' SHAHID BILAL HASSAN, J.--Abdul Wahab son of Allah Jewaya Caste Moda, resident of Mouza Kulab, Tehsil Ahmedpur East, District Bahawalpur was tried by the learned Addl. Sessions Judge, Ahmedpur East, in case F.I.R. No.452/2008 under section 9(c) of The Control of Narcotic Substances Act, 1997 at Police Station Saddar Ahmedpur East, District . Bahawalpur. The learned Additional Sessions Judge vide his judgment dated 19-9-2011 convicted the appellant under section 9(c) of C.N.S.A., 1997 and sentenced him to life imprisonment. The appellant was also liable to pay fine of Rs.2,00,000 in default thereof he would further undergo six months' S.I.
2. The appellant being, aggrieved has challenged the impugned judgment dated 19-9-2011 through this Criminal Appeal.
3. The prosecution story as narrated in the Crime Report Exh.P.C., was got lodged by Ibrar Hussain Gujjar, Inspector/ (P.W.9) on 30-10-2008 at about 7-00 p.m., through an application Exh. P.C., maintaining therein that on the day of occurrence he along with Niaz Ali, S.-I., Irshad Ahmad, A.S.-I., Muhammad Asghar, 1455-C, Zahoor Ahmad 366-C Ghulam Shabbir Ahmad 1515-C, Nasrullah 1135- C, Ilahi Bakhsh 202-C, Muhammad Siddique 1021-C and Riaz Ahmad 87-C, were present at "Ahmed Petroleum" on official Vehicle No.1429/BRL driven by Mehboob in connection with mobile duty and scrutiny of crime, that tipper conveyed information that certain persons namely Muhammad Akram son of Muhammad Sadiq, Riaz Ahmad son of Ilahi Bakhsh, Nasir son of Ilahi Bakhsh and Abdul Wahab son of Allah Jewaya dealing in narcotics since long, were present at the moment in Truck No.C-2844/Peshawar at Mouza Kundi Parhar near Canal Sultan Wah and were unloading narcotics from the said truck and if raid is conducted immediately, huge quantity of narcotics could be recovered, as such complainant reached at the spot immediately on the said spy information. They had just reached near the truck, the said persons along with four unknown persons, having seen the police party, ran away leaving the sac (Bori) along with truck. They were chased but succeeded in taking to their heals taking the benefit of standing crops. The sac lying near the truck was checked, from where 40-packets of Charas were recovered and 26-packets were also recovered from the secret cavities of the truck. On weighing - the Charas was found as 80-kilogram. Ten grams of Charas was separated from each of the recovered packets for chemical examination. Samples and remaining Charas were made into sealed parcels and seal of "N.A" was impressed thereupon. One seal of "N.A" upon each of the samples and four seals upon bulk were impressed before witnesses Irshad Ahmad, A.S.-I. And Muhammad Asghar 1455-HC.
Parcels and truck were secured through memo. All the accused persons committed offence under section 9(c) of the Control of Narcotic Substances Act, 1997 by keeping Charas in their possession for personal consumption and sale, as such complaint was sent to police station for registration of F.I.R. Through Zahoor Ahmed 366-C-II. Number of F.I.R. Be intimated. Niaz Ali, S.I. Was deputed to investigate the matter.
4. Initially the challan was submitted showing all the four accused as Proclaimed Offenders With red ink. The present appellant Abdul Wahab was arrested later on and supplementary challan was submitted against him. The appellant appeared before the learned trial Court, formal charge against him was framed on 12-10-2009 to which he pleaded not guilty and claimed trial; hence, the complainant's evidence was summoned. The prosecution in order to prove his case produced as many as nine witnesses. P.W.1, (Zahoor Ahmad, 456-C) was. Entrusted 66-sealed parcels by Niaz Ali on 30-10-2008, which he handed over to Muhammad Bilal, 1739-C for onward transmission to the office of Chemical Examiner. P.W.2, (Muhammad Bilal, 1739-C) deposited 66-parcels in the office of Chemical Examiner on 5-11-2008. P.W.3, (Abbas Ali, A.S.-I.) was entrusted with the investigation on 18-11-2008; he obtained warrants for the arrest of accused and also got issued proclamations against them and submitted challan under section 512 of Cr.P.C., against Muhammad Akram, Riaz, Nasir and Abdul Wahab (the present appellant). P.W.4 and P.W.5, (Irshad Ahmad, A.S.-I. And Asghar Ali, 1455-C) were witnesses of recovery of narcotics, Exh.P.A. P.W.6 (Niaz Ali, S.-I.) was the I.O., of this case, he reached the place of occurrence along with the S.H.O. And other police officials receiving the spy information about the occurrence; he was handed over the narcotics and truck; he recorded the statement of witnesses under section 161 of the Cr.P.C.; inspected the spot; prepared site plan, Exh.P.B; conducted raids for the arrest of the accused persons and he was transferred on 11-11-2008. P.W.7 (Riaz Hussain, S.-I.) received the complaint brought by. Zahoor Ahmad, 36-/C-II having been sent by Ibrar Hussain Inspector/ S.H.O. And chalked out formal F.I.R. P. W.8 (Muhammad Siddique, Inspector) took up the investigation of the case on 23-4-2009; he arrested the appellant Abdul Wahab and sent him to judicial lock-up. P.W.9 (Ibrar Hussain Gujjar, Inspector) was present at Ahmed Petroleum along with other police officials on 30-10-2008; he received spy information and reached the place of occurrence; he secured 80-KG of Charas and truck left by the accused persons while running and the scene prepared memo Exh.PA and sent complaint Exh.P.C., to police station for registration of formal F.I.R. And deputed Niaz Ahmad S.I. For investigation.
5. Prosecution tendered in evidence report of Chemical Examiner as Exh.P.D and closed evidence.
Statement of Arif Mehmood 970-HC was recorded as C.W.1. After recording the prosecution evidence, statement of appellant was recorded under section 342, Cr.P.C. In reply to the question "why this case against them and why the P.Ws. Deposed against him?" accused appellant Abdul Wahab replied that I am innocent, nothing was recovered from my possession. A quarrel took place between me and the Ibrar Hussain Gujjar, Inspector/complainant prior to the occurrence due to which I was falsely involved in this case. Moreover, police officials implicated me also to show efficiency to their superiors/high ups. Neither I was present at the spot nor I ran away from the scene. All the P.Ws. Deposed against me on the asking of the LO/complainant because they were subordinate to him. Accused appellant (Abdul Wahab) did not opt to appear as a witness in his own .Defence under section 340(2) of Cr.P.C., nor produced any evidence in defence.
6. After hearing learned "counsel for the parties and perusing the record, the learned trial Court announced the final judgment and awarded life imprisonment to the appellant vide, judgment dated 19-9-2011.
7. Learned counsel for the appellant argued that no relevant, admissible, legal and independent evidence was produced by the prosecution to prove the charge against the appellant, it was the requirement of law that unimpeachable evidence must be brought to prove the case punishable with death or life sentence otherwise the benefit of doubt must be extended to the accused; that no recovery was made from the possession of the appellant/accused; that as of alleged articles was lying neat the truck and no accused was-present at the time of alleged recovery; that P.W.4, states that he cannot explain from whose possession the narcotics was recovered; that P.W. 5 also states that 66-parcels of Charas were recovered from whose possession; that P.W.9, did not mention the quantity of recovered substance from the physical possession of the accused; that no mention of name of the appellant in the recovery memo; that there is contradiction in the statements of witnesses regarding the time for leaving the police station; that the time of arrival of the witnesses at the spot as well as the meeting of Mukhbar were different; that, no independent witness was produced from the public at large as there were many persons present at the spot; that there is contradiction in the statements of all the witnesses with respect to direction of escape of accused as well as number of accused; that the prosecution did- not lead any evidence as to how they came to identify the appellant and what was their source of identification; that the appellant was unknown to the witnesses prior to the occurrence; that the witnesses admitted that Mukhbar was not, present at the spot, so in his absence who identified the accused is a mystery; that at the time of arrival at the spot there was total darkness however no source of light has been mentioned; that no documentary evidence is available linking the Truck to the appellant; that there is contradiction in the statements of witnesses with respect 'to number of truck, one witness (P.W.4) mentioned- the number of Truck as C-4146 but the other witness (P.W.5) mentioned the number of Truck as C-2844; that there is also a contradiction in the statements of witnesses regaiding the weighed of case property by different persons; that the prosecution case is fatally flawed as no case property exhibited in the Court. Similarly the same was never put to the accused while he was examined under section 342 of the Cr.P.C.; that the report of Chemical Examiner is invalid and unacceptable as the number of seals as mentioned in complaint Exh.PC and F.I.R. Exh.PC/1 and recovery memo Exh.PA = is four whereas the Chemical Examiner report mentioned the number of seal as one; that as per Chemical Examiner Report, the samples were forwarded by ETO whereas the prosecution stated that the same were taken from -the police station; that, admittedly there is clear difference in handwriting of both the documents complaint Exh.PC and recovery memo Exh.PA and that the judgment of the learned trial Court may very 'kindly be set aside, conviction and sentence awarded to the appellant may very kindly be declared as illegal and the appellant may kindly be acquitted from the charge. Reliance has been placed upon "Hassan Raza alias Taidi v. The State" (2006' YLR 2668),"Dr. EMMANUEL ONUWABUCHI KEKE v. THE STATE and others" (2006 YLR 1834), "MUHAMMAD 4BBAS v. THE STATE" (2006 YLR 2378), "UMER REHMAN v. THE STATE" (PLD 2009 Karachi 284), "JOSEPH SUNDAY v. THE STATE" (2010 YLR 1335), "FAZAL and 2 others v. THE STATE" (2010 PCr.LJ 360), "MEHARBAN and 2 others v. THE STATE" (2011 PCr.LJ 8), "GHULAM HUSSAIN and 9 others v.
THE STATE" (2011 PCr.LJ 72), and "BAKHTI JAN v. THE STATE" (2011 YLR 134).
8. On the other hand learned Deputy Prosecutor-General has opposed the submissions made by< learned counsel for the appellant that 66 packets of Charm were exhibited by the evidence of Arshad Ahmed, A.S.-I. (P.W.4) and Asghar Ali, H.C. Through recovery memo Exh.PA; that the case property (narcotics) was produced in the Court; that there is a suggestion to the recovery P.Ws.
That the narcotics packets are not available in the Court and-the accused is not prejudiced; that the accused were identified by the spy informer to the complainant/I.O.(P.W.9); .That Niaz Ali, S.I.
And other police officials are informed by. P.W.9 who were together at the time of raid; that the informer was remained present during the whole proceedings of raid when the accused has been identified by the spy informer, so there is no need of the identification test; that the identification parade was necessary where the name, parentage of accused is not known; that 66-packets of Charas were recovered through recovery memo .Exh.PA and duly proved by the recovery witnesses; that the samples of parcels 66 in number have been received by Chemical Examiner through Muhammad 13ilal (P.W.2), the narcotics in these samples is Charas as shown in 'the Chemical Examiner Report Exh.PD.; that delay in sending samples is not fatal to the prosecution because Rules 4 & 5 are directory and not mandatory in nature; that procedural defects/irregularities in transportation or possession of narcotics should be. Overlooked in large interest of country and that there are minor contradictions which are not fatal for the prosecution and elaboration given in the impugned judgment on pages 12 to 18 of the judgment for minor contradictions of the P. Ws. Reliance has been made upon "TARIQ MEHMOOD v. STATE through Deputy Attorney-General" (PLD 2009 SC 39), "NASRULLAH v. THE STATE" (2011 PCr.LJ 277), and "MUSHTAQ v. THE STATE" (2002 PCr.LJ 1312).
9. We have heard the learned counsel for the parties and gone through the record.
10. The precise allegation against the appellant and the other accused named in this case is to the effect that on 30-10-2008 the appellant along with other co-accused were unloading Charas from, a truck and on seeing the police party, all the accused including the appellant managed to escape from the clutches of the police, who recovered 80-kilograms of Charas from the place of occurrence and as such all the accused in the case have committed an offence under section 9-C of the Control of Narcotic Substances Act, 1997. In order to prove the said allegation the prosecution produced nine witnesses. Zahoor Ahmad, HC appeared as (P.W.1) before the learned trial Court, he is a witness only to the extent of receiving 66-parcels sealed and handing over them to the concerned official for onward transmission to the office of Chemical Examiner. One Muhammad Bilal1739-C, appeared as P.W.2, who is only made a statement to the effect that he received parcels from P.W.1 and forwarding to the office of Chemical Examiner on the same day i.e. On 5-11-2008; Abbas Ali, S.I. Appeared as P.W.3, who has stated that he was entrusted with the investigation of the case and at the relevant time the accused of the case were yet to be arrested and therefore, he processed their warrants and prepared the challan under section 512 of the Cr.P.C. And was transferred thereafter. Irshad Ahmad, A.S.-I. Appeared as P.W.4. He is interesting witness for the reason that he is an eyewitness along with P.W.5 as well. He has stated that he saw four accused unloading the sac from the truck; Interestingly he has also stated that there were only four accused person. At the place of occurrence. This statement negates the stance of the prosecution when it is stated that there were four named and four un-named accused. P.W.4, has further stated that he does not know the four named accused personally. He for the first time saw them at the place of occurrence, who ran away in different directions on seeing the police party. He has further stated that he cannot tell from whose possession narcotics was recovered. Further states that narcotics recovered were weighed at the place of occurrence. P. W.5, Asghar Ali, HC is also an eye-witness.
He has stated that four accused on seeing the police party escaped leaving behind a sac of Charas and a truck while supporting the contents of the prosecution story narrated in the F.I.R. In his cross-examination he states that he does not know informer. He has further stated that there was no driver of truck or cleaner present at the spot and finally he has stated that he does not know from whose possession 66-parcels of Charas were recovered. Niaz Ali, S.-I. Appeared as P.W.6 and also gave the same stance, that is, to the effect that all the four accused on seeing the police party fled away from the spot and left the sac near the truck which on examination by the police party was found to be 80-kilograms of Charas. He further stated that the informer remained with the police party during the raid proceedings, recovery and weighing all the contraband. Further stated that all the accused ran away from the place of occurrence. On one side, he is unaware as to how many secret boxes are lying there. Ibrar Hussain, Inspector recovered despite the fact that he was present at the time of recovery. Riaz Hussain, S.I. Appeared. As P.W.7 stating that he drafted the formal F.I.R. Exh.PC. Muhammad Siddique, Inspector appeared and stated that he was entrusted with the case on 23-4-2009 on which he arrested the appellant and sent him to judicial lock-up. He has further stated that there were eight accused in total, four named and four unnamed. He has stated that when the accused ran away the police party was at a distance of 2/3 feet from the truck. He found the appellant. Guilty.
11. The case of the prosecution as stated in the Crime Report and the evidence of the witnesses is to the effect that the appellant and three other accused were unloading the contraband from a truck, which was intervened by the police and on the said intervention by the police the accused persons managed to escape.
12. Now, here the stance of the appellant is to the effect that no recovery of the contraband was got effected from the possession of the appellant. It is in the F.I.R. That a sac was lying near the truck and no accused, was present at the time of alleged recovery, it is the case of the prosecution that the appellant fled away on seeing the police party. P.Ws.4 and 5 have categorically stated that they do not know as to from whose possession the narcotics was recovered on the one hand and on the other hand both the witnesses have firstly stated that at the time of raid only four accused were present and not eight as alleged by P.W.9 and all the said four accused ran away/managed to escape in various directions. Both the prosecution witnesses have stated that they do not know the accused persons personally nor had they seen them before the occurrence. P.W.6, has also shown his ignorance to the effect that he does not know from whose possession Charas was recovered. Lastly, the testimony of P.W.9 is also silent with regard to the recovery of contraband. It is also to be seen that the name of the appellant is not in the recovery memo, therefore, it can safely be sated that the prosecution has not been able to prove the recovery of the Charas/contraband from the possession of the appellant and the other named co-accused. The whole evidence of the prosecution in this regard is altogether indifferent or silent.
13. It is also noteworthy here that no identification test of the accused took place, which ought to have taken place, as all the prosecution witnesses were not known to the appellant or the other named accused, it was only the spy/informer/Mukhbar who is stated to know the appellant and the other co-accused. This is evident from the testimony of the P.Ws wherein they have categorically stated that they are not known to the accused rather, they saw the appellant and the other co-accused for the first time at the time when the raid was conducted.
14. Another important aspect here in this case is to the effect that all the prosecution witnesses are police officials. Admittedly the place of occurrence was a popular area where many people were even present at the relevant time but the prosecution and the police did not bother to join/associate any independent witness so as to strengthen their stance against the appellant and the other co-accused. The testimony of the P.Ws.4 and 6 supports the fact that at the time of occurrence there were many people present there and the police did not join single one of them.
The judgments referred to by the learned counsel for the appellant substantiate his points being relevant are applicable to the facts of this case.
15. The stance of the prosecution with regard to the spy information is contrary. Most of the P.Ws.
Are not known to the spy/informer/Mukhbar except for P.W.9. It is astonishing to note here that there were 12-police officials' who raided the spot and only four accused managed to escape. On one side or on all directions it has been stated by the prosecution witnesses not a single accused could be arrested. This shows that the prosecution has a doubtful stance with regard to the presence and the escape of the appellant and other co-accused. P.Ws.4, 5 and 6 have negated the stance of the prosecution narrated in the F.I.R., that is, to the effect that there were eight accused four named and four unnamed. Three prosecution witnesses have in a very crystal clear manner that there were only four accused at the time of raid and not eight. Another important aspect with regard to the identification test of the accused, admittedly, the appellant was not known to a single prosecution witness at the time of raid or prior to that. The whole prosecution evidence is silent on this issue. Not a single witness uttered a word as to how he came to identify the appellant or with regard to the effect as to the source of identification. P.Ws.4 and 5 have stated that prior to the time of raid they did not know the appellant and have not met him, rather the said witness they have stated that the appellant was stranger to them. P.W.5 has stated that at the time of raid the Mukhbar/spy was not present at the spot. Finally it is evident from the prosecution evidence that the truck alleged to have been recovered by the prosecution side in this case was not in a working condition, on the one hand and on the other hand, there is no evidence to link the appellant with the truck in any manner whatsoever.
16. The stance taken up by the learned DPG do not find support from the evidence produced by the prosecution side.
17. In the light of what has been discussed above, the prosecution has miserably failed to prove the charge levelled against the appellant Abdul Wahab and as such the appeal is accepted and the conviction and sentence awarded to him vide judgment dated 19-9-2011 is set aside. The appellant Abdul Wahab is in jail. He is also directed to be released forthwith, if not required in any other case.