JUDGMENT SAGHEER AHMAD QADRI, J.--Shabbir Sharif Kiani, convict-appellant was tried by the learned Additional Sessions Judge/Judge, Special Court, C. N.S.A., Attock in case F.I.R No.53 registered at Police Station and, District Attock on 29-4-2006 under section 9(c) of the Control of Narcotic Substances Act, 1997 on the report of Ghulam Mustafa, DSP, complainant (P.W.4).
2. The F.I.R (Exh.PA/1) was recorded on the basis of complaint (Exh.PA) lodged by P.W.4 Ghulam Mustafa, D.S.P./complainant whereby it was mentioned that on 29-4-2006 he along with other police officials was present at ACLC Khushhal Garh within the area of Police Station and when a Suzuki car bearing Registration No.4028-IDN reached from Kohat side which was intercepted and found it was being driven by the appellant Shabbir Sharif Kiani son of Muhammad Sharif while on front seat was present Abdul Razzaq son of Abdul Ghani resident of WAPDA Colony, G-7/4, Islamabad. On checking of the car concealed inside the cavities of the door present on the driver's side he recovered 4 packets Charas garda (P1/1-4) out of which 50 grams of Charas a small quantity from each packet was secured and sealed with the seals of M.A and secured vide memo Exh.PB attested by the witnesses Mehmood Khan, A.S.-I./ P.W.5 and Zahood Ahmed, Constable given up P.W. On the basis of above mentioned complaint (Exh.PA), the F.I.R. (Exh.PA/1) was recorded.
3. After completion of investigation challan was submitted in the court of learned Additional Sessions Judge, Attock who framed the charge on 6-10-2006 against the appellant and his co- accused Abdul Razzaq under section 9(c) of the Control of Narcotic Substances Act, 1997 to which they both pleaded not guilty and claimed trial.
4. From prosecution side Liaquat Hussain, FC-245 appeared as P.W.1 who stated that on 4-5-2006 he transmitted a sealed packet containing charas to the office of Chemical Examiner, Rawalpindi which was returned with objection and then on 9-5-2006 again he transmitted the said parcel to the office of Chemical Examiner. P.W.2 Muhammad Ashraf, A.S.-I. Received written complaint (Exh.PA) of Ghulam Mustafa, D.S.P./complainant through Amanat, Constable which he reduced into writing vide F.I.R (Exh.PA/1). P.W.3 Hasham Khan, Head Constable deposed that on 29-4-2006 while being posted as Moharrir, Iftikhar Ahmed, Inspector P.W.6. Handed over him two sealed parcels containing garda charas which he kept in Malkhana for safe custody. On 4-5-2006 he handed one sealed parcel containing charas to P.W.1 Liaquat Hussain, Constable-245 for onward transmission to the office of Chemical Examiner which he deposited the same in the office of Chemical Examiner, Rawalpindi. P.W.4 Ghulam Mustaja, D.S.P./complainant appeared and reiterated the stand mentioned in the F.I.R (Exh. PA/1). P.W.5 Mahmood Khan, A.S. -I. Is also the recovery witness who deposed in between the lines of the F.I.R. (Exh.PA/1) while supporting the stand of the complainant/P.W.4. He is also the recovery witness of charas Exh.PB. P.W.6 Iftikhar Ahmed, Inspector/S. H.O., Police Station and conducted the investigation of the case. He prepared the recovery memo of charas Exh.PB; site plan Exh.PF and also recorded the statements of the P.Ws under section 161, Cr.P.C. The learned counsel for the State given up P.W. Zahoor Ahmed, Constable being unnecessary and after tendering in evidence the report of Chemical Examiner (Exh.PG) closed the evidence on behalf of the prosecution.
5. After closure of the prosecution evidence the learned trial Court examined the appellant on 21-5- 2007 under section 342, Cr.P.C. Wherein he simply denied the allegations levelled against him. In answer to Question No.4 'Why this case is registered against you and why the P.Ws. Have deposed against you' he replied as under:-- I am innocent in this case. Actually on 29-4-2006 I was coming on a bus early in the morning. I was stepped down bus. Nothing was recovered from my possession. No P.W. Including D.S.P. And Mahmood Khan A.S.-I. Was present at that time. Only a constable who was not in uniform stepped me down from bus illegally detained me there as an altercation took place between me and him and on the arrival of D.S.P., he got involved me in this case falsely disclosing to the D.S.P. That some narcotic was recovered from me.
Actually at the time of arrest neither any D.S.P. Nor any police official was present there. Police deposed against me in order to save their skin and also to show their efficiency being police officials as they have to show number of cases. All the P. Ws. Are police officials and they in compliance of the order of D.S.P. Deposed against me."
6. The learned trial Court after conclusion of trial vide judgment dated 18-6-2007 convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to two years' R.I. With fine of Rs.20,000 and in default of payment of fine to undergo further simple imprisonment for two months. Benefit of section 382-B, Cr.P.C. Was, however, extended to the appellant.
7. Feeling aggrieved by that judgment the appellant has challenged his conviction and sentence through this criminal appeal.
8. Learned counsel for the appellants argued that the impugned judgment whereby the appellant was convicted is against law and facts of the case; that no independent witness is examined to prove the recovery of alleged narcotics against the appellant; that the statements of the complainant P.W.4 Ghulam Mustafa, D.S.P. And the sole recovery witness Mehmood Khan, A.S.-I.
P.W.5 are in contradiction with each other; that the Investigating Officer Iftikhar Ahmed.
Inspector/P.W.6 did not investigate the case in accordance with law and the investigation was just an eye-wash; that the prosecution story revolves around the fact that the appellant and his co- accused reached at the alleged place of interception in a car bearing Registration No.IDN-4025 but throughout the trial that car was never produced in the court -nor there is any evidence available on record if any such car was ever taken into possession; that allegedly 50 grams Charas was secured as sample and sent to the office of the Chemical Examiner but if the report of the Chemical Examiner (Exh.PG) is seen it shows that the quantity of 10 grams Charas was sent to the office of Chemical Examiner which fact itself contradicts and belies the statement of the complainant Ghulam Mustafa, D.S.P./P.W.4; that the statement of P. W.1 Liaquat Hussain 245-C if seen he stated that on 4-5-2006 he took the alleged parcel containing sample of charas to the office of Chemical Examiner which was returned with an objection and he deposited the same on 9-5-2006; that if the statement of P.W.3 Hashim Khan, Moharrir is seen he also stated so but if the statements of P.W.4 complainant Ghulam Mustafa, DSP and PW-6 Iftikhar Ahmed, Inspector/Investigating Officer are seen they did not utter a word in this respect, therefore, the custody of the property between 4-5-2006 and 9-5-2006 is not explained thus, it creates doubt about the genuineness of the sample parcel. Learned counsel further argued that according to the -statements of the witnesses initial sample parcel was prepared in respect of 50 grams charas but when it was sent to the office of Chemical Examiner it reveals -that it contained 10 grams Charas thus creates serious doubt about the genuineness of parcel as well as the substance sent to the office of Chemical Examiner. Learned counsel while relying on .The State v. Muhammad Aslam (1993 PCr.LJ 2287), Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another (PLD 2004 SC 219).
Muhammad Altaf v. The State (1996 PCr.LJ 440), Fida Hussain Ansari v. The State (1992 PCr.LJ 2002) and Mst. Jeelal and another v. The State (2005 M LD 1261) argued that first instance when the car in question was not produced in which allegedly the appellant and his co-accused were found present and secondly the discrepancy about the sample parcel as well as the contradictory statements of the P. Ws. In the light of defence version raised by the appellant wherein he alleged that he was arrested from some other place and falsely involved in this case, is a plausible version brought on record, therefore, prosecution was not able to prove the charge beyond and reasonable shadow of doubt. Prayed that while setting aside the impugned judgment the appeal in hand be accepted and the appellant be acquitted.
9. On the other hand, learned Deputy Prosecutor-General opposed this appeal on the grounds that the appellant along with his co-accused were apprehended while driving in the car and from their possession 2 K.G. Charas was recovered out of which 50 grams charas was sent to the office of Chemical Examiner for chemical analysis which subsequently was found in positive; that all the witnesses including the complainant P.W.4 Ghulam Mustafa, D.S.P., Mehmood Khan, A.S.-I./P.W.5 and P.W.6 Iftikhar Ahmed, Inspector/ Investigating Officer corroborated to each other and proved the case against the appellant without any reasonable shadow of doubt. As far as the non production of the car is concerned learned Deputy Prosecutor-General argued that it does not create any dent in the prosecution version to dis believe the same when huge quantity of charas was recovered from the appellant; that no defence was led by the appellant, therefore, prayed that this appeal be dismissed.
10. We have heard the learned counsel for the parties and perused the record.
11. If the prosecution version is seen right from the beginning as reflected from complaint Exh.PA on the basis of which F.I.R. (Exh.PA/1) was recorded, P.W.4 Ghulam Mustafa, D. S. P. /complainant alleged that the appellant and his co-accused Abdul Razzaq reached at the spot where allegedly they were intercepted while present in a car bearing Registration No.IDN-4028. It is specifically alleged that the car was being driven by the appellant. The said car throughout the trial was never produced in court although according to the seizure memo Exh.PC it was secured in possession.
The main important link on the basis of which prosecution developed its version, the reaching of the appellant along with the co-accused in vehicle out of which concealed in a door of the car the alleged recovered substance four packets of Charas garda weighing 2 K.G. Was recovered, is missing right from the beginning.
12. The second aspect of the prosecution version through which the prosecution has built up its case is the recovery of narcotics in the shape of four packets charas garda which allegedly were secured vide memo Exh.PB and are shown Exh.P1/1-4. According to the complainant P.W.4 Ghulam Mustafa, D.S.P. Out of four packets 50 grams charas was secured as sample for onward transmission to the office of Chemical Examiner and it was secured through memo Exh.PB. It is worth-mentioning that in complaint Exh.PA and seizure memo Exh.PB the sample parcel is shown weighed as 50 grams. According to the statement of P.W.4 Ghulam Mustafa, D.S.P. Complainant he secured the parcel sample as mentioned above while P.W.6 Iftikhar Ahmed, Inspector/Investigating Officer handed over the main bulk as well as parcel to the Moharrir Mal Khana, Hasham Khan P.W.3 after returning his to the police station on 29-4-2006. P.W.3 Moharrir Hasham Khan in his statement deposed that on 29-4-2006 he received two sealed parcels allegedly said to contain charas garda handed over by P.W.6 Iftikhar Ahmed, Inspector/Investigating Officer which he kept in Mal Khana intact. He further stated that on 4-5-2006 he handed over said parcel to P.W.1 Liaquat Hussain, Constable-245 for onward transmission to the office of Chemical Examiner who returned the same with some objections and again on 9-5-2006 after removal of the objection sample parcel was handed over to the same constable who deposited the same in the office of Chemical Examiner intact. This intervening period from 4-5-2006 to 9-5-2006 is not explained as how and in whose custody that parcel remained and which type of objection was removed by any of the officials. If the statement of P.W.6 Iftikhar Ahmed, Inspector/ Investigating Officer is seen he throughout his statement did not mention that after 29-4-2006 when he handed over the sealed parcel to P.W.3 Moharrir Hashim Khan when again the same came to his possession or if he ever removed any objection in this respect. As it is already mentioned if the report (Exh. PG) of the Chemical Examiner is seen it clearly reads "One. Sealed packet said to contain Charas W-10 grams." Had the sample was secured as stated by the prosecution specially the complainant P.W.4 Ghulam Mustafa, D.S.P.
And the sole recovery witness Mehmood Khan, A.S.-I./P.W.5 wherein they specifically mentioned that the sample parcel contained 50 grams charas then how it converted into 10 grams charas.
Even otherwise as already observed above that as the parcel was returned under objection from the office of Chemical Examiner, 4/5-days intervening period it remained in whose custody and what type of objection was removed when it again was deposited in the office of Chemical Examiner. The procedure for proper custody of the articles is given in Rule 11 Volume-III, Chapter 18- B of the Rules and Orders of the Lahore High Court which reads as under:-- "11. Proper custody of articles to be proved---In all cases in which articles are brought up in evidence the custody of such articles, throughout the various stages of the inquiry must be clearly traced and established. Evidence must be recorded on this point, and the evidence should never leave it doubtful as to what person or persons have had charge of the articles at any stage . Of the proceedings. All such articles must be distinctively marked, and any reference to them in the record must be so clear as to leave no room for doubt as to the special articles referred to."
12. Even otherwise it has consistently been held by the superior courts of the country that parcels contained the substance which are to be sent to obtain the opinion of the office of Chemical Examiner about its contents must be proved with certainty how and in which circumstances it remained in possession of any of the officials and each and every stage is to be explained with certainty so that doubt may not arise in this respect.
19. Learned counsel for the appellant during arguments has pointed out that the three main witnesses i.e. P.W.4 Ghulam Mustafa, D.S.P. Complainant, P.W.5 Mehmood Khan, A.S.-I. The sole recovery witness and P.W.5 Iftikhar Ahmed, Inspector/Investigating Officer have contradicted each other in respect of the description of the recovered substance i.e. Charas garda. If the defence version as taken by the appellant in his statement under section 342, Cr.P.C. Is seen he in reply to question No.4 specifically agitated that he was actually arrested by the complainant Ghulam Mustafa, D.S.P. While he stepped down from the bus and falsely involved in this case. The non-production of the car as mentioned above the defence version put forward by the appellant seems plausible. It is now settled law that accused is only to create a dent in the prosecution version as burden to prove the charge against an accused always lies on the prosecution.
15. In the light of above discussion when the material facts that is the manner in which the appellant was apprehended and the main link i.e. The car which was not produced in court, contradicting statements of the witnesses in respect of details of the recovered substance, the missing link between the statements of P.W.6 Iftikhar Ahmed, Inspector/Investigating Officer and P.W.3 Hashim Khan, Moharrir who allegedly transmitted the sample parcel to the office of Chemical Examiner and basing on the report of Chemical Examiner which itself negates the version of the prosecution whereby the complainant and the recovery witness deposed that 50 grams charas was secured as sample while the sample parcel provided to the office of Chemical Examiner contained only 10 grams Charas creates serious dout about the veracity of the prosecution story benefit of which must go to the accused.
16. Resultantly, this criminal appeal is accepted and the appellant is acquitted of the charge while setting aside the impugned judgment of the learned trial Court. The appellant was granted bail by this Court while suspending his sentence vide order dated 9-10-2010 passed in Criminal Miscellaneous No.373-M of 2007. His bail bonds are discharged.