Aalia Neelum, J.- Muhammad Boota son of Muhammad Saddique, Caste Jat Gill, resident of Kallay Wala, District Gujranwala, appellant was involved in case F.I.R. No.227 of 2008, dated 31.05.2008, offence under Section 9 (C) of the Control of Narcotic Substances Act, 1997, registered at Police Station Tatley Aali, District Gujranwala and was tried by the learned Additional Sessions Judge/Judge Special Court (Control of Narcotic Substances Act, 1997), Gujranwala. The learned trial court seized with the matter in terms of judgment dated 12.06.2009 convicted the appellant under Section 9 (C) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo imprisonment for life with the direction to pay Rs.30,000/-as fine and in case of default thereof, further undergo Simple Imprisonment for one year and four months. The appellant has assailed his conviction through filing the instant appeal.
2. The prosecution story as alleged in the F.I.R. (Ex.PA/1) lodged on the complaint (Ex.PA) of Riaz Hussain Haideri, Inspector Anti Organized Crime (PW-4) is that on 30.05.2008 at about 11:55 p.m, he along with Muhammad Abbas 1966/HC, Muhammad Asif 139/HC, Ejaz Ahmad 189/C (PW-5), Muhammad Nawaz 550/C, Sagheer Ahmad 2070/C, Umer Hayat 690/C and Shaukat Ali 2278/C was present in the area of Chak Majju Chowk Tatley Aali, Gujranwala and he received spy information that one person with huge quantity of `Bhikku" (P-1) is available at Kullay Wala Bus Stop and he can be arrested, if a raid be conducted. Later on, the raiding party reached at Kullay Wala Bus Stop and had seen one person having sack on his shoulder. On suspicion, the appellant was stopped, who subsequently disclosed his name as Muhammad Boota. On search of sack, the 'Bhikku' (P-1) was recovered, which was taken into possession through recovery memo (Ex.PC), which was found to be 40-kilograms. Out of the recovered `Bhikku" (P-1), the complainant separated 250-grams for chemical analysis and he prepared two sealed parcels one of case property, whereas the other one for sample. The complainant drafted complaint (Ex.PA) and sent the same through Shaukat Ali 2278/C to the Police Station for registration of the formal FIR.
3. Thereafter the investigation was conducted by Nasir Khan, S.I. (PW-3), who on receipt of copy of F.I.R., reached at the place of recovery, inspected the same, made rough site plan (Ex.PB) of the place of recovery and recorded the statements of the prosecution witnesses under Section 161 Cr.P.C. On reaching the police station, the Investigating Officer sent the accused to judicial lock up.
Thereafter the Investigating Officer recorded statements of Muhammad Tufail, Moharrar regarding sending of parcel and that of Abdul Qayyum, constable under sections 161 Cr.P.C. Regarding depositing of sample parcel in the office of Chemical Examiner, Lahore. Having found the accused guilty, the Investigating Officer prepared report under Section 173 Cr.P.C., while placing his name in Column No.3 of the Challan and sent the same to the court of competent jurisdiction.
4. The learned trial court formally charge sheeted the appellant on 27.10.2008, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as six witnesses. Riaz Hussain Haideri, Inspector Anti Organized Crime, Hafizabad (PW-4) is the complainant of the case, whereas, Nasir Khan, S.I (PW-3) is the Investigating Officer of the case, Muhammad Yaqub 2184/HC (PW-1) deposed that he performed his duty as Duty Officer and received complaint (Ex.PA) sent by the complainant through Shaukat Ali 2278/C and on the basis of which he drafted formal F.I.R. (Ex.PA/1), Muhammad Tufail (PW2) deposed that on 31.5.2008 the complainant handed over two sealed parcels containing Charas to him for keeping the same in Malkhana for safe custody and on 27.6.2008 he handed over sealed parcel of sample to Abdul Qayyum1589/C for its onward transmission in the office of Chemical Examiner, Lahore. Ejaz Ahmad 189/C (PW-5) is the witness of the recovery of Bhikku, weighing (40) kilogram and Abdul Qayyum 1589/C (PW-6) has stated that Muhammad Tufail Moharrar/HC handed over to him one sealed parcel containing Bhikku for its onward transmission to the Office of Chemical Examiner, Lahore.
5. On 23.04.2009, the learned Deputy District Public Prosecutor gave up PW Muhammad Asif 139/HC and closed the prosecution evidence on 18.06.2009 after tendering the report of Chemical Examiner (Ex.PD).
6. The appellant was also examined under Section 342 Cr.P.C, wherein he opted not to lead defence evidence and not to appear as his own witness in terms of Section 340 (2) Cr.P.C in disproof of allegations levelled against him and while replying to a question that why this case against him and why the PWs have deposed against him, the appellant made the following deposition:- "I am innocent and have falsely been involved in this case. On 29.05.2008 at about 11.00 p.m an altercation took place between me and Nasir Khan, SI while I was deboarded from the bus coming from Faisalabad"
7. 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.
8. At the very outset, 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 and the prosecution has failed to prove the safe custody of the "Bhikku" and lastly prayed that he be acquitted from the charge being falsely implicated in this case.
9. On the other hand, learned Deputy District Public Prosecutor 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 six witnesses beyond any shadow of doubt.
10. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy District Public Prosecutor and have minutely perused the record available on the file.
11. After a careful scrutiny of the materials on record, we come to the conclusion that the prosecution has not established safe custody of recovered substance nor the prosecution had produced Shoukat Ali, Constable as witness to establish that Riaz Hussain Haideri, Inspector (PW4) handed over to him the recovered substance and accused were sent to the police station. The complainant Riaz Hussain Haideri, Inspector (PW-4) in his court statement has deposed that he sent both the parcels and accused to the police station. Whereas Muhammad Tufail/HC (PW-2) deposed that "on 31.05.2008, I was posted as 'Moharrar' in P.S Tatley Aali, District Gujranwala. On the same day, Riaz Haideri, Inspector handed over to me two sealed parcels said to contain 'Charas' for keeping the same in "Malkhana. On 27.06.2009, I handed over sealed parcel of sample to Abdul Qayyum 1589/C for its onward transmission in the Office of Chemical Examiner, Lahore. Contrary to above depositions, Abdul Qayyum Constable (PW-6) deposed that "on 27.06.2008 Muhammad Tufail 'Moharrar' handed over to him sealed parcel said to contain "Bhikku". In the trial, it was necessary for the prosecution to establish by cogent evidence that the alleged "Bhikku" (poppy straw) weighing 40-kilograms seized from the possession of the accused was kept in safe custody.
There is no explanation for this failure to establish safe custody of recovered "Bhikku" (Poppy straw).
From time of the seizure at 11:30 p.m on 30.05.2008, till its deposit in the 'Malkhana' on the same day, it is not established that the samples and the recovered substance were kept in the "Malkhana".
Mere oral evidence of the prosecution witnesses i.e Riaz Hussain Haideri, Inspector (PW-4) and Ejaz Ahmad, Constable (PW-5) as to the recovery of "Bhikku" (poppy straw) weighing 40-kilograms does not discharge the heavy burden of responsibility, which lies on the prosecution. Practically the prosecution took upon themselves the risk of losing the case. In the considered opinion of this Court, the aforesaid inconsistencies and contradictions considered cumulatively do lead to an irresistible inference that the prosecution has not been able to prove safe custody of the recovered substance through material and cogent evidence. Another attendant circumstance rightly relied upon by the learned counsel for the appellant that the samples in the present case have been tampered with, is the variation that has been found in the weight of the alleged recovered substance that was allegedly seized by the complainant-Riaz Hussain Haideri, Inspector (PW-4).
During testimonies of Riaz Hussain Haideri, Inspector (PW-4) and Ejaz Ahmad, Constable (PW-5) learned trial court observed that, "(court observation) case property brought by Muhammad Asif Constable (P-1) is lying open in jute bag and is not sealed in its present condition. However, cloth tag is available on the jute bag and on the cloth bag. Case FIR No. 227/08, dated 30-05-2008, P.S Tatlay Aali weight 39 kilograms and 750 grams is written. Let statement of Muhammad Asif be recorded separately. It was weighed again and its weight was 21 kilograms with jute bag." The complainant-Riaz Hussain Haideri, Inspector (PW-4) and Ejaz Ahamad, Constable (PW-5) admitted during cross-examination that the case property is not bearing any seal; case property present in court is ever not sealed in a white colour cloth; that case property is lying in an open jute bag covered by Nylon Tora. The above said fact and variation in weight of alleged case property, in the considered opinion of this Court, in the factual matrix of the present case as discussed above, the said facts cannot be brushed aside lightly. It is also to be taken note of that there is also a lacuna in the link evidence produced by the prosecution to prove that the recovered substance 'Bhikku'
(Poppy Straw) was deposited in the "Malkhana" and the same was not tempered with. It has been noted that Riaz Hussian Haideri, Inspector (PW-4) categorically deposed that, he sent both the parcels and accused present in the court to the police station whereas Muhammad Tufail, H.C (PW-2) deposed categorically that Riaz Hussain Haideri, Inspector handed over to him two sealed parcels said to contain Charas. The alleged recovered substance shrouded in mystery and remained unexplained as to what was recovered from the possession of the appellant. In other words, there is strong doubt as to whether the sample analyzed by the Chemical Examiner was taken out of same material that allegedly recovered from the accused at the time of raid. The said discrepancy does create a reasonable doubt with respect to the link evidence produced on behalf of the prosecutor and in such circumstances the non mentioning of name of the person who weighed the poppy straw also gains importance. On the other hand Riaz Hussain Haideri, Inspector (PW-4) deposed during cross-examination that the poppy straw was weighed in a village shop and he did not remember the name of person who weighed the poppy straw, whereas this fact has not been mentioned by him in the complaint (Ex.PA) and recovery memo (Ex.PC) that the alleged recovered substance was got weighed in the village shop as well as the name of the person was not mentioned, who weighed it. It reveals that the alleged contraband was not weighed at the spot.
The complainant Riaz Hussain Haideri, Inspector (PW-4) despite having said that he weighed the recovered substance and Ejaz Ahmad, Constable (PW-5) deposed during examination in-chief that he had signed the seizure memo (Ex.PC), PW-4 and PW-5 did not come up with any explanation for this vital contradiction. The conduct of the PW-4 and PW-5 in the light of numerous contradictions describe above, there testimony fails to inspire confidence.
12. 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 convict person. 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 Muhammad Boota is ordered to be acquitted of the charge in case FIR No.227 of 2008, dated 31.05.2008, offence under section 9(C) of the Control of Narcotic Substances Act, 1997, registered at Police Station Tatley Aali, District Gujranwala and he is directed to be released forthwith from the Jail, if not required in any other criminal case.