MIRZA VIOAS RAUF, J.The instant appeal is directed against the judgment dated 4th of April, 2006 passed by the learned Additional Sessions Judge/Judge Special Court Control of Narcotic Substances, Wazirabad, whereby the appellant was convicted in case FIR No.200 dated 8th of August, 2004 under Section 9(c) of The Control of Narcotic Substances Act, 1997 registered at Police Station City Wazirabad, District Gujranwala and was sentenced to five years rigorous imprisonment alongwith fine of Rs.20,000/- and in default thereof, three months simple imprisonment. Benefit of Section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to him.
2. Precisely the facts necessary, as divulged in the statement of Muhammad Riaz SI, complainant (PW4) are as under:- "On 8.8.2004 I was posted at P.S. City Wazirabad. On the same day I alongwith Shahid Mehmood 751/C, Muhammad Ilyas 1582/C, Mudasar Zia 1553/C, Shahzad Ahmad 1579/C constables were present in P.S. in connection with the investigation of FIR No.198/04 dated 7.8.04 Offence U/S 9-C of CNSA City Wazirabad. The accused Muhammad Altaf alias Bhola while in custody in case No.198/04 disclosed that he can get recover further charas from the wodden plank (Muddi) lying in a plastic bag which was also lying on the northern side of the courtyard of the house of the accused situated at Mohallah Shish Mohal. On this disclosure I alongwith other police officials went to the house of accused Altaf alias Bhola. We alongwith Muhammad Altaf accused entered into the house of accused. The accused got recovered round wodden plank (Muddy) P2 after opening the plastic bag himself. The wodden plank P2 was recovered and fixed with nails. The cover was opened, then charas was recovered from the Muddi and the same was wrapped in a polythene shopper. The said charas P1 was weighed and it was found 3000 grams. 10 grams charas was separated as sample parcel and two sealed parcels were made. All the charas 3000 grams P1 Muddi P2, plastic bag P3 were taken into possession vide recovery Memo Ex.PA attested by the PWs.
I drafted complaint Ex.PC and sent through Mudasar Zia 1553/C to P.S. for registration of FIR. The said charas was for sale. The complaint Ex.PC bears my signatures. Investigation of this case was entrusted to other police officer."
3. On the basis of above facts case FIR No.200 dated 08th of August, 2004 was registered against the appellant at Police Station City Wazirabad, District Gujranwala. After registration of case, formal investigation was started and on conclusion of the same, report under Section 173 of The Code of Criminal Procedure, 1898 was submitted before the learned trial court and the appellant/accused was sent to face the trial. On receipt of report, the learned Additional Sessions Judge/Judge Special Court Control of Narcotic Substances, Wazirabad framed the charge against the appellant to which he pleaded not guilty and claimed trial.
4. In order to prove the alleged recovery, the prosecution examined as many as six witnesses.
Muhammad AslamConstable No.1635 appeared as PW1. He took the sealed sample parcels to the office of Chemical Examiner. Muhammad Ilyas Constable No.1582, being the recovery witness, was examined as PW2. He narrated all the events which led to the alleged recovery from the appellant.
Allah Wasaya ASI was examined as PW3, he was scribe of the FIR (Exhibit-PB). Muhammad Riaz SI, who was complainant, appeared as PW4. Aman Ullah SI, being Investigation Officer, was examined as PW5. Muhammad Yousaf Head Constable No.1490appeared as PW6, he was officiating as Moharrer at the relevant time. The learned Deputy District Attorney for the State gave up PW Shahid Constable No.751 and after tendering the report of Chemical Examiner in evidence as Exhibit-PE, closed the prosecution evidence.
5. After completion of prosecution evidence, statement of the accused under Section 342 of The Code of Criminal Procedure, 1898 was recorded wherein he pleaded his innocence and stated that a concocted story was made and nothing was recovered from him. He further stated that due to enmity, he was involved in the instant case. The accused did not examine himself on oath under Section 340(2) of The Code of Criminal Procedure, 1898, however he produced attested copy of judgment dated 28th of April, 2005 passed by learned Judge Special Court Control of Narcotic Substances, Wazirabad as Exhibit-DA and certified copy of petition alongwith medical report and order of learned Additional Sessions Judge, Wazirabad as Exhibit-PB in defence evidence. On conclusion of evidence and hearing both the sides, the learned trial court vide its judgment dated 4th of April, 2006, convicted the appellant, as already mentioned in paragraph No.1 of the instant judgment.
6. Learned counsel for the appellant submitted that there are serious contradictions in the statements of prosecution witness which are sufficient to negate the prosecution case. Learned counsel in support of his contentions also drawn our attention to the statements of Muhammad Ilyas Constable No.1582 (PW2) and Muhammad Riaz SI (PW4). He maintained that the prosecution has badly failed to prove the sending of parcels to the office of Chemical Examiner. Learned counsel contended that the instant case was registered against the appellant in pursuance to alleged disclosure of FIR No.198 of 2004 and the appellant has already been acquitted in the said case. Learned counsel argued that the appellant has been falsely implicated in the instant FIR and to this effect, he has also produced defence evidence. Learned counsel submitted that the conviction of the appellant has illegally been recorded by the learned trial court.
7. Conversely, learned Additional Prosecutor General submitted that the prosecution has led sufficient evidence to prove its case against the appellant and the learned trial court has rightly convicted him. He added that all the prosecution witnesses fully supported the recovery effected from the appellant. Learned Additional Prosecutor General submitted that in view of Section 29 of The Control of Narcotic Substances Act, 1997, the prosecution has successfully discharged the initial onus of proof and the appellant has failed to prove his innocence.
8. We have heard the learned counsel for the appellant as well as learned Additional Prosecutor General and also perused the record.
9. The instant case is the outcome of FIR No.198 of 2004 dated 7th of August, 2004 registered at Police Station City Wazirabad under Section 9(c) of The Control of Narcotic Substances Act, 1997 against the appellant. As per prosecution story, during interrogation, the appellant disclosed and then led to the recovery of charas weighing 3000 grams from his house. In order to prove the alleged recovery against the appellant, the prosecution produced six witnesses, out of which Muhammad Ilyas Constable No.1582 (PW2) and Muhammad Riaz SI (PW4) are of significance importance, as evidence of both these witnesses directly correspond to the events, which led to the alleged recovery from the appellant. In order to properly appreciate the contentions raised by the learned counsel for the appellant, we have minutely examined the statements of these two witnesses. Muhammad Ilyas Constable No.1582 (PW2) in his examination-in-chief admitted that the appellant was in custody in case FIR No.198 of 2004, prior to the registration of instant case. He also admitted that the accused was arrested by the police on 4/5th August, 2004. Record reveals that case FIR No.198 of 2004 was registered on 7th of August, 2004. This portion of statement of Muhammad Ilyas Constable No.1582 (PW2) clearly reflects that even prior to the registration of case FIR No.198 of 2004, the appellant was already under custody of the police about which there is no explanation on the record. As per statement of Muhammad Ilyas Constable No.1582 (PW2), they reached at the house of the accused at 08:45 am and at the time of raid, door was closed, however the same was not chained from inside. Whereas Muhammad Riaz SI (PW4) stated that we reached at the house of the accused at 08:30 am. He also stated that the door of the house of the accused was opened. In addition to these discrepancies, the statements of both these witnesses are inconsistent even with regard to the manner of raid and location of the house i.e. place of recovery. Aman Ullah SI, being Investigation Officer, appeared as PW5. In his examination-in-chief, he deposed that the case property was handed over to the Moharrer on the same day. His statement under Section 161 of The Code of Criminal Procedure, 1898 was recorded on 16th of August, 2004. This portion of the statement of Aman Ullah SI (PW5) was negated by Muhammad Yousaf Head Constable No.1490 (PW6) who stated that on 8th of August, 2004, Muhammad Riaz SI (PW5) handed over to him two sealed parcels, said to contain charas for keeping in the Maalkhana. Similarly Muhammad Aslam Constable No.1635 while appearing as PW1, stated that in August, 2004, Moharrer Muhammad Yousaf Head Constable No.1490 (PW6) handed over to him sealed parcel for onward transmission to the office of Chemical Examiner. This witness did not give any actual date whereas Muhammad Yousaf Moharrer Head Constable (PW6) in his statement narrated that on 16th of August, 2004, he handed over one parcel to Muhammad Aslam Constable No.1635 (PW1) for onward transmission to the office of Chemical Examiner. In the light of statement of these witnesses, when we examined the report of Chemical Examiner Exhibit-PE that speaks otherwise. As per report, Exhibit-PE, the sealed parcel was received in the office of Chemical Examiner on 13th of August, 2004. The above noted discrepancies in the statements of prosecution witnesses are material one which are not ignorable.
10. As per prosecution case, the search proceedings were conducted by Muhammad Riaz SI (PW4) and he also prepared complaint Exhibit-PC as well as the recovery memo Exhibit-PA. Record reveals that the sealed parcels contained monogram of "M.A" which does not correspond with the name of Investigating Officer and there is also no explanation to this effect which is fatal to the prosecution case. Reliance in this respect can be made to the case of "AKFITAR IQBAL versus The STATE" (2015 SCMR 291) in which Honourable Supreme Court held as under :- "2 .The learned counsel for the appellant has taken us through the statement made by the sole surviving attesting witness of the Memorandum of Recovery namely Mati-ur-Rehman (P.W.2) and has pointed out a number of factors available in his statement which had created some doubts in the alleged recovery effected from the appellant but the most important factor in that connection, which compounded all those doubts and raised a big question mark upon the veracity of the prosecution's case against the appellant, was that after allegedly recovering the contraband substance from the boot of the motorcar driven by the appellant the parcels of the recovered substance were sealed with a monogram reading as SJ and it had been disclosed by Mati-ur- Rehman (P.W.2) before the learned trial Court that the said monogram belonged to one Sameen Jan Inspector who was not even posted at the relevant Police Station at the time of time of the alleged recovery from the appellant and as a matter of fact at the said time the said Inspector was serving at a Police Station in Quetta. Matiur-Rehman (P.W.2) had not been able to advance any explanation whatsoever as to why the recovery officer namely Assistant Director Rehmat had not put his own monogram on the seals of the parcels prepared by him and as to why he had used the monogram of some other officer who was not even posted at the relevant Police Station at the relevant time "
11. We after examining the prosecution evidence advert to the defence plea of the appellant which he narrated in his statement under Section 342 of The Code of Criminal Procedure, 1898 in the following manner :- "I am innocent, in this case. Nothing was recovered from my possession. On 03.8.2004, at 6.00 a.m, I alongwith my wife and children were sleeping in my house, when police entered into my house, without permission by scaling over the wall. I was awakened and forced me to vacate this house on my refusal, they gave me severe beating before my wife and children and took me to the Police Station. They kept me there in the lock up for three days and tortured me and burnt my body with cigarette on 07.8.2004. Police gave me severe beating and blood profused from the different parts of my body. I became unconscious, when SHO, concerned observed my serious condition. He involved me in two narcotic cases and sent me in Jail, in injured condition, in order to save their skin. The Jail Superintendent accepted me in injured condition with the connivance of the SHO, concerned. After this, I was acquitted in case FIR No.198/04 dated 07.8.2004, U/S 9-C CNSA-1997, P.S. City Wazirabad by the Court of learned A.S.J, Wazirabad on 28.4.2005. This is also false, and concocted case against me. I am totally innocent in this case."
The appellant also produced in his defence, copy of judgment dated 28th of April, 2005 passed by learned Judge Special Court Control of Narcotic Substances, Wazirabad in case FIR No.198 dated 7th of August, 2004, whereby he was acquitted. He also placed on record an application filed by his wife before the learned Additional Sessions Judge, Wazirabad for registration of case and for his medical examination alongwith the report of Medical Officer Central Jail, Gujranwala as Exhibit-DB.
In the application, the same stance was reiterated as has been taken by the appellant in his statement under Section 342 of The Code of Criminal Procedure, 1898. He was medically examined by the Medical Officer Central Jail, Gujranwala, who found multiple injuries on his body which are of duration of about three to four weeks. Order dated 30th of September, 2004 passed by the learned Additional Sessions Judge, Wazirabad on the said application, has also been placed on the record wherein the matter was sent to the District Police Officer, Gujranwala with the direction to held an inquiry about the injuries of the accused and fix the responsibility and proceed with the matter in accordance with law.
12. We while putting both these versions in juxtaposition observe that the defence version is more plausible and it even finds support from the prosecution's own evidence. As already noted that Muhammad Ilyas Constable No.1582 (PW2) in his statement admitted that the appellant was arrested on 4/5th of August, 2004 and it is the stance of the appellant from the first day, that he was falsely implicated in the instant case and his defence version is fully supported by the defence evidence produced on the record.
13. There are serious discrepancies in the evidence of the material witnesses which cannot be ignored. Though there is a slight difference in the manner and standard of proof in the cases registered under The Control of Narcotic Substances Act, 1997 but the prosecution is always bound to discharge the initial onus of proof. It is well settled principle of law that in every criminal case, burden to prove the guilt of the accused always lies on the prosecution. Though in terms of Section 29 of The Control of Narcotic Substances Act, 1997, some depart to this general principle is introduced but even in presence of said provision of law, the prosecution cannot be absolved from its initial duty to discharge the onus of proof. The initial onus of proof always lies upon the prosecution and when once it is discharged, then the accused would be burdened to prove the contrary in terms of principles laid down in Section 29 of The Control of Narcotic Substances Act, 1997. The prosecution has badly failed to bring on record any cogent evidence to prove the guilt of the accused. The case of the prosecution is fraught with doubts and for earning the acquittal, the accused is not obliged to establish number of circumstances creating doubts but even a single circumstance, creating a reasonable doubt in the prudent mind is sufficient to extend the benefit of doubt to the accused. Guidance in this respect can be sought from "MUHAMMAD ASHRAF and others versus THE STATE and others" (PLD 2015 Lahore 1) and "MUHAMMAD ZAMAN versus THE STATE and others" (2014 SCMR 749).
14. For what has been discussed above, we are inclined to observe that the prosecution evidence is highly deficient and the conviction recorded by the learned Additional Sessions Judge/Judge Special Court Control of Narcotic Substances, Wazirabad in the circumstances is not sustainable.
We thus, while allowing the appeal, set aside the judgment dated 4th of April, 2006 and acquit the appellant from the charge against him. He is on bail and consequently his surety is discharged, accordingly.