Aalia Neelum, J.- Mst. Parveen Bibi wife of Mulazim Hussain, Caste Muslim Sheikh, resident of Chak No.330/JB, Seowal Tehsil & District, Toba Tek Singh, the appellant was involved in case F.I.R. No.378 of 2005, dated 16.10.2005, offence under Section 9 (C) of the Control of Narcotic Substances Act, 1997, registered at Police Station City Toba Tek Singh and was tried by the learned Additional Sessions Judge-II, Toba Tek Singh. The learned trial court seized with the matter in terms of judgment dated 07.03.2007 convicted the appellant under Section 9 (C) of the Control of Narcotic Substances Act, 1997 and sentenced to undergo imprisonment for life with the direction to pay Rs.50,000/-as fine and in case of default thereof, further undergo Simple Imprisonment for six months. The benefit of Section 382-B of Cr.P.C was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial court, Mst. Parveen Bibi-appellant assailed her conviction through filing of the instant appeal.
3. The prosecution story as alleged in the F.I.R (Ex.PB/2) lodged on the complaint (Ex.PB) of Muhammad Farooq Ahmed, Excise Inspector, Toba Tek Singh (PW-4) is that on 16.10.2005 at about 06:00 a.m, (morning) he (PW-4) along with Muhammad Yasin, S.I. (PW-5), Muhammad Sabir, A.S.I (PW-3), Nousher Ali 327/C, Liaqat Ali 777/C, Muhammad Yousaf 272/C, Bashir Ahmad 510/C, Muhammad Sharif 305/C driver of the official vehicle No.34/LOT and Muhammad Afzal, Excise Constable were present at bridge Chak No.330/JB Seowal on patrolling duty as well as in search of drug peddlers. In the meanwhile, a secret informer came there and informed him (PW-4) that Mst.
Parveen Bibi was selling "Bhang" while sitting on the cot lying outside of her house and she could be arrested, if a raid was conducted, whereupon a raiding party was constituted by him (PW-4). Later on, the raiding party reached at the Dera of Mst. Parveen Bibi. On the pointation of spy, Mst. Parveen Bibi was apprehended and underneath her cot, a sack "theila" of "Bhang" (P-1) weighing 20- Kilograms was recovered which was taken into possession by the complainant (PW-4) vide recovery memo (Ex.PA). Out of the recovered substance, 100 grams "Bhang" was separated for chemical analysis whereas remaining "Bhang" was taken into possession by embossing a seal of MF. Thereafter the complainant (PW-4) handed over the complaint (Ex.PB), recovered "Bhang" along with its sample and physical custody of Mst. Parveen Bibi to Muhammad Yasin, S.I. (PW-5).
After completion of police "karvai", Muhammad Yasin, S.I. (PW-5) further handed over the case property, the complaint (Ex.PB) and physical custody of Mst. Parveen Bibi to Muhammad Sabir, A.S.I (PW-3) and Muhammad Yousaf, 1272/C for onward transmission to the duty Investigating Officer for further proceedings as well as for registration of formal F.I.R.
4. On receiving of complaint (Ex.PB), Muhammad Sabir, A.S.I (PW-3) chalked out formal F.I.R.
Thereafter the investigation was conducted by Muhammad Hussain, Inspector (PW-6), who on receipt of copy of F.I.R., reached at the place of recovery and recorded the statements of the prosecution witnesses under Section 161 Cr.P.C. Thereafter the Investigating Officer (PW-6) prepared rough site plan of place of recovery (Ex.PC). On reaching the police station, the Investigating Officer (PW-6) sent the accused to judicial lock up after getting her medical examination from District Headquarter Hospital, Toba Tek Singh. Thereafter on 15.11.2005, he (PW-6) recorded statements of Muhammad Farooq, Moharrar 575/HC (PW-2) and Nasim Bari 23/C (PW-1) constable under sections 161 Cr.P.C., regarding sending of sample parcel to the office of Chemical Examiner, Lahore.
5. Having found the accused guilty, the Investigating Officer prepared report under Section 173 Cr.P.C., while placing her name in Column No.3 of the Challan and sent the same to the court of competent jurisdiction.
6. The learned trial court formally charge sheeted the appellant on 18.08.2006, to which she pleaded not guilty and claimed trial. The prosecution in order to advance its case produced as many as six witnesses. Muhammad Farooq Ahmed, Excise Inspector (PW-4) is the complainant of the case, whereas, Muhammad Hussain, Inspector (PW-6) is the Investigating Officer of the case while Muhammad Sabir, A.S.I (PW-3) and Muhammad Yasin, S.I. (PW-5) are witnesses of recovery.
Nasim Bari 23/C (PW-1) deposed that on 11.11.2005, Moharrar (PW-2) handed over to him one sealed parcel said to contain sample "Bhang" for onward transmission to the office of Chemical Examiner, Lahore which he (PW-1) deposited in the said office on 12.11.2005. Whereas Muhammad Farooq 575/HC (PW-1) deposed that on 16.10.2005 he was posted as Moharrar at police station, City Toba Tek Singh and on the same day, Yaseen, S.I. Handed over to him two sealed parcels said to contain "Bhang" i.e. One parcel containing sample of "Bhang" and the other containing remaining recovered 20 Kilograms "Bhang". He deposited the case property in the District Malkhana on 28.10.2005. On 11.11.2005 he (PW-2) handed over to Nasim Bari 23/C sample of "Bhang" for its onward transmission to the office of Chemical Examiner, Lahore, intact.
7. On 16.10.2006 the learned Deputy District Attorney gave up PW-Muhammad Afzal, Excise Constable being un-necessary and Closed the prosecution evidence on 24.01.2007 after tendering the report of Chemical Examiner (Ex.PD).
8. The appellant was also examined under Section 342 Cr.P.C, wherein she opted not to lead defence evidence and not to appear as her own witness in terms of Section 340 (2) Cr.P.C in disproof of allegations levelled against her and while replying to a question that why this case against her and why the PWs have deposed against her, the appellant made the following deposition:- "This is a false case against me. The police officials registered the same to show their progress to the high-ups of the police department with the connivance of Muhammad Farooque Ahmed Excise Inspector. All the PWs are police officials and are subordinate to the I.O. And they have deposed falsely against me on the asking of high-ups of the police."
9. After hearing the arguments advanced by the learned counsel appearing on both sides, the learned trial 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.
10. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Law Officer and perused the record.
11. There are contradictions in the case of the prosecution as to who deposited the samples and case property in the Malkhana and when the sample was deposited in the office of Chemical examiner. It is the prosecution case that on 11.11.2005 Muhammad Farooq, HC (PW-2) handed over one parcel containing `Shang" to Nasim Bari, Constable (PW-1) for onward transmission to the office of Chemical Examiner. The Chemical Examiner report (Ex.PD) reflects that Nasim Bari, Constable (PW-1) deposited the parcel of sample taken from the seized substance `Shang" in the office of Chemical Examiner, Lahore on 08.11.2005. However, Nasim Bari, Constable (PW-1) deposed during examination-in-chief that he received sample from Muhammad Farooq, Moharrar (PW-2) on 11.11.2005 which was deposited by him in the office of Chemical Examiner on 12.11.2005. Nasim Bari, Constable (PW-1) admitted during cross-examination that he did not mention date of deposit of parcel with the office of Chemical Examiner in his statement under section 161 Cr.P.C. The sample taken from the seized substance `Bhang" and sent to the office of Chemical Examiner has not been proved by the prosecution. We, therefore, come to the conclusion that prosecution has not been able to prove that as to when the sample was deposited in the office of Chemical examiner. It is an admitted fact that the link evidence has not been proved by the prosecution. All what has to be considered is whether the prosecution was able to prove that a sample which was in the custody of Muhammad Farooq, H.C (PW-2) was deposited in the office of Chemical Examiner by Nasim Bari, Constable (PW-1) remained intact and the same was not tempered with. Admittedly from the deposition of Nasim Bari Constable (PW-1), it reveals that he (PW-1) retained the sample with him for one day. On perusal of Chemical examiner report (Exh.PD), it reveals that the prosecution has not adduced any evidence to show that the sample of the seized substance `Bhang" remained intact and the same was deposited with the office of Chemical Examiner without tempering. The report cannot be used as corroborative piece of evidence against the appellant, as the same relates to the sample which was received in the office of Chemical Examiner on 08.11.2005. This point goes to the root of the prosecution case. Thus, the possibility that the sample may have been tampered with cannot be ruled out.
12. The prosecution has not established the safe custody of recovered substance. The main link after seizer of Substance `Bhang" till deposit of sample and the seized substance `Bhang" (case property) with Malkhana is missing in the instant case. The complainant, Muhammad Farooq, Excise Inspector (PW-4) deposed during examination-in-chief that he prepared the complaint (Ex.PB) and handed over the same along with the case property (P-1), sample "Bhang" and accused to Muhammad Yasin, S.I. On the other hand, Muhammad Yasin, S.I. (PW-5) deposed during examination-in-chief that Farooq (PW-4) handed over custody of the accused Mst. Parveen Bibi along with the case property for further proceedings to him; Whereupon he (PW-5) recorded police proceedings on the complaint (Ex.PB) and handed over the case property and the accused to Muhammad Sabir, A.S.I (PW-3) and Muhammad Yousaf, constable for the registration of case and sent the same to the police station. Muhammad Sabir, A.S.I. (PW-3) stated the same fact that Muhammad Yasin, S.I. (PW-5) handed over to him the complaint, case property, sample and accused and he along with Muhammad Yousaf, Constable came to the police station and handed over the same to the Moharrar of the police station on the same day. Whereas contrary to the above deposition Muhammad Farooq, H.C (PW-2) deposed that Muhammad Yasin, S.I. (PW-5) handed over to him two sealed parcels on the same day. Moreover from the evidence on record, it is clear that on the point of handing over sample and the seized substance "Bhang" (case property) to Moharrar-Muhammad Farooq, H.C (PW-2) for keeping it in safe custody in the Malkhana is clear contradiction. Even Muhammad Farooq, HC (PW-2) deposed during examination-in-chief that he deposited the seized substance "Bhang" (case property) with the District Malkhana on 28.10.2005. Muhammad Sabir, A.S.I. (PW3) nowhere states that it was under his direction and supervision the Moharrar-Muhammad Farooq, H.C (PW-2) had taken out sample and the seized substance "Bhang" (case property) from the Malkhana and deposited the same with District Malkhana. During cross- examination, Muhammad Farooq, H.C (PW-2) admitted that he deposited two sealed parcels with the District Malkhana on 28.10.2005 and this was not mentioned by him in his statement under Section 161 Cr.P.C.
13. In the trial, it was necessary for the prosecution to establish by cogent evidence that the seized substance "Bhang" 20-Kilograms was Recovered from the possession of the accused and was kept in the safe custody. The oral testimony of Nasim Bari Constable (PW-1) was not corroborated by the Chemical Examiner Report (Exh.PD). There is no explanation for this failure to establish safe custody of the seized substance `Shang" from the time and date of the seizure and from the date till their deposit in the Malkhana and onward transmission to the office of Chemical Examiner. Mere oral evidence of the prosecution witnesses as to the seized substance `Shang" weighing 20- Kilograms does not discharge the heavy burden which lies on the prosecution.
14. So after a due consideration of the facts and circumstances of the case and the points discussed above we come to the conclusion that the prosecution has not been able to prove the charge leveled against the appellant. Since there was inherent illegality in the matter, the conviction cannot be upheld and finding in this regard is required to be set aside and the same is set aside and as a consequence whereof, the appeal is accepted and Perveen Bibi, appellant is ordered to be acquitted of the charge in case F.I.R. No.378 of 2005, dated 16.10.2005, offence under Section 9 (C) of the Control of Narcotic Substances Act, 1997, registered at Police Station City Toba Tek Singh.
15. The appellant is on bail, as Crl.Misc.No.01 of 2008 qua suspension of sentence of the appellant was accepted by this Court vide order dated 03.7.2008, therefore, her surety stands discharged. 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.