set up by the prosecution. Furthermore, the said statement of P.W.2 was contradicted by the P.W.4 who had denied their having entered the rooms of the Dera.
12. All these facts shows that the prosecution had remained unsuccessful to prove the case against Muhammad Aslam appellant also beyond shadow of doubt. It is established law that to err in acquittal is better than to err in conviction. Reliance in this regard is placed upon the case of Tahir Khan and others v. The State 2005 YLR 2220. Consequently, while giving the benefit of doubt, both the above appeals are accepted and resultantly, both the appellants are acquitted of the charge by way of setting aside the impugned judgment dated 3-11-2004 passed by the learned Additional Sessions Judge; Vehari. Both the appellants be released from jail, if not required in any other case.