M. NAEEMULLAH KHAN SHERWANI, J.---Mr. Muhammad Arshad Malik in his capacity as Additional Sessions Judge at Khushab, by virtue of his judgment, dated 5-8-2003, convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced her to rigorous imprisonment for ten years with a fine of Rs.1,00,000 or in default thereof to further undergo rigorous imprisonment for six months. Benefit of section 382-B, Cr.P.C. Was, however, accorded to her.
2. The appellant by filing the instant appeal has called in question conviction and sentence passed against her by the said learned Judge.
3. Concisely facts of the prosecution case are that on 22-12-2002, Muhammad Afzal, S.-I., Police Station Khushab was interrogating one Rehm Ali, accused of Crime Report No.312, dated 21-12-2002, under section 9(b) of the Control of Narcotic Substances Act, 1997, registered with the said police station, who disclosed that he purchased heroin from the appellant, who was still busy in that business. Consequent upon Rehm Ali's disclosure, he along with a contingent of police officials, namely, Muhammad Mukhtar, A.S.-I. Muhammad Javaid, Muhammad Afzal, Muhammad Mukhtar, Majidullah, Adalat Khan, constables, Naseem Akhtar, and Sadia Naureen, lady constables effected a raid at about 11-00 .a.m. And arrested the appellant in front of Quarter No.28, Bewgan Camp.
Heroin weighing 500 grams along with cash amount of Rs.690 was recovered from her. She was further grilled by him qua this issue. She disclosed that she had in her possession narcotics substance and led the raiding party to her house, from where she got recovered charas weighing 1010 grams. It was wrapped in a polythene shopper. Two F.I.Rs. Bearing Nos.313 and 314 stood registered against the appellant at his instance relevant to these recoveries.
4. After completion of investigation, police prepared challan and put up the same before the Court for trial of the appellant in accordance with law.
5. The learned trial Judge after consolidation of both these cases framed charge against the appellant on 20-5-2003, to which she pleaded not guilty and claimed to be tried. The prosecution was then called upon to produce evidence available at its end to establish charges against the appellant.
6. Prosecution in order to prove its case successfully against the appellant produced five witnesses in all. We would like to furnish a brief reference to the statement made by the witnesses recorded at trial. According to Lady Doctor Farhat Zohra (P.W.1), appellant was produced before her by a lady constable for her medical examination. She carried out her examination and observed no marks of violence on her person. Muhammad Afzal, S.-I. And Muhammad Mukhtar, A.S.-I. Were examined as P.Ws.2 and 3. They stated about the acts done by them while apprehending the appellant. In addition to this, Muhammad Mukhtar, A.S.-I. (P.W.3) also testified to the factum of recovery of heroin and charas from the appellant. Nasar Abbas, MHC (P.W.4) was handed over sealed parcels of narcotic substance by the Investigating Officer for their onwards transmission to the office of Chemical Examiner, Rawalpindi and he accordingly did so through Muhammad Mukhtar, constable (P.W.5).
7. Learned prosecutor gave up remaining witnesses being unnecessary and by tendering in evidence reports of the Chemical Examiner (Exhs. PH & PJ) declared the prosecution case close.
8. In order to confront the appellant with the evidence adduced against her by the prosecution and to seek her explanation with regard to her culpability in the matter, she was examined under section 342, Cr.P.C. She proclaimed her absolute innocent in the matter. She forcefully controverted the accusations brought against her.She further stated that due to avowed animosity, the police had registered false F.I.Rs., which are embodiment of falsehood. While pleading her innocence, she stated as under:- "My daughter Iram Shehzadi was raped and a case under section 10(3) of EOH was registered at Police Station Khushab. The police unduly favoured the accused party in the said case and spoiled my case. I lodged a writ against police in the Hon'ble Lahore High Court, Lahore and the police fell it ill and due to this grudge they have falsely implicated me in this case with the association of that accused party."
She did not opt to make statement on oath under section 340(2), Cr.P.C., to rebut allegations in their entirety. She desired to produce evidence in defence and after tendering in evidence copy of Writ Petition No.10930 of 2000 (Exh.DA) declared her defence close.
9. After fullest evaluation of facts and circumstances revolving around this matter, the learned trial Judge pronounced verdict of guilt against the appellant as aforementioned.
10. Learned counsel for the appellant while canvassing acquittal of the appellant raised following points for our consideration:-
(i) That there was a severe violation of section 20 of the Control of Narcotic Substances Act, 1997. It was imperative upon the Investigating Officer to have sought permission from the relevant Court.
No search warrants was obtained. No independent respectable person of the locality was either summoned or joined in the investigation. The police could easily procure presence of disinterested respectable persons of the locality.
(ii) That Rehm Ali, who was in police custody on 21-12.2002 had made a disclosure that he purchased narcotic substance from the appellant, but no raid was effected by the police on that day. It was conducted on 22-12-2002 at 11- 00 a.m. No explanation has been offered by the prosecution as to why the raid was not effected immediately on 21-12-2002 after coming to know from Rehm Ali that he obtained narcotics substance from the appellant.
(iii) That charas was in the shape of slabs and sample from only one slab was taken out. Number of slabs could not be furnished by the police officials and sample of heroin from one packet (Purri) weighing one gram was sent to the Chemical Examiner.
(iv) That papers used for preparing packets (Purrian) were not taken into possession. None of the lady constables, who joined recovery proceedings and had searched the appellant, was produced in support of genuineness of prosecution story.
(v) That daughter of the appellant had been subjected to rape, regarding which a case already stood registered against influential persons at the same police station. The police was in hand and glove with the accused and did not challan them. Thereafter, the appellant was constrained to invoke writ jurisdiction of this Court, because of all this police became vindictive. The appellant had instituted a private complaint against the accused of Zina case and now appeal against their acquittal is pending before the Federal Shariat Court.
12(sic). Learned counsel for the State supports judgment rendered by the trial Court.
13. We have consciously heard and soberly considered respective arguments of learned counsel for both the sides. We have also gone through the evidence in search of truth. We have surveyed the whole evidence for scrutiny purposes. Prosecution has produced only two recovery witnesses, namely, Muhammad Afzal, S.-I. (P.W.2) and Muhammad Mukhtar, A.S.-I. (P.W.3). No independent disinterested impartial respectable person was either summoned or associated by the Investigating Officer in the recovery proceedings. The offence is linked with the recovery of heroin and charas, so the evidence of recovery witnesses belonging to police ought to be examined very carefully, although their evidence cannot be discarded merely for being police officials. We have examined statements of both the recovery witnesses, word by word nay letter by letter. The learned trial Judge ignored all lapses on the part of these witnesses. We find that A there are major discrepancies and contradictions between their statements.
Following are the material contradictions, which suggest that witnesses were telling blatant lies:- Sr.
No.Statement of Muhammad Afzal, S.-I. (P.W.2).Statement of Muhammad Mukhtar, A.S.-I. (P.W.3).
1. He did not state that lady constables were also members of the raiding party or that they had conducted personal search of the appellant.He stated that lady constables were members of the raiding party and personal search was made by them.
2. That Rehm Ali was in custody on 21-12-2002 in the Police Station and upon interrogation at 5-30 p.m., disclosed that he got the narcotics substance from the appellant.He does not say so. He stated that on 22-12-2002, Rehm Ali was interrogated at 10-00/ 10- 30 a.m. And then raid was effected.
3. That when the appellant was arrested, she was holding a thermos in her left hand and a bag of polythene and on opening of thermos, heroin weighing 500 grams was recovered along with Rs.690.
One gram out of the wholeThat when she was apprehended, heroin in the shape of purries (packets) from the shopper and thermos was recovered from her. A sum of Rs 690 also stood recovered as sale proceeds. quantity was separated as sample.
4. He gave denomination of currency notes and their number.He did not state this fact.
5. That heroin was recovered in the shape of Purries from a shopper and thermos, but he failed to give actual number of purries and the quantity recovered from the shopper bag and the thermos. He admitted that each purri was of one gram, but could not give number of purries. He checked one purri and found that it was of one gram. Also admitted that he collected the heroin in the shape of purries and then it weighed 500 grams. He further admitted that parcel of heroin was not in the shape of purri.
He also admitted during cross- examination that charas was in the form of slaps, which was collectively weighed and not independently. Sample was made by him by separating charas from one slab. He admitted that writ had been filed by the appellant.That ten grams of charas from 1010 grams was separated by way of sample. During cross examination he stated that Muhammad Afzal, S.-I. And lady constables arrested the appellant and personal search was conducted by the lady constables. He also stated that charas was in the shape of slabs stuck up with each other.
It wa in packed condition. He failed to give number of slabs of charas. He admitted that the appellant had got registered a case of zina regarding her daughter, but showed his ignorance that police had not intentionally challaned the accused mentioned therein. He refused to agree that a writ had been filed by the appellant.
' In the instant case, statements of both the witnesses are at great variance. They do not tally with each other and serious contradictions in between their statement clearly suggest that the case was prepared at the police station. The police did not effect a raid on 21-12-2002, when there was no formidable hurdle in their way and they could catch hold of the criminal with due haste with narcotics substance. They had sufficient time to obtain search warrants under section 20 of the Control of Narcotic Substances Act, 1997, which was not procured for the reasons best known to the Investigating Officer.
14. Samples of 10 grams charas only from one slab and one gram of heroin from a packet were dispatched to the office of Chemical Examiner, so the result of its report would be limited to the quantity dispatched by the police pertaining to one packet of charas and one packet of heroin, although it was subsequently stated by the Investigating Officer that the heroin was collected/mixed by him. We find .That at each step the police officials have told big lies. When two witnesses regarding same facts make contradictory statements, their evidence is rendered incredible. The place of recovery is flanked by inhabited houses and is situate well within the populated area. What prevented the police to take some independent person with them to witness the recovery proceedings? Muhammad Afzal, S.-I. (P.W.2) was produced in handcuffs before the trial Court. Unless he had committed some heinous crime, he would not have been arrested. It clearly shows that he does not have a blameless conduct or reputation.
15. Factum of animosity in between the appellant and the local police suggests that the police had the motive to build up a false case against the appellant. Her daughter was raped and case was registered at the same police station. Police unduly favoured the accused and did not challan them, which compelled the appellant to file a writ petition before the High Court. The matter did not end here. She also instituted a private complaint against the alleged wrong doers. The police was gravely offended with her and that matter regarding Zina with daughter of the appellant is still pending before the Federal Shariat Court.
16. The defence version does not appear to be hollow or baseless. Reasonable possibility that the defence version might be true cannot be excluded from consideration. There are serious defects and flaws in the prosecution evidence, which strike at the very root of the case. The case is swollen with a large number of real doubts, benefit of which has to be extended to the accused.
17. For all these reasons, by accepting this appeal, we quash conviction and sentence of the appellant. She is directed to be released from custody forthwith if not required to be detained in any other case.