' SYED SHABBAR RAZA RIZVI, J.--- The learned counsel has filed this criminal appeal under section 410, Cr.P.C. Against conviction and sentence of the appellant which was passed on 10-6-2003 by the Judge, Special Court, Control of Narcotic Substances, Lahore in case F.I.R. No,21 of 2001, dated 12-7-2001, under section 9(c), C.N.S.A., 1997. The F.I.R. Was registered at Police Station A.N.F. Lahore.
The appellant was awarded life imprisonment and fine of Rs,3,00,000 in default thereof to further undergo S.I. For two years.
2. According to P.W.5, a secret information was received by senior officers of A.N.F. That a person with the name of Agha Qais (appellant) was present at Barkat Market, Lahore with the narcotics; a raiding party was arranged under the supervision of one Riaz Somro, Assistant Director consisting of Qadeer Ahmad Baig Inspector/P.W.5 and many other officials of the A.N.F. At about 12-15 noon, the raiding party reached at car parking of Barkat Market, Garden Town and on pointation of the informer, the appellant was arrested who was holding two cartons in his custody which were taken into custody. Cardboard cartons were opened, from one carton 25 packets of Charas were recovered, whereas from the other carton 24 packets of Charas were recovered. Each packet weighted one kilogram. In total, 49 kilogram Charas was recovered from the possession of the appellant. From each packet, one gram Charas was separated for chemical analysis. Two separate sealed parcels of 25 and 24 grams which were sealed with the seal of A.N.T.F., were prepared by P.W.S. The remaining packets of Charas were put in the same cartons and they were further put in a plastic "Tora" which was made into sealed parcel and was sealed with the seal of A.N.T.F. The Charas P.1 and took into possession Articles P.2 to P4. Vide memo. Exh.P.C. The recovery memos. Were signed by Nouman Ghous and Imran Ranjha P.Ws. P.W.5 drafted the complaint Exh.P.A./1 and sent the same to the police station through Muhammad Yar Watto, Constable for registration of the case. Thereafter, he drew site plan without scale Exh.P.D. He recorded the statements of the P.Ws. At the spot and deposited the case property with Muharrer on his return to the police station. He also recorded the statements of the P.Ws. For sending the parcels to the Chemical Examiner and received positive report Exh.P.E. Therefrom. After completion of investigation, he submitted the challan to the Court.
3. The charge was framed against the appellant under section 9(c), C.N.S.A. On 8-11-2001, who pleaded not guilty and claimed trial. The prosecution in order to bring home the charge examined five prosecution witnesses. The learned S.P.P. Gave up Nauman Ghaus, A.S.-I.
4. The appellant also recorded his statement under section 342, Cr.P.C. As well as examined himself under section 340(2), Cr.P.C. On oath and also produced D.W.1 his wife and D.W.2, sister of his wife, in his defence evidence.
5. The main case of the prosecution was unraveled by P.W.5 as stated above, supported by other P.
Ws.
6. On the other hand, the defence version of the appellant is given in statement of the appellant recorded under section 342, Cr.P.C. While answering question No,2, he stated as under:- "The real fact of the matter is that on 12-7-2001, I along with my wife, my wife's sister and a small girl, came on a car at Barkat Market to purchase some cloths. When we just alighted from the car, in plain clothes some persons immediately came, they were armed with pistols and they encircled us. I was apprehended and my eyes were blind-folded. I thought that some dacoit had caught me.
They boarded me in a vehicle. I was taken to a Bungalow. They told me that I was selling Charas which was totally incorrect as they never sent a purchaser to me nor he purchased any Charas from me, nor any Charas was recovered from my possession. Along with me my wife, sister of my wife and small girls were also taken to the aforementioned bungalow. After about two hours they were allowed to go and were told that I would also be released by the evening. On the following day, I was taken to the Katchery and my physical remand was obtained. During my physical remand, I was never interrogated. My vehicle was also released. I have no previous criminal record.
No witness was also recorded from the locality, where I lived in regard to my selling narcotics etc. By the Investigating Officer."
' To question No,3, the appellant answered that he did not know anything about any recovery of Charas nor any Charas was recovered from him. Similarly, the appellant stated that no samples were made in his presence. He also stated that no Charas was produced in the Court nor was checked by his counsel. In reply to question as to why the case was made against him, the appellant answered that he had made certain reports against one Khalida and her husband Malangi who deals in narcotics business. The said lady in collusion with the A.N.F. Officials maneuvered the registered of case, recovery, etc. To take revenge from the appellant. The statement of the appellant was also recorded under section 340(2), Cr.P.C. There is some difference between appellant's statement under sections 340(2) and 342, Cr.P.C. He stated in his statement under section 342, Cr.P.C. That on 12-7-2001, he along with his wife and sister-in-law and a small girl went to Barket Market to purchase some cloths, however, in his statement under section 340(2),
7. The learned counsel for the appellant contended that contents of the F.I.R. Were not believable.
According to him, complainant Kabeer Baig acted in three capacities i.e. a complainant, witness and thereafter as Investigating Officer which is not approved in law; the version of recovery witness P.W.4 was not corroborated by any other witness though raiding party consisted of 17/18 persons; and recovered case property was not produced in the Court.
8. On the other hand, the learned counsel for A.N.F. Submitted that raid was conducted in pursuance of advance secret information; the P.Ws. Remained consistent on all material points; P.W.4 pointed out in the Court the recovered contraband, a large quantity of narcotics was recovered from the appellant which cannot be planted; no enmity could be proved between members of the raiding party and the appellant; there were contradictions between the defence witnesses and under section 9(c), C.N.S.A., life imprisonment is provided as minimum punishment.
9. We have considered the above arguments of the learned counsel. The record has also been perused with their assistance. The learned trial Court mainly based his judgment on testimony of P.W.4 and P.W.S. For example, in para.15, the learned trial Court held:--- "In order to prove this version the prosecution has relied upon the evidence of P.W.5 Qadeer Ahmad Baig Inspector and P.W.4 Imran Hussain Ranjha. Both these witnesses have proved the contents of F.I.R. Exh.P.A. In toto."
As pointed out above, P.W.J acted as complainant, witness and investigation officer. Under the law, complainant and accused are two opponent parties. In other words, they are tow contesting parites. Role of an Investigating Officer if of a natural authority whose object is to unearth the truth.
The Investigating Officer cannot be a part or a member of a party in a case which he is investigating. In this regard, guidance may be sought from Chapter 25 of Investigation from Police Rules, 1934. Rule 25.2(3) reads as under:--- " It is the duty of Investigating Officer to find out the truth of the matter under investigation. His objuect shal be to discover the actual facts of the case and to arrest the real offender or offenders.
He shall not commit himself prematurely to any view of the facts for or against any person."
The language of Rule 25.2 above noted clearly requires of an Investigating Officer not to commit himself prematurely to any view of the facts for or against any person. This cannot be expected from an Investigating Officer who himself is a party. As a matter of fact, concept of honest investigation is based on non-partisanship and neutrality: The reason and spirit of separating investigation wing from the operation wing of police also emanates from the same fact which reflects in Article 18 of the Police Order, 2002, therefore, we feel that element of honest, transparent and fair investigation lacks in the instant case. The same point has been discussed by the learned Sindh High Court reported in Nazir Ahmad v. The State PLD 2009 Kar.
191. The Honourable Supreme Court has analyzed the above point from another angle also.
According to the Honourable Supreme Court, Investigating Officer is an important witness for the defence also and in case he acts as a complainant and raiding officer, the defence is deprived of his very precious right at the same time and is forced not to depend upon the same. The Federal Shariat Court also observed that such an investigation is biased investigation. (Ashiq alias Kaloo v.
State 1989 PCr.LJ 601). In State v. Bashir and others 1998 SC 408, the Honourable Supreme Court observed that "as observed above, Investigating Officer is as important witness for the defence also and in case the head of the police party also becomes the Investigating Officer, he may not be able to discharge his duties as required of him under the Police Rules".
10. P.W.4 stated in his cross-examination that the cartons which. Were in the hands of the accused were available in the Court today packed in Tora of Charas. While arresting the appellant and recovering the Charas, no mention of Tora was made. The production of actual packets of Charas or Charas is also not mentioned by P.W.4. The testimony of P.W.5 is also silent on this. On the other hand, the appellant in his statement under section 342, Cr.P.C. Clearly stated while answering question No,3 as under:--- "I do not know anything about it. Neither any Charas was recovered from me nor any samples were made in my presence. The said alleged Charas was produced in this Court nor was checked by my counsel."
' The judgment of the learned trial Court is also silent on this point whether samples or Charas was produced in the Court or not. In para.12, the learned trial Court noted the stance of the appellant that no Charas was ever recovered from his possession. This fact creates doubts or serious lacuna in the prosecution case. A Division Bench of this Court held, "unless the recovered narcotics were produced in Court, 'it could not be found that accused was carrying them on his, person and were recovered from him". (Riasat Ali v. State 2004 PCr.LJ 361). Non-IE production of the case property in the Court is fatal to the prosecution case and destroys its very foundation. Likewise, it is very clear from the statement of appellant under section 342, Cr.P.C. That the report of the Chemical Examiner was never put to him. The basis of the whole prosecution is incriminating report of Chemical Examiner and by not putting the same to the appellant he was not afforded an opportunity to explain the said incriminating evidence.
11. The above two very serious flaws in the prosecution case have not been discussed by the learned trial Court at all. The learned trial Court focused its attention more on the defence case to arrive at the conclusion that there is a conflict between the stance of the appellant that he had gone with his family members to buy clothes for wedding of his daughter, whereas D.W.1 and D.W.2 did not mention that they had gone to Barkat Market for the purpose of shopping as the appellants' daughter was getting married. The learned trial Court forgot that basic responsibility lies on the prosecution to prove its case beyond any shadow of doubt in accordance with law.
12. For the above reasons and grounds, we allow this appeal and acquit the appellant of the charges. In our view the prosecution failed to prove its case against the appellant. The appellant/accused shall be released, if not required in any other case.