SHAKEEL AHMED BALOCH, J.---This judgment disposes of Criminal Appeal No, 87 of 2015 filed by the appellant Ghulam Sarwar son of Taoos Khan. Against the judgment dated 191h March, 2015.
(hereinafter referred as, the impugned judgment") passed by learned Special Judge CNS Lasbela at Hub (hereinafter refereed as. "the trial Court"), whereby the appellant was convicted under section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred to "CNS Act, 1997") and sentenced to suffer R.I. For life, with fine of Rs,100,000 (Rupees one hundred thousand) and in default thereof to further suffer S.I. For one (1) year, with the benefit of section 382-B, Cr.P.C.
2, Facts of the case are that on 18th February 2013 at 12:15 hours the complainant Abdul Hafeez, Inspector, Mobile Squad-I, Custom House, Gaddani registered FIR No,5/2013 at Custom House, Gaddani under section 9(c) CNS Act, 1997, stating therein that pursuant to an authentic information received through the Collector of Customs, MCC, Gwadar to the effect that an attempt would be made to smuggle narcotics by Hino Mini Truck bearing Registration No,FKU-845 a strategy was devised by the Additional Collector of Customs Gwadar and Deputy Collector of Customs Preventive, MCC, Gwadar so as to nab the smugglers. The staff of Mobile Squad No,1 posted at Khurkhera was alerted. At about 4 a.m. a Hino Mini Truck having same registration number arrived at Khurkhera Customs Post, which was signaled to stop. The truck was found loaded with Iranian fresh apples. The driver namely, Ghulam Sarwar (appellant) was asked to provide the registration book of the vehicle for which he provided photocopy of G.D.KAPR-HC82424 and stated that he has forgotten her registration book at Quetta. In the meanwhile appellant was taken into custody and all the crates of fresh apples were unloaded. After unloading the crates of apples a square hole in the lower side of cabin was seen which was delicately welded and coloured. The welded piece in the cabin was broken, which resulted into recovery of charas 100 Kg and opium 60 Kg in liquid form.
The recovered contrabands, apples and the vehicle were taken into possession and aforesaid case was registered.
3. In pursuance of above FIR, investigation was conducted by PW-3 Waqqar Ahmed, Inspector, who during investigation, obtained remand of the accused from the Court; recorded the statements of the accused and the witnesses under section 161, Cr.P.C.; on 20-2-2013 sent the convict to the judicial lock-up; sent murasila to Fruit Merchant Haji Mian Gul Fruit Company; submitted the replies of the Fruit Companies before the Court through supplementary challan; inspected the place of incident; received the FSL, report and submitted the same before the Court through the Challan.
4. At trial the prosecution produced three witnesses. Whereafter the appellant was examined under Section 342 Cr.P.C. Though the appellant got recorded his statement on oath under section 340(2), Cr.P.C. But did not produce any evidence in his defence. On conclusion of trial, the appellant was convicted and sentenced as mentioned above. Whereafter the instant appeal has been filed.
5. Learned Counsel for the appellant stated that the prosecution has failed to prove the charge against the appellant beyond shadow of reasonable doubt that all the PWs have made dishonest improvements and contradictions in their deposition, that the ownership of the vehicle was not proved; that the case of prosecution is lacking independent corroboration; that recovery proceedings were not carried out at the spot; that the material so far available on record has not been appreciated in its true perspective; that the prosecution has failed to prove the conscious possession of the appellant; that the defence so raised and proved by the appellant was not taken into consideration; that the conviction of the appellant is result of misreading and mis- appreciation of evidence by the trial Court.
6. Learned Standing Counsel while supporting the conviction contended that sufficient incriminating evidence is available on record to connect the appellant with the commission of offence and the conviction awarded to the appellant is based on proper appreciation of evidence by the trial Court.
7. Heard the learned counsel and perused the record. Perusal of record reveals that the witnesses have made dishonest improvements and contradictions in their deposition before the trial Court. It has come on record that the fard-e-bayan/notice of seizure issued under section 171 of the Customs Act 1969 is typed one, which indicates that the case property was not seized at the spot rather the same was carried out at the Customs House later on. Whereas to the contrary the complainant/PW-1 in his cross-examination mentioned that the same was written by him by hand whilst sitting nearby the road at the spot. PW-1 admitted in his cross-examination that the memos.
For withdrawing of the samples of Charas and Opium were not prepared at the spot. He further brought on record that the weighing of recovered contraband was carried out by Hawaldar Nazir, while PW-2 brought on record that the alleged recovered contraband was weighed at the spot by Muhammad Hafeez. PW-2 admitted that he did not see the appellant sitting on the driving seat.
PW-2 stated that his statement was recorded at the spot, while PW-3 stated that he recorded the statements of witnesses at Custom House Gaddani. PW-3 admitted that during investigation the appellant had stated that he had no knowledge with regard to concealment of narcotics in the vehicle.
8. As far as the preparation of seizure memo. Of recovered contraband and withdrawal/preparation of samples at the spot is concerned, the same were not prepared at the spot rather it transpires from the record that the appellant along with the allegedly recovered contraband was brought to Custom House Gaddani, where the recovery proceedings were carried out. Admittedly, neither the seizure memos. Were prepared at the spot nor samples were drawn at site. Which is an illegality. On reappraisal of the statement of PWs it has been proved that neither the samples were drawn nor the alleged contraband were sealed at the spot rather entire contraband were taken to Custom House Gaddani. The complainant has failed to tender any plausible explanation as to why the alleged contraband were not sealed at the spot and why the samples were not drawn at the spot. It is held that non-sealing of samples soon after its recovery created serious doubt in the prosecution case and no implicit reliance can be placed on Chemical Examiner's report. The FSL report has lost its evidentiary value. Reliance in this regard is placed on the case of Khan Bacha v. The State PLD 2006 Karachi 698. The relevant portion is reproduced below: "In the light of what has been discussed above it has not been proved beyond any shadow of doubt that the property was sealed at the place of the incident, therefore, there is no guarantee that the property was not tampered with. The subsequent sealing of the property elsewhere would not rectify the defect already made during course of investigation at the initial stage: hence the chemical analyzer's report has lost its evidentiary value. If the property was subsequently sealed then the prosecution was required to explain the circumstances for doing so and to further specifically show that the property was not tampered with or replaced. There is no such explanation furnished by the prosecution in this case, therefore, non-sealing of the sample immediately after its recovery creates serious doubt in the prosecution case, hence no implicit reliance can be placed on chemical analyzer's report. If the chemical analyzer's report taken out of the consideration then there is nothing left with the prosecution to prove that the alleged property was Charas."
9. As far as the ownership of the vehicle, is concerned the prosecution has also failed to prove the ownership of the same. The prosecution has also failed to place on record the registration documents of the same. There is nothing on record that the said vehicle is owned by the appellant or that he was driving the same as driver, which fact was admitted by PW-2. The prosecution has absolutely failed to establish the connection of the appellant with the vehicle or the allegedly recovered Contraband. Mere words of the prosecution witnesses are not enough to connect the appellant with the said vehicle or the contraband. The recovery of contraband was not effected on the pointation of the appellant. The prosecution has failed to prove the conscious possession or knowledge of the contraband concealed in the secrete cavities of the truck.
The trial Court has also failed to properly appreciate the defence plea of the appellant about his lack of knowledge of the contraband concealed in secret, cavities of the truck.
10. The reappraisal of evidence on record reveals that the prosecution has failed to bring home the charge against the appellant beyond any shadow of doubt. The entire case of the prosecution is defective doubtful and full of contradictions. The judgment of the trial Court suffers from misappreciation. Non-reading and misreading of the evidence available on record. According to settled principles, of law, whenever a doubt is created, the benefit of same has to be given to the accused not as a matter of grace but as a matter of right. Despite the fact that sufficient doubts were created in the prosecution cases, the benefit of the same was not extended in favour of appellant by the trial Court.
For the above reasons, the appeal is accepted. The impugned judgment dated 19th March, 2015 passed by learned Special Judge CNS Lasbela at Hub is set aside and the appellant Ghulam Sarwar son of Taoos Khan is acquitted of the charge under Section 9 (c) of the CNS Act, 1997. The appellant being in custody is ordered to be released forthwith if not required in any other case.
Above are the reasons of our short order dated 4th August, 2015. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.