Attaullah Khan, J.--The appellant, Abdul Janan, has filed this criminal appeal calling in question the judgment dated 15/1/2009 passed by Additional Sessions Judge-III/Judge Special Court D.I.Khan, whereby he was convicted under Section 9(C) CNSA and sentenced to fourteen years R1 with fine of Rs,50,000/-, in default to undergo six months simple imprisonment, with benefit under Section 382-B Cr.P.C.
2. Briefly stated facts of the case are that on receipt of spy information about the smuggling of narcotics towards Punjab by a Smuggler, Bahawal Khan SHO of Police Station Cantt: had made a picket on Dera-Multan road in front of Baluch hotel when a bus coming towards Dera Baring No, 6088 was stopped and a person sitting therein in suspicious condition having a Shopper in his lap was deboarded therefrom, who disclosed his name as Abdul Janan son of Haji Mehsood Khan.
When checked, the Shopper contained charas wrapped in different plastic envelops weighing six kilograms, out of which ten grams were separated from each for chemical analysis while the remaining were scaled in Parcel No 2. The accused was thus booked for the offence vide F.I.R ibid.
3. After completion of investigation, challan was put against him in Court where formalities under Section 265-C Cr.P.C. were complied with. The accused was then formally charge sheeted to which he did not plead guilty and claimed trial.
4. In order to prove its case, the prosecution produced and examined eight witnesses and closed its evidence. Thereafter, statement of the accused was recorded under Section 342 Cr.P.C. but he professed innocence. However, neither he produced any defence evidence nor opted to examine himself on oath in terms of Section 340(2) Cr.P.C.
5. The learned trial Judge, on evaluating the materials brought on record found the accused guilty of the offence charged with and thus on conviction sentenced him as mentioned above. Hence this appeal.
6. Learned counsel for the convict/appellant contended that the alleged recovery of contraband charas from the possession of the appellant is concocted and the prosecution had badly failed to prove the same. He argued that despite the fact that the police had prior information about the alleged offence still no independent witness was associated with the recovery process. His submission was that PWs Muhammad Salim and Gul Sher were introduced by the prosecution subsequently to fill-up the lacuna, because their statements have not been recorded under Section 161 Cr.P.C. The last limb of his arguments was that the prosecution had miserably failed to prove the conscious and physical possession of the contraband charas by the appellant and, therefore, the case of the prosecution being full of doubts and material contradictions, the impugned judgment of conviction is liable to be set aside.
7. On the other hand, learned counsel for the State argued that the case of the prosecution was duly proved by cogent and convincing evidence. It was argued that the prosecution was not bound to produce and examine each and every witness; that the report of FSL is in positive, that the appellant has committed a heinous crime which is an offence against the whole Society, therefore, the appellant has rightly been convicted and sentenced who deserves no leniency.
8. We have carefully perused record of the case and considered the arguments of the learned counsel for the parties.
9. The first thing to be noted is that we requisitioned the parcel of recovered contraband charas which contains no seal. This fact is also admitted by PW.3. In cross-examination, this witness admitted it correct that no seal is available on Ex.PA. This Ex.PA is the same parcel which contained the alleged charas recovered from the possession of the accused. It means that it was in loose condition.
10.We have accepted the admission of the witness because he is Investigating Officer of the case.
11.As stated above, the non-fixing of any seal on the parcel makes the narcotics doubtful. Another astonishing factor of the case is that when the parcel was opened in this Court, it contained three stones which is very objectionable and adversely reflects over the highly poor investigation of the police department. So, in this way, the weight of the narcotics is also doubtful. Moreover, some pieces of charas were found which are totally different from the remaining lot which cannot be ascertained whether it were charas or "Khal". So the condition of parcel and its contents makes the case of the prosecution very doubtful.
12.The next question to be examined is that there is nothing on file to show that the narcotics were weighed through a scale. Five packets were found in the bag and the Investigating Officer presumed each packet of one kilogram and thus the narcotics were termed weighing five kilograms. This is again a defect which goes to the root of the case.
13.The next issue to be considered is that the Investigating Officer has admitted that he is not aware about the destination of the vehicle and also as to from where it was coming. The statements of driver and conductor were also not recorded and they were not associated with the investigation process. The Conductor or the Bus Driver were very important witnesses and they should have been cited and examined as PWs, because their depositions might have been helpful to the prosecution. This omission also creates doubt about the veracity of the prosecution version.
14.There is another material contradiction in the case. According to the cross-examination of PW.3, i,e, Investigating Officer, that no sooner the accused was deboarded from the Bus, it left while according to PW.5 who is also an important witness in this case, the bus remained on the spot for about one hour. This material contradiction again weakens the case of the prosecution. This witness, i,e, PW.5 has also admitted that he did not weighed the narcotics.
15.It is also not clear that the narcotics were recovered from the conscious possession of the accused, because the plastic bag was kept allegedly by him in his lap. The physical and conscious possession is not proved in the evidence of the prosecution.
16.'Another fact to be taken into consideration is that no ticket was recovered to show that the accused was traveling in the same bus. If we keep this non-recovery of ticket of the accused in juxta-position with the Answer No, 5, it would create doubt because the accused has altogether denied traveling in the bus. According to him, the police had already having a packet in their custody before his apprehension. This fact further doubts the alleged recovery of charas from the possession of the accused.
17.The recovery memo. is available on file which is witnessed by two witnesses. Though Section 103 Cr.P.C. is excluded through Section 25 CNSA, yet it is to be complied with when there is a prior information. According to the report, the Informer had informed the police about the smuggling of narcotics and on this information, the police had made nakabandi. In these circumstances, when prior information is available, then the association of public independent witnesses with the recovery is necessary. In this respect, we may refer to NLR 2002 Criminal 605, wherein it has been held:-- "The alleged recovery of opium weighing 142 grams is stated to have been made in presence of police witnesses and not in presence of independent witnesses, considering that recovery was made in view of prior information which conduct of the police have been repeatedly observed by the Superior Courts to be undesirable. Reference may be made to Mst. Fahmida Vs. The State (1997 SCM R 947)".
18.So, the non-association of public witnesses with the recovery inspite of prior information is fatal to the prosecution case.
19.It is further to be noted that the occurrence took place on 17/2/2007 while the sample of the contraband charas were sent for chemical analysis on 14/3/2007, i,e, with a delay of 27 days. This also goes against the case of the prosecution.
20.In short, no conscious possession of the accused is proved and no traveling ticket has been obtained from the accused .to show his presence in the bus because he has denied traveling in the said bus. The recovery memo. is defective as stated above by non-associating public witnesses inspite of prior information. The contraband charas was not weighed. The parcel was not scaled and when opened in the Court, it contained some pieces of stones which was in loose condition.
The FSL report also cannot be taken into consideration because the sample was sent with a sufficient delay with no plausible explanation. Therefore, the case is full of doubts and contradictions.
21.Resultantly, we hold that the prosecution had not been able to prove its case against the convict/appellant and the impugned judgment is thus the result of non-appraisal of material evidence brought on record.
22.We, therefore, accept this appeal, set aside the impugned conviction and sentence of the appellant and acquit him of the instant charge. He shall be set at liberty forthwith if no wanted in any other case.
23.Above are the seasons for our short order of even date.