RAJA SHAHID MEHMOOD ABBASI, J:- The instant appeal is directed against the conviction and sentence of the appellant Muhammad Riaz, which was passed on 28th of April, 2009 by Additional District & Sessions Judge/ Special Judge Narcotics, Sheikhupura in case FIR No. 912 dated 07-11- 2007, offence under Section 9 (c) of The Control of Narcotic Substances Act, 1997, Police Station Ferozwala, District Sheikhupura; whereby the appellant was convicted and sentenced to imprisonment for life with fine of Rs.1,00,000/- and in default whereof he was further held liable to undergo one year S.I. Benefit of Section 382-B of The Criminal Procedure Code, 1898 was also extended to him.
2. Precisely, the facts necessitating for adjudication of instant appeal are that according to Arshad Latif, Inspector/Incharge, (PW4), Police Station Ferozwala, got recorded the FIR (Ex.PA), alleging therein that on 07-11-2007 at about 11:30 PM, he received a spy information that a truck bearing No. MNG-4557 carrying huge quantity of narcotics will pass through Saim Nala Wandala Dial Shah and it will also deliver the charas to a customer. On this information, (PW4) alongwith other officials, in two official vehicles reached at Saim Nala Wandala Dial Shah and found the abovesaid truck and a kia Classic silver coloured car bearing registration No. FDV/5861 parked there. Muhammad Riaz, Syed Hanif Shah and Muhammad Akbar were taking the packets of the truck out of the roof of the truck driver cabin and Hameed Ahmad s/o Rehmat Ali was putting those under the seat of Car bearing No. FDV/5861. The names of abovementioned persons were disclosed after their apprehension. He further stated that 10 packets of charas weighing 10 Kg were recovered from the abovementioned car which belonged to one Hameed Ullah. 200 packets of Charas of four varieties were recovered from the cabin of the truck, their weight was five maunds, 32 KGs and combined weight of recovered Charas was six maunds & 02 Kg. Two packets of opium weighing 01 Kg were also recovered from behind the seat of truck driver. On physical search Rs.4000/- cash recovered from Riaz, Rs.7000/- from Hameed, Rs.4500/- from Hanif Shah and Rs.3500/- from the pocket of Akbar (total cash Rs.19000/- (P4). Arshad Latif Inspector (PW4) further alleged that ten grams of Charas and Opium were recovered from each packet for chemical analysis. Samples and recovered narcotics, car, truck and recovered cash were taken into possession as case property.
On the basis of above facts the crime report No. 912 dated 07-11-2007, offence under Section 9 (c) of The Control of Narcotic Substances Act, 1997 was registered at Police Station Ferozwala, District Sheikhupura.
3. After registration of case, formal investigation was started and on conclusion of the same, report under Section 173 of The Criminal Procedure Code, 1898 was submitted before the learned trial Court and the appellant/accused was sent to face trial.
4. On receipt of report under Section 173 of The Criminal Procedure Code, 1898, the learned Additional Sessions Judge/Special Judge Narcotics, Sheikhupura framed the charge against the appellants to which they pleaded not guilty and claimed trial.
5. In order to prove the guilt of the accused, the prosecution examined as many as four witnesses.
Muhammad Afzal 1010/HC appeared as (PW1), who on 07-11-2007, chalked out the formal FIR (Ex.PA/1). He further deposed that Arshad Latif (PW4) handedover to him 210 sealed parcels said to contain samples of Charas and two parcels of opium which he handedover the said parcels to Munawar Hussain, Constable (PW2) for their onward transmission to the office of chemical examiner, Lahore. Munawar Hussain, constable appeared as PW2, who deposed that on 26-11-2007, Muhammad Afzal, Moharrer (PW1) handedover to him 210 sealed parcels said to contain samples of Charas and two sealed parcel said to contain sample of opium and which he delivered these articles to the office of Chemical Examiner. Abdul Razzaq A.S.I. Eye/recovery witness was examined as (PW3), who narrated the details of the recovery proceedings as well as preparation of recovery memos (Ex.PB); he further deposed that Muhammad Riaz, Muhammad Akbar and Muhammad Hanif accused were placing packets of charas in car. Arshad Latif, Inspector being the complainant and Investigating Officer was examined as (PW4). He also narrated the details of recovery proceedings as well as preparation of recovery memos (Ex.PB) and also prepared site plan of place of recovery (Ex.PC); he dispatched appellant to the police station; he recorded the statements of Abdul Razzaq and Ghulam Dastgir ASI's under Section 161 of The Criminal Procedure Code, 1898; completed the investigation and remanded the appellant to the judicial lockup.
The report of Punjab Forensic Science Agency, Lahore was tendered as (Ex.PD) & (Ex.PE) by the learned Additional District Public Prosecutor and closed the prosecution evidence.
6. After completion of evidence on behalf of the prosecution, the statement of appellant/accused was recorded under Section 342 of The Criminal Procedure Code, 1898. The appellant pleaded his innocence and submitted that recovery was foisted upon him and he deposed in the following terms: "I am innocent. I have been made scapegoat in this case. I have been implicated falsely in this case because I am not influential person. I am poor man and the only bread winner of my family and have six children PWs have deposed against me because they are police officials and subordinate to the Inspector. Furthermore, many respectables appeared before the I.O, who was also according to prosecution case incharge of raiding party, in support of my version of innocence but he did not record the version of the respectables and with malafide intention and to show his efficiency in the police department falsely involved me in this case and open the gate of hell for me because I am poorest man. I am not convicted in any case."
He did not opt to appear under Section 340(2) of The Criminal Procedure Code, 1898 and also did not produce any evidence in his defence.
7. After completion of evidence from both the sides, the learned trial Court, after holding the appellant Muhammad Riaz guilty of the offence and convicted and sentenced him as mentioned in preceding Para No.1 above.
8. Learned counsel for the petitioner contends that the prosecution has badly failed to prove the case against the appellant; that there are serious contradictions in the statement of prosecution witnesses which are sufficient to negate the prosecution case. That narcotics were recovered from the cabin of truck and the same was not in exclusive possession of the present appellant; that on the same set of evidence and on the same allegations, two co-accused, namely Akbar and Hanif Shah were acquitted whereby the appellant was convicted contrary to the principles laid down by the Superior Courts. Further maintained that there is no iota of evidence on the file that appellant/accused was either the owner or driver of the truck from which huge quantity of charas was recovered. That the conviction of the appellant is not sustainable in the eyes of law.
9. On the other hand, learned DPG has opposed the contentions of the learned counsel with vehemence and contended that no ill will or animosity could be brought on record by the defence in order to rebut the prosecution evidence. Further contended that overwhelming incriminating evidence has been rightly believed by the trial Court. Further maintained that minor discrepancies, if any, will not diminish the worth of evidence produced by the prosecution. Further maintained that being driver, he is solely responsible for the possession of the narcotics.
10. We have heard the learned counsel for the appellant as well as learned DPG and also perused the record.
11. It is prosecution's own case that, on 07-11-2007, after receiving spy information, when the raiding party, headed by Muhammad Arshad Latif, Inspector (PW4), reached at Saim Nala, Wandala Dial Shah, accused persons namely Muhammad Riaz, Muhammad Akbar and Muhammad Hanif Shah were taking the packets of charas out of the roof of truck's driver cabin and Hameed Ahmad s/o Rehmat Ali, accused, was putting those under the seat of car, bearing No. FDV/5861, found 10 packets of charas weighing 10 Kgs were found from the car No. FDV/5861, belonged to Hameed Ullah whereas 200 packets of charas of four varieties were recovered from truck's cabin, their weight was found to be 05 maunds, 32 Kgs and combined weight of recovered charas was found to be 06 maunds, 2 Kgs. Furthermore two packets of opium weighing 1 Kg were also recovered from behind the seat of truck driver. 10 Grams of charas was separated from each packet of charas and 10 grams of opium was separated from each packet of opium.
12. Hameed Ahmad, co-accused was found innocent by the police. Whereby co-accused Akbar and Hanif Shah were acquitted by the learned trial Court through impugned judgment as, during the investigation, Muhammad Arshad Latif Inspector, I.O of the case found them innocent.
13. The prosecution, in order to prove the recovery against the appellant examined four witnesses.
Out of these witnesses, the statement of Abdul Razzaq, ASI (PW3) and Muhammad Arshad Latif, Inspector (PW4) are of significance important as both are directly related to the recovery proceedings. Other two witnesses Muhammad Afzal, 1010/HC (PW1) and Munawar Hussain, (PW2) are formal in nature.
14. Abdul Razzaq ASI, recovery witness while appearing as (PW3) deposed that, "accused persons namely Muhammad Riaz, Muhammad Akbar and Muhammad Hanif present in the Court were placing packets of charas in the abovesaid car. Then we reached there and arrested accused"
Similarly, the relevant portion of Muhammad Arshad Latif Inspector (PW4) is as under: "on this spy information when we reached at Saim Nala Wandala Dial Shah the above said truck and Kia Class silver color car bearing registration No. FDY/5861 were parked there and accused were loading packets of charas into the car after brining out those packets from the cabin of the truck. The accused were apprehended with the help of other members of raiding party by encircling them who disclosed their name as Riaz, Hanif, Akbar present in the Court and Hameed (since not summoned)"
15. From the above mentioned statement of PWs, it is clear that all the four accused, including the present appellant were loading packets of charas into the car after bringing out those packets from the truck's cabin. Even a single word was not alleged by the aforementioned PWs, in their examination-in-chief, either any of the accused was a driver, cleaner, helper or owner of the narcotics. Furthermore, no documentary evidence was produced to prove the ownership of the truck. The I.O could not procure the license of the appellant Muhammad Riaz, in order to prove, that he was the driver of the vehicle/truck from where huge quantity of charas was recovered. It is to be noticed that Akbar and Hanif Shah was given the benefit of doubt, primarily, for the reasons, that they were found to be labourers, but if entire evidence of aforementioned PWs is scrutinized, with care and caution, it becomes, clear then crystal, that the case of the present appellant is not at all distinguishable from the other acquitted co-accused as same role is attributed to all the three co- accused. On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Akbar and Hanif Shah could be acquitted and on the same assertion of the witnesses, present appellant Muhammad Riaz could be convicted. It is well settled principle of law that on same set of evidence the Courts are not justified to acquit once set of accused and convict other when the allegations are same. Reliance in this regard is placed on "UMER FAROOQ vs. THE STATE" (2006 SCMR 1605).
16. It is also well established law that if an ocular testimony of a witness is to be disbelieved against the particular set of accused and is to be believed another accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by Superior Courts. Reliance can safely be placed on the case of "SARFRAZ alias SAPPI and two others vs. THE STATE" (2000 SCMR 1758) & "IFTIKHAR HUSSAIN and ANOTHER vs. THE STATE" (PLJ 2004 SC 552). Relevant portion from judgment supra is reproduced herein:- "it is true that principle of falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Court for safe administrative of justice, follow the principle of appraisal of evidence i.e. Sifting of grain out of chaff i.e. If an ocular testimony of a witness against a particular set of accused and is to be believed against another set of accused facing the same trial, then the court must search for independent corroboration of material particulars as has been held in number of cases decided by the Superior Courts"
In the case in hand no further evidence has been led by the prosecution to make the appellant responsible for the exclusive possession of the alleged narcotics or was the driver of the truck. The stance of the appellant Muhammad Riaz, from the very beginning, was that he had been made scapegoat in this case, therefore, the prosecution was under legal obligation to produce substantial evidence, at least driving license, on the record in order to prove, that the appellant was the driver of the truck. Due to this lacuna in the prosecution evidence the appellant can never be held responsible with the exclusive possession of the narcotics, therefore, conviction & sentenced awarded to the appellant cannot be sustained. As the prosecution could not prove through cogent evidence that the appellant was either a driver or the owner of the truck, therefore, it is not proved that he was incharge of the truck and it was under his control and possession whatever articles lying in it. Therefore, the appellant cannot be held responsible for the exclusive possession of the narcotics and deserves the same treatment as the acquitted co-accused was given. The prosecution, even, has not filed appeal against acquittal against Akbar and Hanif Shah (acquitted co-accused). 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 the same to the accused. Guidance in this respect can be sought from "MUHAMMAD ZAMAN versus THE STATE and others" (2014 SCMR 749) and "MUHAMMAD ASHRAF and others versus THE STATE and others" (PLD 2015 Lahore 1).
17. It is also observed that the alleged narcotics was concealed in the cabin of the truck and behind the seat of truck driver, it was not lying open but, surprisingly the truck from which huge quantity of narcotics were recovered, was not produced in the Court which is also fatal to the prosecution and was a serious lapse on the part of the prosecution.
18. So far as delay in sending the samples to the office of chemical examiner is concerned, Munawar Hussain (PW2), stated in his examination-in-chief that Moharrer, Muhammad Afzal, handed-over to him 210 sealed parcels on 26-11-2007. Though Rules 4 & 5 of The Control of Narcotic Substances (Government Analysts) Rules, 2001 are not mandatory but directory, however, in view of above noted legal infirmities, this unexplained delay also adds further dent in the prosecution case.
19. 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/Special Judge Narcotics, Sheikhupura in the circumstances is not sustainable. We thus while allowing the appeal, set aside the judgment dated 28th of April, 2009 and acquit the appellant Muhammad Riaz from the charge against him; appellant is in jail; he be released forthwith if not required in any other case.