' M. NAEEM ULLAH KHAN SHERWANI, J.-Zahid Iqbal, appellant was tried by a Judge Special Court Control of Narcotic Substances Act, 1997/Judge Juvenile Court, at Gujranwala for retaining 1200 grams of charas in his possession who found him guilty of the said charge, convicted him under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo rigorous imprisonment for three years and fine of Rs, 10,000 or in default whereof to further undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. Was accorded to him.
2. Zahid Iqbal convict has approached this Court by filing the instant appeal to call in question conviction and sentence passed against him by the said learned Judge.
3. Synopsis of case is this:- ' On 1-11-1999 at 3-30 p.m. Tahir Mehmood A.S-I. Along with a contingent of police officials was present at Kotli Rustam Road on patrol duty when he received a spy information that Maqsood Bibi alias Sodu, a notorious narcotic seller had 3/4 kilograms of Charas in her possession and her son Zahid Iqbal helps her in its selling. Accordingly a raid was conducted and Zahid Iqbal was apprehended in front of his house. 1200 grams of Charas wrapped in black polythene bag stood recovered from his possession. Ten grams out of which were separated for chemical analysis purposes and two sealed parcels were prepared. Tahir Mehmood A.S-I. Sent the complaint (Exh.P.B./l) ' through Muhammad Rafique constable to the police station for formal registration of a case. Consequent upon receipt of complaint, Muhammad Sarwar MHC drew up formal F.I.R.
(Exh.P.B.) at 3-40 p.m. Correctly without any addition or substraction on his part.
4. The role of an investigator was assumed by Zahid Mehmood S-I. (P.W.l). He examined all relevant witnesses under section 161, Cr.P.C., and after completing the investigation submitted challan against the accused.
5. The trial Court after observing all the legal formalities framed charge against > the accused. It was put to him to enable him to explain his position. He refuted the charge1 and claimed to be tried. Accordingly prosecution was directed to produce the relevant evidence to substantiate charge against the appellant.
6. Prosecution ventured to produce as many as five witnesses in support of its case. Muhammad Rafique constable (P.W.2) was handed over sealed parcel by Muhammad Sarwar Moharrir on 28- 12-1999. He delivered the same in the office of Chemical Examiner, Lahore on the same day.
Muhammad Riaz constable (P.W.3) testified to the factum of recovery of charas from the appellant.
Muhammad Sarwar Moharrir/HC recorded formal F.I.R. Whereas Tahir Mehmood A.S-I. (P.W.5) supervised the raid proceedings.
7. The learned Prosecutor after tendering in evidence report of the Chemical Examiner (Exh.P.D.) declared the prosecution case closed.
8. Now the case had jumped into next stage of trial pertaining to examination of the accused under section 342, Cr.P.C. All the incriminating material was brought to the notice of the accused to enable him to explain all circumstances appearing against him and to furnish his standpoint, if any. He denied correctness of the allegation and claimed his innocence. He opted to appear in witness-box under section 340(2), Cr.P.C. In disproof of accusations brought against him. Hd produced Muhammad Rafique (D.W.l) in his defence. His stand point will be discussed during reappraisal of evidence.
9. Learned counsel for the appellant forcefully argued that P.Ws. Have made contradictory statements and as such ceased to be reliable. They have been wrongly relied upon by the trial Court. The appellant's father is an employee of police department. Relations between the spouses became strained in consequence of which appellant's mother was divorced. His father was constantly pressuring the appellant and his mother to vacate the house but they did not yield to his demand. He became vindictive and managed to enable tfye appellant in this false case. He produced his defence version by production of Muhammad Rafique (D.W.l). The prosecution did not challenge his statement during cross-examination. Defence version - has been discarded without assigning any proper judicial reason. Appellant is innocent and may be acquitted of the charge.
10. Learned counsel for the State could not effectively controvert the specific stand taken up by the appellant and half heartedly supported judgment of the trial Court.
11. We have with utmost care and devotion heard and considered arguments addressed at the bar by learned counsel for both the sides. We have also perused the record with their able assistance.
We have subjected statement of Muhammad Riaz constable (P.W.3) and Tahir Mehmood - A.S-I.
(P.W.5) to severe criticism. Muhammad Riaz constable (P.W.3) has, alleged that his statement was recorded at the police station. According to him a contingent of police officials left the police, station at about 8-30 a.m. Whereas information regarding the occurrence was received at about 2-45 p.m. After leaving the police station they had done patrolling on two motorcycles belonging to the Investigating Officer and Basharat constable. Police officials had set up a barricade at a very short distance from house of the appellant. Information was received after about 15/20 minutes of setting up the barricade. When they reached at the venue of occurrence, mother of the appellant was not available which demolishes truth of information received by them. Thereafter mother of the appellant was not searched at her house or any where else. At about 15/20 persons had gathered there but none of them was associated in the proceedings to prove that these were not the sham proceedings. According to this witness he and Basharat constable had taken the accused to the police station at 3-00/ 3-30 p.m. According to Tahir Mehmood A:S-I. (P.W.5) complaint (Exh.P.B./l) was despatched to the police station through Muhammad Rafique constable for registration of the case. Recovery memo. (Exh.P.A.) was drawn up by him at the spot. We notice that case F.I.R. Number, date and offences have been mentioned right at the top of recovery memo. It becomes crystal clear that when recovery memo, was prepared, case F.I.R. Number and other particulars were not available with the Investigating Officer. Complaint had been sent to the police station through a constable for getting a case registered. Case number and other particulars were to be received by him after the case had been registered at the police station and not prior to that. No case stood registered when recovery memo, was prepared at the spot.
Availability of case F.I.R. Number, date and offences in the recovery memo, shows that recovery memo, was prepared at the police station after registration of the case and not at the spot. There are serious doubts regarding preparation of recovery memo, at the spot, then no value has to be attached to the recovery itself. In case of spot recovery, statements of the recovery witnesses have to be recorded soon thereafter at the spot. Muhammad Riaz constable (P.W.3) had admitted that his statement was recorded at the police station. This also makes the entire proceedings doubtful.
Tahir Mehmood A.S-I. (P.W.5.) had admitted during course of cross-examination that patrolling was done on foot but he reached at the spot on a motorcycle from Kotli Rustam Road. He did not bother to join any independent respectable person of that locality in the recovery proceedings. Tahir Mehmood (P.W.5) stated that appellant made an attempt to escape on seeing the police party but he was apprehended by them. This fact has not been mentioned by Muhammad Riaz (P.W.3). Place of recovery is also not mentioned in the recovery memo. (Exh.P.A.). He admits that about 20/25 persons had assembled during recovery proceedings but he did not join anyone of them in the investigation. He also admits that they took the accused straight to the police station. He denied any dispute between father and mother of the appellant who had been divorced and that his father wanted to usurp their house.
12. It is a case in which the established fact is that about 20/25 persons have gathered during recovery proceedings but they were never asked by the Investigating Officer to join the recovery proceedings. He himself assumed the role of an investigator and made his subordinates witnesses to testify to the - factum of recovery. We take it as unholy practice of the police. This mode of investigation inspires no confidence. Citing of police witnesses becomes essential when independent people are not present during recovery proceedings. In our view it was a nasty choice of the Investigating Officer to exclude independent persons who were readily available. The appellant in his answer to question No, 4 stated as under:- '
' "In fact my father is an A.S-I. In police. He had divorced my mother in the year 1998. There is a dispute of the house and ownership between my father and my mother. I have been supporting my mother in the said dispute. My father was annoyed with me due to the above said reasons and he falsely involved me in this case by way of his using personal source. The complainant of this case had friendly relation with my father. My father intends to usurp this house from my mother. I am innocent in this case. Nothing was recovered from my possession. "
13. He also made statement under section 340(2), Cr.P.C. In disproof of allegations levelled against him% He has fully narrated the story of his suffering at the hands of his father. The appellant has two sisters and one brother who are living with their mother and earns his livelihood as a Riksha Driver. He also stated that the Investigating Officer and constables were inimical towards him. To substantiate his plea he produced Muhammad Rafique as D.W.l According to him appellant was available at his shop at about 1-00 p.m. To take milk as he was not keeping well. Two police constables Rafique and Basharat arrived there. They took him outside the shop and asked him as to why dispute regarding property was not being settled by them. The accused replied that his mother should be contacted. He also stated that appellant's father is Thanedar posted at Bahawalpur. The constables took him to the police station. No recovery was effected from him and that the case was false. Reason for false implication of the accused was a dispute of house between his parents. He has also alleged that he is Mohalladar of the appellant and not only his mother but also the Mohalladars had gone to the police station to depose about innocence of the appellant. We have compared and contrasted both the versions. Prosecution version does not appear to be legitimate. It is contaminated with several impurities, which render it unbelievable.
Version put forth by the appellant under sections 342, Cr.P.C. And 340(2), Cr.P.C. Is supported by the statement of Muhammad Rafique (D.W.l). We entertain serious doubts qua genuineness and truthfulness of the prosecution version. We are of the firm view that prosecution failed to establish its case beyond any shadow of doubt against the appellant. We have no other option but to acquit him of the charge. He is present on bail. His surety is discharged of his liability.