' SYED MUHAMMAD FAROOQ SHAH, J.---Appellant Baqi Jan son of Fakir Muhammad Achakzai and.
Abdul Rasheed son of Bashir Ahmed Jamali were tried by Judge Special Court, Control of Narcotic Substances Act, Jacobabad, on the charge of having been found in possession of 'charas' weighing 100 kgs. At the conclusion of the trial vide judgment dated 20-3-2012, the accused Abdul Rasheed was acquitted from the charge of the case Crime No.58 of 2011, registered at Police Station. Sadar Jacobabad, however, the appellant found guilty was convicted under section 9(c)
CNS Act, 1997 and sentenced to suffer R.I of 14 years and to pay fine of Rs.200,000, or in default thereof to undergo additional imprisonment for six months. Benefit of section 382(b), Cr.P.C. Was however extended to him. Being aggrieved and dis-satisfied by the impugned judgment, the appellant Baqi Jan has filed the captioned Criminal Appeal for his acquittal on the grounds as set forth in the memo of appeal.
2. Succinctly narrated the facts are that on 18-5-2011 complainant SIP Saeed Ahmed Jumani was on patrolling in police mobile under station diary entry No.14 along with his subordinate staff, received spy information that two persons carrying 'charas' through Jeep BC 0904, leading towards Jacobabad. After receipt of such information the complainant party held nakabandi at Noun Wah, where at 1630 hours they saw the pointed jeep of white colour coming from Jhatpat (Balochistan) side. It is further alleged that at a distance of 50 paces the jeep stopped, one person identified to be Abdul Rasheed alighted and escaped away, while the complainant party apprehended the driver with the jeep Baqi Jan (appellant) and on search of the jeep the complainant secured three bags/bachkas containing 40 kgs of 'charas' each, while the third bag/bachka was containing 20.Kgs of 'charas'. He had taken two slabs from each bag/bachka containing 40 kgs of `charas' while one slab from the bag/ bachka containing 20 kgs total 5 kgs of 'charas' as sample.
Thereafter, the accused, case property and jeep were taken into police custody and then the complainant prepared such mashirnama of arrest, recovery on the spot in presence of mashirs namely HC Sabir Hussain and HC Babal. Complainant party then brought apprehended accused and property at the police station where the complainant lodged F.I.R. Against the above named accused under section 9(c) of CNS Act and handed over the accused along with secured narcotics, mashirnama and F.I.R. To Incharge Police Station Sadar, Jacobabad, namely SIP Ali Murad Brohi for further investigation. SIP Ali Murad recorded the statement of witnesses under section 161, Cr.P.C, dispatched the sample to Chemical Laboratory Sukkur at Rohri for, report and on completion of usual investigation submitted the challan against above named accused while showing co-accused Abdul Rasheed to be absconder in challan sheet.
3. During trial, the accused Abdul Rasheed was declared as proclaimed offender and proceedings under sections 87/88, Cr.P.C. Were initiated against him. From perusal of the record it appears that subsequently accused Abdul Rasheed was also arrested and case was proceeded against both accused.
4. Prosecution, in order to prove its case examined complainant/SIP S.H.O. Saeed Ahmed Jumani (Exh.10), he produced attested copies of roznamcha entry, mashirnama of arrest, recovery and F.I.R.
(Exh.10-A to Exh.10-C) respectively, P.W SIO Ali Murad Borhi (Exh.11) produced the letter addressed to Chemical Laboratory and Chemical Examiner (Exh.11-A and Exh.11-B), P.W/mashir HC Sabir Ali (Exh.12), produced mashirnama of arrest of accused Abdul Rasheed (Exh.12-A), mashir PC Imdad Ali (Exh.13) is mashir of arrest of accused Abdul Rasheed. Thereafter, I/C DPP/SPP appearing on behalf of the State closed the prosecution side.
5. On conclusion of prosecution evidence, the statement of both accused were recorded under section 342, Cr.P.C. (Exh.15 and Ex.16), wherein they denied the prosecution allegations and claimed their innocence and appellant Baqi Jan pleaded his false implication in the case due to non- payment of 'bhatta' to the complainant. Appellant Baal Jan examined himself on oath under section 340(2), Cr . P.0 . (Exh. 16), also-examined witnesses in his defence, namely D.W Habibullah, Abdul Malik, Abdul Rasheed and Abdul Khaliq (Exh.17 to Exh.21) respectively, while accused Abdul Rasheed did not examine himself on oath nor led any defence evidence.
6. Following point for determination was framed by the learned trial Court:- "As to whether on 28-6-2012 at 1630 hours at bypass road at Taluka Jacobabad the appellant was found in possession/ transporting 100 kgs of 'charas' in Potohar Jeep in contravention of provisions of section 6 of Control of Narcotic Substances Act, 1997, recovered by the police party headed by S.H.O. Saeed Ahmed Jumani as alleged by the prosecution?"
7. The above point was answered in affirmative. Appellant Baqi Jan was convicted under section 9(c) of C.N.S. Act while accused Abdul Rasheed was acquitted of the charge. In support of his worthy contentions, learned Advocate for the appellant inter alia contended that the impugned judgment in order of conviction is manifestly against the law, facts and material available on the record of the case, erroneous, illegal and not sustainable under the law. Learned counsel at the very outset submitted that as per Rule 4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001, the samples were not dispatched for analysis under cover of a test memorandum specified in Form No.1, within 72 hours of the seizer and there are plethora of judgments; vitiates such recovery where considerable delay in sending the sample parcel to the Chemical Analyzer had not been explained by the prosecution in evidence and in such circumstances, the accused were acquitted on benefit of doubt, learned counsel placed his reliance on the cases of Jameel Shah v. The State (1997 SCM R 1494) and Amjad Ali v. The State (2012 SCM R 577) wherein the honourable Supreme Court set aside the conviction and sentence awarded to accused by the Courts below and acquitted the accused from the charge where official witnesses have given not at all the date as to when samples were sent for chemical examination and that which official had taken samples to the laboratory.
8. Learned counsel contended that facts of the case are identical to the case law cited by him as in the instant case there is nothing on record that when samples were sent for examination and which official had taken samples to the laboratory and this fact has been admitted in his cross- examination by the officer who made the recovery. Learned counsel next contended that there is delay of nine (9) days in sending the samples of narcotics to Chemical Examiner for analysis without any explanation therefore, in light of the ruling in the case of Muhammad Aslant v. The State (2011 SCM R 820) wherein the honourable Supreme Court has held that, "delay of more than 7 days in sending the samples of narcotics to Chemical Examiner for analysis was not explained by the prosecution. Accused was acquitted on benefit of doubt in such circumstances". Learned counsel urged that prosecution is duty bound to produce all evidence available in the case and withholding evidence would raise presumption against the truthfulness of the prosecution. On the point of delay in sending the contraband to Forensic Science Laboratory, reliance has also been placed on the Division Bench ruling, in the case of Shakeel v. The State (2005 YLR 2448) and Mst.
Sultan Zari v. The State (1986 PCr.LJ 1723).
9. Learned counsel further emphasized that even otherwise for the sake of arguments, the appellant is first time offender and in such cases the superior courts reduced sentences in absence of previous record of conviction of the accused, who was found a first time offender and not a habitual criminal. The Hon' able Supreme Court of Pakistan in the case of Abdul Rehman v.
The State reported in 2011 SCM R 965 reduced the sentence and conviction awarded to the appellant from 14 years imprisonment to five years with benefit of section 382(b), Cr.P.C. And in the case of Khawar and another v. The State (2003 PCr.LJ 811), wherein a Division Bench of this High Court has held that recovery of 6 kgs of `charas' from possession of accused having been fully established, the trial Court had rightly convicted the accused, however sentence of imprisonment, R.I 14 years awarded to the accused by the trial Court is being too severe and same was reduced to 8 years' R.I.
10. On the other hand, learned State Counsel could not controvert the factual as well as legal aspect of the case and was found unable to distinguish the citations relied upon by the learned counsel for the appellant.
11. As alleged by the prosecution, 100 kgs of 'charas' was recovered out of which 5 kgs of 'charas' was sent to Chemical Analyser, rest 95 kgs was sealed separately but during their depositions the P.Ws did not make identification of remaining sealed case property therefore, it could not be confirmed that property produced was the same one which is alleged to have been recovered from the possession of the appellant. Article 22 of Qanun-e-Shahadat provides that facts answering to explanation for making identification of anything or person whose identity is relevant so far as they are answering for the purpose. Non-production of whole property certainly creates doubt about the recovery of secured substance, particularly, there is nothing on the record to show as to whom the vehicle/ jeep belonged. In this respect the Investigating Officer did not try to find out the real owner of the jeep, neither any registration book of the jeep has been produced in evidence nor any effort is appearing on record to have been made by Investigating Officer to find out the name of the owner from Excise and Taxation Department with reference to ownership of the jeep. Learned counsel has rightly contended that even if prosecution is able to prove the case of the applicant that would be only to the extent of 5 kgs and not 100 kgs and reveals that recovery of 5 kgs has not been proved by the prosecution, the remaining case property out of 5 kgs after its evaluation and assessm ent was returned to the concerned, which has not been produced in evidence.
12. Admittedly, the contraband narcotics allegedly recovered from the possession of the appellant has been sent to the laboratory (F.S.L) after prolonged delay without any obvious reason on the part of prosecution and such delay remained without any plausible explanation. Memo of recovery and arrest reveals that appellant was driving the vehicle and nothing was recovered from his personal search, astonishingly co accused made his escape good on feet and he was not chased by the police party, though he was previously known to them. Prosecution did not adduce any evidence to prove that the appellant had any knowledge of the contraband `charas' lying in the vehicle. It is an admitted position that prosecution did not collect any evidence to show that as to who had kept such huge quantity of charas in the jeep, therefore, in the absence of conscious possession over contraband of the appellant cannot be the basis of conviction.
13. The law by now is well-settled that the defence evidence has to be put in juxtaposition with the prosecution evidence and if the same inspires confidence, benefit has to be given to the accused who is always considered innocent till prove guilty. The learned trial Court in the impugned judgment has brushed aside the defence evidence and such approach of the learned trial Court, in our view, is not only erroneous but is not warranted by law. The view taken by the learned trial Court in rejecting the defence evidence cannot be sustained on mere assumption that the statements of defence witnesses are contradictory to each other and are in juxtaposition. Perusal of defence evidence reveals that DW Abdul Malik, a gang man in Pakistan Railway deposed that police party was demanding Bhatta of Rs.10,000 from the driver accused Baqi Jan and stated in cross that he voluntarily appeared before the Court to record his statement. DW Abdul Rasheed has also supported the words of accused and stated that police party took away driver Baqi Jan in their police mobile from truck 'Adda' of Abdul Khaiiq. DW Abdul Khaliq was not cross-examined by the prosecution who deposed on oath as under:-- "On 18-5-2011 I was available at my truck Adda, some drivers were also sitting on cots at our Transport company (truck Adda) Jacobabad, while taking tea, in the meantime, police party of Police Station Saddar Jacobabad came on their police mobile there and taking away driver Abdul Baal from my Truck Adda/transport company. I see the same driver by name Abdul Baqi present before the Court is same and he was taken away by the police when I was sitting along with other drivers at my transport company. Driver Abdul Baqi used lo come at my Adda to load the goods on his ten wheelers truck".
14. It need not to emphasize that it is primary duty of the prosecution to prove the case against the accused beyond the shadow of reasonable doubt and its Burden cannot be shifted as contained in section 29 of C.N.S. Act, 1997. Moreso, it appears that prosecution did not adduce evidence with regard to the circumstances as where the bulk charas and samples were kept after recovery of the same from the appellant, though according to prosecution story, on the very day of alleged recovery samples were prepared and the same were sent to the office of Chemical Examiner after inordinate delay of nine days and no evidence had been produced to show as to why this delay had occurred and whether samples were kept safe custody. No plausible explanation was made available by the prosecution with regard to the aforesaid infirmity, as withholding evidence by the prosecution with regard to the aforesaid infirmity would certainly raise presumption against truthfulness of the prosecution case. Perusal of the record shows that defence plea taken by the appellant, stated on oath and evidence of defense witnesses has neither been discussed nor considered by the trial Court. The citations relied upon by the learned counsel for the appellant are squarely applicable in the circumstances of the present case.
15. In view of the foregoing, we reached at the conclusion that the prosecution has miserably failed to bring home the guilt against the appellant beyond the shadow of reasonable doubt.
Accordingly, the impugned judgment whereby the appellant was convicted is not sustainable in law, hereby set aside. Captioned appeal is allowed, resultantly appellant is acquitted from the charge of this case, the concerned Superintendent Jail is directed to release him forthwith, if not required in any other case.