SARDAR MUHAMMAD SARFRAZ DOGAR, J.- Khawani Gull son of Jumma Gull, the appellant, was involved in case FIR No.1193/2007, dated 24.12.2007, under Section 9-C of Control of Narcotic Substances Act, 1997, registered at Police Station Sargodha Road, District Faisalabad, and was tried by the learned Additional Sessions Judge, Faisalabad. The learned trial Court seized with the matter in terms of judgment dated 20.4.2010 convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced her to undergo life Imprisonment R.I. With the direction to pay Rs.1,00,000/- as fine and in case of default thereof, further undergo S.I. For one year.
The benefit of Section 382-B Cr.P.C. Was also extended to her. The appellant has assailed her conviction and sentence through filing of instant appeal.
2. The prosecution story as alleged in the F.I.R. (Exh.PA/1) is that 24.12.2007, at about 6:30, the complainant along with other police officials during patrolling stopped a car bearing registration No.579/ALF Karachi, Mehran white colour, driven by Khawani Gul, on suspicion. On search of car, 60 packets of charas each weighing 1250 grams, total 75 kilograms were recovered from the dickey of the said car. On interrogation, Khawani Gull (appellant) told that he was involved in trade of charas along with Alam Saeed and Saeed Kareem. 10/10 grams from each packet was separated for chemical analysis. Besides narcotic substances, Rs.2250/-, coloured copy of I.D. Card and a mobile phone were also recovered from the appellant during his personal search.
3. After registration of formal FIR, investigation was conducted and report under Section 173 Cr.P.C.
Was prepared by the Police Investigator while placing the name of appellant in Column No.3 of the challan.
4. The learned trail Court formally charge sheeted the accused on 28.8.2008, to which he pleaded not guilty and claimed trial. The prosecution has produced as many as eight witnesses.
Muhammad Nawaz 3061/C (PW-1) deposed about transmission of sample parcels to the office of Chemical Examiner. Muhammad Tariq ASI (PW-2) is scriber of FIR. Muhammad Akram Dogar S.I.
(PW-4) is the witness of recovery of narcotic substances. Mian Muhammad Akmal DSP (PW-5) is the complainant of instant case. Rana Ata-urRehman Inspector (PW-7) is the Investigating Officer of instant case. Najmul Hassan 1522/HC (PW-8) deposed about safe custody of sample parcels and case property.
5. The prosecution after giving up Saifulah 3804/C being un-necessary and tendering the original certificate of Insurance (Exh.PJ), original Authority Letter (Exh.PK), original acceptance letter (Exh.PL), copy of FIR No.822/06 (Exh.PM), letter of subrogation (Exh.PN), application for issuance of NOC for the sale of vehicle No.LWR 3343 (Exh.PO), application I.G.B. Insurance company and order of learned Judicial Magistrate (Exh.PP), ownership certificate (Exh.PQ) and report of Chemical Examiner (Exh.PR) closed the prosecution case.
6. On closing of prosecution case, the learned trail Court examined the appellant under Section 342 Cr.P.C. Wherein he professed innocence. In reply to the question why this case against you and why P.Ws. Have deposed against you, he deposed as under:- "The PWs being police officials are interested witnesses and deposed falsely being subordinate to the complainant. No independent witness has been produced by the prosecution against me.
Prosecution has made me an scapegoat. The real culprits were intentionally let off by the police after taking huge amount as bribe. All the PWs have contradicted on the material/major points and involved me in the instant case. Nothing was recovered from my possession. All the recoveries are planted against me at the behest of the real culprit. The whole prosecution story has been knitted against me falsely. I am innocent."
The appellant neither opted to appear as his own witness in terms of Section 340 (2) Cr.P.C. Nor produced any evidence in defence.
7. After hearing the arguments advanced by the learned counsel appearing on both sides, the learned trail court, while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.
8. Learned counsel for the appellant has contended that the appellant has been involved in the false case by the police just to show their efficiency; that all the prosecution witnesses are police officials so there is a clear violation of section 103 Cr.P.C.; that the occurrence as narrated in the FIR had not taken place at all and that during the course of investigation nothing has been recovered from the possession of the appellant; that as the prosecution has failed to prove its case beyond any shadow of doubt against the appellant, therefore, appellant deserves acquittal.
9. On the other hand, learned Law Officer has opposed the contention raised on behalf of the appellant and stated that in view of the quantity of recovered narcotic substance, the learned trial court has rightly convicted the appellant and that the prosecution has proved its case by producing reliable and independent evidence beyond any shadow of doubt.
10. We have heard the arguments advanced by the learned counsel for the appellant as well as learned Law Officer and have minutely perused the record available on the file.
11. After careful scrutiny of the materials on record, we come to the conclusion that the prosecution has failed to prove its case beyond any shadow of doubt by way of producing independent, reliable, confidence and reliable evidence. There are material contradictions, inconsistencies and discrepancies in the prosecution evidence available on the record.
12. A glimpse of prosecution evidence transpired that the material witnesses of instant case have remained inconsistent with regard to the occurrence. Muhammad Akram Dogar S.I. (PW-4) deposed during cross-examination that the charas (P2) was of black colour, in rectangle shape and the same was sent to the police station while placing in the Dickey of the car. Contrary to the above, Mian Muhammad Akmal DSP (PW-5) deposed that the recovered charas was of dark gray colour, in rectangular shape and was sent to the police station through private dala. He (PW-5) further deposed that after recovery proceedings he drafted the complaint Exh.PA and sent the same to the police station along with recovered articles through Iftikhar Ahmad, Afzal Ahmed and Muhammad Rafique constables. Whereas, Rana Ata-urRehman Inspector/Investigating officer (PW-7) deposed that after receiving the file of this case he reached at the place of recovery where Akmal Inspector (PW-5) handed over to him the recovered articles and the recovered charas was sent to the police station through official vehicle. Rana Ata-ur- Rehman Inspector/Investigating officer (PW-7) failed to tell the exact shape of recovered narcotics, however, he admitted that no date was mentioned on the complaint (Exh.PA). Rana Ata-ur-Rehman Inspector/Investigating officer (PW-7) further deposed that he delivered the sample parcels and recovered articles to the Moharrar. On the other hand, Najamul Hassan 1522/HC (PW-8) deposed that the sample parcels and case property were handed over to him by Muhammad Akmal Inspector (PW-5).
13. As far as safe custody of the case property is concerned, we have gone through the deposition of Muhammad Tafiq A.S.I./D.O. (PW-2), who deposed on oath that on 24.12.2007, he, while working as duty officer, received complaint (Exh.PA) along with sample of charas and case property through Iftikhar Ahmed 1081/C. Whereas, he had not stated a single word regarding the fact that after receiving parcels of the samples and case property he (PW2) deposited the same with the Moharrar for safe custody. Contrary to the above, Najmul Hassan 1522/H.C. (PW-8) deposed that on 24.12.2004, while working as Moharrar at Police Station Sargodha Road, Faisalabad, Muhammad Akmal Inspector (PW-5) handed over to him 30 sealed parcels said to contain charas for the safe custody in Malkhana and 60 sealed parcels for sending the same to the office of Chemical Examiner for the purpose of analysis. While facing the cross-examination, he (PW-8) admitted that in his statement recorded under Section 161 Cr.P.C. Before the Investigating Officer the date 24.12.2007 was not mentioned. He (PW-8) further deposed that he did not state to the Investigating Officer in his statement that the above said parcels were handed over to him on 11.1.2008 (confronted with Exh.DB wherein it is so mentioned). Contrary to the deposition of Najamul Hassan (PW-8), complainant (PW-5) deposed during examination in chief that he sent the recovered articles along with complaint (Exh.PA) to the police station through Iftikhar Ahmed, Afzaal Ahmad and another police official. Whereas, Rana Atta-ur-Rehman Inspector/Investigating Officer (PW-7) deposing during cross-examination that the parcels of the samples were delivered by him to the Moharrar. These contradictions between the statements of Muhammad Tariq A.S.I./D.O. (PW-2), complainant (PW-5), Investigating Officer (P-7) and Najmul Hassan 1522/H.C. (PW-8) clearly reflects that the prosecution failed to prove the safe custody of samples and case property, which causes a dent in the story of the prosecution and missed the link of the chain of the prosecution and failed to bring home the guilt of the appellant to its hilt.
There were so many omissions and contradictions in the evidence of prosecution witnesses affecting the entire fabric of the prosecution case. The prosecution also withheld best evidence available with them in shape of Iftikhar Ahmad, constable who allegedly handed over the complaint (Exh.PA), sample parcels and case property to Muhammad Tariq A.S.I./D.O. (PW-2) and non-production of this material witnesses cast serious doubt on the prosecution case, because non-production of material witnesses suggests that they would not support the prosecution case.
The withholding of this important evidence in the peculiar circumstances of this case leads us to draw an adverse inference against the prosecution keeping in view Article 129 (g) of Qanun-e- Shahadat Order, 1984. The prosecution is failed to explain that why the best evidence available with the prosecution in shape of statement of Iftikhar Ahmed constable has been withheld, as such a presumption under Article 129 (g) of Qanun-e-Shahadat Order, 1984 is to be drawn against the prosecution. All the circumstances mentioned above are sufficient to believe that the prosecution case is highly doubtful and based on un-natural and unbelievable story. Guidance is sought from Muhammad Rafique and others v. The State and others (2010 SCM R 385) and Lal Khan v. The State (2006 SCM R 1846).
14. All the above contradictions are material in nature and cogitates that the material prosecution witnesses of the case are inconsistent on the dimension of recovery of narcotics from the possession of appellant meaning thereby their testimonies lacks intrinsic value and inherent worth and thus cannot be safely relied upon.
15. Our careful appraisal and independent analysis of the evidence on the record, coupled with the defence version advanced by the appellant in his statement under Section 342 Cr.P.C., the prosecution evidence deserves to be rejected, which have created an impression on our minds that the prosecution has failed to prove the case against the appellant beyond a reasonable doubt. The depositions of prosecution witnesses are not up to the mark on the basis whereof no conviction can be recorded.
16. Keeping all the above possibilities in mind and raising necessary inferences from the facts available on the record we have arrived at a conclusion that a possibility cannot safely be ruled out of consideration regarding the appellant having been falsely implicated in the present criminal case and, thus, we have decided to extend the benefit of doubt to the appellant. Guidance is sought from Akhtar Iqbal v. The State (2015 SCM R 291) wherein the Hon'ble Supreme Court of Pakistan held as under:- "Parcels of recovered narcotic were sealed with the monogram (name initials) of an official who was not even posted at the relevant police station at the time of alleged recovery from accused--- No explanation was offered as to why the said parcels did not contain the monogram of the recover officer--- Prosecution claimed that a sample had been taken from each and every slab of recovered substance but note recorded by Trial Court in such regard tendered to create an impression that such claim might not be correct---Accused in his statement under S. 342, Cr.P.C.
Claimed that he had been falsely implicated in the present case because he was instrumental in the arrest of a drug baron, who was later on convicted and sentenced to death---Probability existed that accused was falsely implicated in the present case---Appeal was allowed and accused was acquitted of the charge by extending him benefit of doubt."
It is also held by the Hon'ble Supreme Court of Pakistan in the case reported as Gul Noor Ali v. The State (2015 SCM R 279) that:- "Prosecution thereafter proceeded with its case by adducing evidence of other prosecution witnesses who were all police officials---Public witness associated with recovery of narcotic had not supported the prosecution case, which created a dent in the veracity of the recovery being effected, and thus serious doubts had arisen, benefit of which had to go to the accused-- Separate samples had not been taken from each and every packet for chemical analysis rather only one sample weighing 10 grams had been separated and sent for chemical analysis, and it had also not been specified as to from which packet the sample was separated---Such circumstances created serious doubt in the prosecution case, benefit of which had to go the accused---Appeal was allowed accordingly and conviction and sentence of accused under S. 9(c) of Control of Narcotic Substances Act, 1997, was set aside."
17. The crux of above discussion is that the prosecution has badly failed to prove its case against the appellant beyond any shadow of doubt. We come to the conclusion that the findings of learned trial Court regarding conviction of the appellant are based on misreading, non-reading and misappreciation of evidence available on record and are not sustainable in the eye of law, therefore, the appellant deserves acquittal.
18. For the above reasons, this appeal is allowed, the judgment dated 20.4.2010 whereby appellant was awarded conviction and sentence is set aside, and the appellant is acquitted of the charges.
19. The appellant is in jail. He be released forthwith if not required in any other case.