' ARSHAD MAHMOOD TABASSUM, J.---The appellant, Sardar Ali, involved in case bearing F.I.R. No. 180, dated 18-6-2013, under section 9(c) of the Control of Narcotic Substances Act, 1997, (the Act) registered at Police Station Kaliar Kahar District, Chakwal, was tried by the learned Sessions Judge, Chakwal, who, vide his judgment dated 22-10-2013, convicted the appellant under section 9(c) of the Act and sentenced him to 4 years' R.I., with a fine of Rs. 50,000 or in default of payment of fine to further undergo six months' S.I. Benefit of section 382-B, Cr. P.C., was also extended to him.
2. Briefly, the prosecution case, as set out in the F.I.R. Which was registered on the written complaint (Exh.PD) drafted by Ijaz Abbas S.I./P.W.3, is that he along with other police officials was present at Karoli Chowk, when a motorcar came from the side of Kallar Kahar which was signalled to stop, but the driver rushed the car which was chased by the official vehicle and was intercepted; that the said motorcar was bearing Registration No. LOS/6021, and driven by the present appellant; that during his personal search from underneath his worn Kameez two packets of charas garda were recovered; that when weighed total charas so recovered came to 2075 grams; that small quantity of charas was separated from each packet, and as such 10 grams in total was made into a separate parcel for sample while remaining charas was also made into a parcel which was taken into possession through recovery memo. Accordingly, he prepared complaint Exh.PD and forwarded the same to the police station for registration of the case. On the basis of which, the instant case was registered.
3. The appellant was formally charge-sheeted, to which, he pleaded not guilty and claimed trial.
Consequently, the prosecution evidence was summoned.
4. During trial the prosecution examined as many as four Prosecution witnesses. Rehmat Ullah 555/HC, P.W.2, is a witness of recovery and corroborated the contents of the F.I.R. Syed Ijaz Abbas S.H.O. (P.W.3) has investigated the case. He also corroborated the contents of the F.I.R., and described various steps taken during investigation of the case. The other witnesses were of formal nature. The learned Prosecutor gave up P.W. Izhaar ul Hassan being unnecessary and after tendering report of Chemical Examiner Exh. PF closed the prosecution evidence.
5. On conclusion of trial, accused was examined under section 342, Cr.P.C., and the entire prosecution evidence was put to him in the shape of questions which he termed as incorrect. In his defence, the appellant has stated as under:-- "I am innocent. I was intercepted and arrested by the police on the basis of suspicion. No narcotic substance i.e. Charas was recovered from my possession. The alleged recovered charas was foisted upon me just to show police efficiency. P.Ws. Have deposed against me being subordinate of the complainant."
6. On conclusion of trial, the appellant was convicted and sentenced as aforesaid. Hence, this appeal.
7. Learned counsel for the appellant has argued that the learned trial Court has misread and misconstrued the evidence available on record and thereby illegally convicted and sentenced the appellant; that it was bounden duty of the prosecution to prove its case against the appellant beyond reasonable doubt, but the fact of the matter is that the recovery memo Exh.PA which is of paramount importance in this case has not been proved by the prosecution in accordance with law. In this regard, he has maintained that only one witness of recovery, namely, Rahmat Ullah P.W.2, has been produced to prove recovery memo Exh.PA, but the signatures of the said Rahmat Ullah 555/HC are not available on the recovery memo. Meaning thereby, that he cannot be considered to be an attesting witness of the said recovery memo; that the other witnesses namely, Izhar ul Hassan was given up and the statement of the I.0 alone remained there in support of the said recovery memo, but he being complainant of the case and an interested person and not being an attesting witness of the recovery memo cannot prove the said recovery memo; that this being so, when the recovery memo has not been proved, no conviction could be based upon the evidence produced by the prosecution. He has also argued that two packets of charas were recovered from the appellant, but no separate weight of any such packet has been mentioned in the complaint and the F.I.R., as such, no definite evidence is there to hold as to what quantity of charas was recovered from the appellant when no sample was separately taken from each packet. He has, therefore, concluded that the prosecution case is full of doubts and discrepancies, the benefit whereof has to be extended to the appellant.
8. On the other hand, learned Law Officer when confronted as to how the appellant could be convicted when the recovery memo has not been attested/signed by Rahmat Ullah P.W.2, had no answer.
9. We have heard the learned counsel for the parties and ourselves perused the record with their able assistance.
10. Although the recovery of 2075 grams charas garda has been alleged against the appellant, but the prosecution was obliged to prove the same through cogent evidence. As pointed out by the learned counsel for the appellant, the recovery memo Exh.PA does not bear signatures of Rahmat Ullah P.W.2, whereas, the other witness namely, Izhar ul Hassan P.W. Was not produced by the prosecution rather he was given up by the Prosecutor vide his statement dated 22-10-2013. The fact that signatures of Rahmat Ullah P.W.2 are not available on the recovery memo Exh.PA further makes the prosecution case doubtful that said Rahmat Ullah was not present at the spot at the time of recovery, because had he been there the I.0 would have obtained his signatures on the recovery memo. This being so, the recovery memo Exh.PA cannot be held to have been pre and as a necessary corollary the recovery of charas from the appellant as alleged by the prosecution also lacks proof. It is also note worthy that the said Rahmat Ullah P.W. Has candidly conceded during cross-examination that recovery memo Exh.PA is not signed by him.
11. In the light of the above discussion, the conviction recorded by the learned trial Court against the appellant appears to be based on misreading and non-reading of evidence available on the record and the same cannot sustain. Accordingly, we accept this appeal and set aside the impugned conviction and sentence of the appellant. The appellant shall be released from jail forthwith, if not required in any other case.