Syed Iftikhar Hussain Shah, J.--Appellant Falak Sher 01) Falki has preferred this appeal against judgment dated 15.10.2012 passed by the learned Additional Sessions Judge, Mailsi in case FIR No,260 dated 5.6.2011 registered under Section 9-C of the Control of Narcotic Substances Act, 1997 at Police Station Mitru District Vehari whereby he was convicted and sentenced to undergo rigorous imprisonment for life and also to pay the fine of Rs, 100,000/- in case of default to further undergo simple imprisonment for six months. He was held entitled to the benefit of Section 382-B Cr.P.C.
2. Succinctly, the allegation against the appellant as mentioned in the complaint Ex.PA of Bashir Ahmad, SI/CIA (PW-4), is that he was in police custody in a case registered under Section 13 of the Arms Ordinance 1965 and made a disclosure that a huge quantity of chars was lying in his house.
He was taken to his house where his nephew Mushtaq Ahmad was putting the packets of chars in a bag, who after seeing the police party, managed his escape and 42-k.g and 500 grams chars was recovered. 10-grams of chars was separated as sample and after getting the report of Chemical Examiner, Multan, the appellant was challaned whereas his co-accused Mushtaq Ahmad is still absconder.
3. After the submission of challan, the appellant was charged under Section 9-C of the Control of Narcotic Substances Act, 1997 to which he pleaded not guilty and claimed trial. The prosecution, in order to substantiate the charge, examined as many as 6-witnesses.
4. Muhammad Iqbal 353/HC PW-1, the author of the FIR Ex.PA/1, was also handed over sealed parcels of the chars by the I.O. of this case. Javed Iqbal 764-C, who transmitted the parcel of sample to the office of Chemical Examiner, Multan appeared as PW-2. Khushi Muhammad, SI is an attesting witness of the recovery memo Ex.PB and Bashir Ahmad SI/complainant of the case and incharge of the raiding party appeared as PW-4. Ghazanfar Ali 60/C PW-5 was entrusted with the warrant of arrest against Gulzar Ali, co-accused. Ashiq Ali, SI the investigator appeared as PW-6.
5. After closing of the prosecution evidence the appellant was examined under Section 342 Cr.P.C.
The incriminating evidence produced by the prosecutions was put to him,. which he termed as incorrect, to question as to why this case was registered Sand why the PWs have deposed against them, he deposed as under: "Nothing was recovered from my possession. I was arrested in case FIR No, 258/2011 land was already in police custody. Police has planted this false case just to show police Karwai because I moved application against them at different forum of police High ups. Police has falsely implicated me in this case due to above mentioned grudge. PWs are subordinate of the I.O. They have deposed against me on the asking of I.O. I am innocent."
6. Learned trial Court, after hearing the learned counsel for the parties and going through the evidence on record, convicted the appellant and sentenced him supra.
7. Learned counsel for the appellant has contended that the appellant had not made any disclosure and he was in police custody and was falsely implicated in this case due to previous grudge. Further contended that admittedly, the chars in question was recovered from the possession of co-accused, who is still absconder, therefore, the conviction of the appellant is liable to be set aside. Furthermore, admittedly the chars in question was in packets and even the incharge of the raiding party Bashir Ahmad SI/PW-4 admitted in cross-examination that the recovered chars was in 38/39 packets but the sample of 10-grams was taken only from any packet not known to any one, therefore, the conviction of the appellant is liable to be set aside. Relies on cases titled 'Mst Askar Jan and others vs. Muhammad Daud and others (2010 SCMR 16Preview04 [Supreme Court of Pakistan])", "Fareed Ullah vs. The State (2013 SCMR 302 Supreme Court of Pakistan])" and "Ameer Zeb vs. The State (PLD 2012 Supreme Court 380)".
8. On the other hand, learned DPG has contended that the raid in question was conducted on the disclosure of the appellant and he pointed out the presence of chars in his house and the same was recovered as such, therefore, he has rightly been convicted.
9. We have heard the learned counsel for the appellant, learned DPG for the State and have also gone through the record.
10.It is an admitted fact that Falak Sher appellant was in police custody in a case registered under Section 13 of the Arms Ordinance 1965, who allegedly made a disclosure about the presence of chars in his house. He was accordingly taken to his house where his nephew Mushtaq was found placing the packets of chars in a bag, who managed his escape and the chars was taken into possession. Now the prosecution version is that the aforesaid chars was recovered on the pointation of the appellant, therefore, he has rightly been convicted.
11. Bashir Ahmad SI, Incharge of the raiding party/complainant has appeared as PW-4and admitted in his cross-examination that when entered in the house of recovery the chars P-1 was in possession of Mushtaq co-accused. Similarly a definite question was put to him as under.- Q. The Chars P-1 was not recovered from Falaksher accused?
Ans. It is correct that it was not recovered from Falaksher accused, Anyhow, same was recovered on his pointation."
Similarly, Khushi Muhammad Sl/PW-3, a member of the .raiding party and the witness of the recovery, appeared as PW-3 and was put the following question.
Q. Whether chars was in possession of Mushtaq accused?
Ans. At the time of raid, Mushtaq was putting the packets of Chars in a plastic bag and on catching sight of raiding party, he ran away. This chars was owned by Falaksher. accused".
From the above statement of PW-3 and PW-4, it is crystal clear that the chars in question was recovered from Mushtaq accused, who was allegedly putting the packets of chars in a hag at the time of alleged raid. The chars in question was neither in possession of the appellant nor it was recovery from him, therefore, the prosecution has miserably failed to establish the guilt of the appellant beyond any reasonable doubt.
12. Therefore, the appeal in hand is allowed and the appellant is hereby acquitted from the offence charged of. He is in custody, he shall be released forthwith, if not required in any other case.
Co-accused Mushtaq Ahmad, whose perpetual warrants of arrest have already been issued by the learned trial Court, shall face the trial when arrested.