SHAKEEL AHMED BALOCH, J.---This judgment disposes of Criminal Appeal No,74 of 2014 filed by the appellant Saeed Azam son of Khalon (mentioned in the trial Court proceedings and the impugned judgment as Gul Ahmed son of Ram Khan) against the judgment dated 5th March, 2014 (hereinafter as, "the impugned judgment") passed by the learned Special Judge Narcotic Substances Act, 1997 Quetta (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 9(c) of C.N.S. Act, 1997 and sentenced to suffer life imprisonment with fine of Rs,200,000 and in default thereof to further suffer S.I. For one year, with the benefit of section 382- B, Cr . P. C .
2. Facts of the case are that on 29th December, 2010 complainant Ayaz Haider, IP/SHO lodged F.I.R.
No,223/2010 at Police Station Civil Line Quetta under section 9(c) of Control of Narcotic Substances Act, 1997 against one Gul Ahmed son of Ram Khan stating therein that on 11th December, 2010 on the basis of spy information under the supervision of DSP/SDPO Civil Line Arbab Asif Kasi, conducted the checking of the vehicles at Hockey Chowk Quetta. At about 7-25 a.m. a suspected vehicle Suzuki Van bearing Registration No,CT-2654 white colour coming from Sariab side was stopped with the help of police employees. The person sitting on the driving seat disclosed his name as Gul Ahmed son of Ram Khan. On search of the Vehicle twenty two (22) bags containing white powder wrapped in plastic were recovered. On query, the accused failed to produce any permit or certificate of the same. On weighing the same at the spot, each packet contained 10 Kgs, total weight was 220 Kgs. The recovered powder and Suzuki vehicle were taken into police custody under section 550, Cr.P.C. And out of each packet small quantity of powder weighing 45 grams was separated for analysis and sealed in parcel No,
1. The remaining powder was sealed in parcel Nos.2 to 23, entry whereof was made in Roznamcha on dated 11th December, 2010. The parcel No,1 was sent to FSL for analysis. On receipt of analysis report of Chemical Examiner, on 29th December, 2012 the F.I.R. Was registered.
3. It appears from the record that after affecting the recovery, the person from whom the recovery was effected was let free by the police after obtaining his identity card and on receipt of FSL report in positive he was again arrested on 29th December, 2010. In pursuance of the above F.I.R., investigation was conducted by P.W.6 Muhammad Waris. During investigation, the I.O. Recorded the statements of witnesses under section 161, Cr.P.C. And on completion of investigation; the appellant was challaned before the trial Court.
4. At the trial, initially the prosecution produced six witnesses, whereafter the appellant was examined under section 342, Cr.P.C. The appellant also recorded his statement on oath under section 340(2), Cr.P.C. And produced Moulvi Mehmood as D.W.1 and Abdul Ghaffar as D.W.2. The appellant took the plea of his being substituted with the real culprit by the police.
5. On conclusion of trial, the appellant was convicted by the trial Court, vide judgment dated 9th April, 2012. The appellant assailed his conviction before this Court by filing Criminal Appeal No.104 of 2012. This Court vide judgment dated 27th September, 2012 remanded the matter to the trial Court with the directions to provide full opportunity to both the parties to produce evidence in support of their respective pleas and to decide the matter afresh after summoning the representative of Civil Lines Police Station as well as representative of NADRA to produce the personal bond and record of NADRA as well as to examine Arbab Muhammad Asif, DSP, in whose presence the recovery was effected. After remand, Arbab Muhammad Asif, DSP was examined before the trial Court as P.W.7, whereas the representative of NADRA namely Rozi Khan was examined as C.W.1, who produced NADRA record Exh.C/1-B, C.W.2 Ayaz Haider the representative of Civil Line Police Station produced personal bond of the appellant as Exh.C/2-B and C.W.3 Pervaiz ASI produced Chemical Expert Report of Chemical Examiner Government of Sindh Karachi as Exh.C/3-B. After concluding trial and hearing arguments, the trial Court vide impugned judgment dated 5th March, 2014 awarded conviction to the appellant as mentioned above.
6. Learned Counsel for the appellant stated that the appellant is Saeed Azam and he was substituted/replaced by the police by letting off the real culprit namely Gul Ahmed; that the samples were sent to FSL after delay of 19 days; that the analysis report Exh.C/2-B has not supported the prosecution case; that the prosecution has failed to connect the appellant with the recovered vehicle; that conviction awarded to the appellant by the trial Court is result of misreading and mis-appreciation of evidence available on record.
7. Learned Deputy Prosecutor-General while supporting the conviction stated that sufficient incriminating evidence is available on record to connect the appellant with the commission of offence and that the conviction awarded to the appellant is based on proper appreciation of evidence by the trial Court.
8. Heard the learned counsel for parties and perused the record. It is the case of prosecution that on 11th December, 2012 on spy information, the police officials under the supervision of P.W.7 were checking the vehicles at Hockey Chowk Quetta, when at about 7-25 a.m. a Suzuki Van bearing registration No,CT-2654 was intercepted. The person sitting in the vehicle disclosed his name as Gul Ahmed son of Ram Khan. On search, recovery of 220 Kgs of white powder was effected from the vehicle. The samples were drawn and sent for analysis to FSL, whereas the accused Gul Ahmed was let free by the Police on his personal bond after obtaining his Identity Card and the said accused Gul Ahmed was again arrested on 29th December, 2010 by the police after receiving positive report from the AL. The person challaned in the case, from the very initial stage of the trial, disclosed and specifically mentioned his name as Saeed Azam son of Haji Khalo by taking the plea that the police let off the real culprit and instead the appellant was substituted/replaced. If both the pleas i,e, raised by the prosecution and the other raised by the appellant are taken into consideration in juxtaposition, the plea taken by the appellant is having more weight, force, vigor and strength, whereas the stand taken by the prosecution seems to be weak, flimsy, fragile and not acceptable to a prudent mind. It has been specifically mentioned by the Police that at the time of alleged recovery the appellant disclosed his name as Gul Ahmed and he was let off by the Police on obtaining his personal surety. It is highly doubtful and under the circumstances of the case, even not believable and understandable, that the police after arresting an accused, from whose possession huge quantity of suspected contraband weighing 220 Kgs are recovered would be let free only after obtaining his personal surety bonds.
9. The stand so taken by the appellant has further been strengthened by the representative of NADRA, who appeared as C.W.1 and produced Exh.C/1-B, according to which the Computerized National Identity Card produced by the appellant at the trial and duly verified by the NADRA is genuine and legitimate as per NADRA database, which bears the photograph of the appellant as well as the National Identity Card numbers of his other family members.
10. Besides, the Investigating Officer of the case P.W.6 admitted the fact that no such documents were ever handed over to him proving the fact that the name of the accused is Gul Ahmed son of Ram Khan or ever he had taken into possession such kind of documents with regard to identification of the appellant. Furthermore, C.W.2 the representative of Police Station Civil Line Quetta produced the National Identity Card submitted by the person, who was driving the vehicle and the same has not been verified by the NADRA Authorities as genuine rather it was confirmed that the said card is forged one. Hence, there is sufficient confidence inspiring evidence to believe that the person arrested on the day of recovery and subsequently let free by the police is not the present appellant, who was subsequently arrested on 29th December, 2010 and challaned before the trial Court. There is no reason available for us to disbelieve the plea raised by the appellant Saeed Azam. The reappraisal of the evidence available on record reveals that it is a case of substitution of accused by the police, which is evident from the conduct of the police that they let off the accused after taking his personal surety without any lawful authority and jurisdiction in view of the fact that huge quantity of contraband was recovered from his possession. Letting free the real accused in the instant case smacks of mala fide of the police. The injury caused to the prosecution case is not curable. The plea of the police that the accused was let free for few days in order to confirm the recovered contraband as Heroin or otherwise does not appeal to a prudent mind.
11. The trial Court has miserably failed to properly assess and appreciate the evidence available on record. P.W.1 is the complainant of the case, who allegedly recovered the alleged contraband and took the same into police custody. P.W.1 also separated samples for analysis. P.W.1 in his cross- examination expressed his lack of knowledge about the date on which the samples were sent to FSL. He also express his ignorance about the date on which he took the samples for analysis.
Surprisingly, P.W.1, being complainant of the case stated in his cross examination that the parcel No,1 remained in Maalkhana w,e,f, 1 1 th December, 2010 to 29th December, 2010. At this juncture it is necessary to Mention here that the samples were sealed in Parcel No,1 and if the said parcel remained in Maalkhana from the date of its recovery till 29th December, 2010 then it appears that the samples were not sent for analysis well in time and the same remained in police custody for more than 19 days. The Investigating Officer admitted the fact that neither the samples were drawn in his presence nor the same were sent to FSL by him, nor parcels were prepared in his presence and even he did not receive any report from FSL. Perusal of FSL report Exh. P/6-A would disclose the fact that the samples were received to them on 29th December, 2010. The prosecution has failed to tender any plausible explanation for delay in sending the samples for analysis. At this juncture, it is necessary to mention here that after remand of the case by this Court the samples were sent to a Laboratory of Government of Sindh, who furnished their report as Exh.C/3-B by mentioning that due to non-facility of requisite equipments they are unable to examine the said material.
12. Record reflects that the prosecution had prior information in respect of smuggling of narcotics and the prosecution could have made proper arrangements for associating an independent witness to strengthen the prosecution case, but despite such opportunity it seems that even no efforts were made by the prosecution to such extent. Though section 25 of Control of Narcotic Substances Act, 1997 has clearly excluded application of section 103, Cr.P.C. To cases under Control of Narcotic Substances Act, 1997, but there must he plausible explanation on the part of Investigating Officer showing his inability for not complying with such provisions of law, when otherwise the appellant has taken the plea that he was substituted by the police and the real culprit was set at liberty. Hence in the circumstances false implication of the appellant cannot be ruled out of consideration. Inasmuch as, the own prosecution witnesses i,e, P.W.2 and P.W.4 were declared hostile as they specifically denied the fact that they were the members of raiding party, which recovered the contraband from the possession of the appellant and even they did not sign the recovery memos. Prepared by the complainant or Investigating Officers of the case.
13.#TS## As far as the ownership of the vehicle Suzuki Van bearing Registration No,CT-2654 white colour, is concerned the prosecution has also failed to collect any material in this behalf. The prosecution has also failed to place on record the registration documents of the same. There is nothing on record that the said vehicle is owned by the appellant or that he was driving the same as driver. The prosecution has absolutely failed to establish the connection of the appellant with the vehicle; therefore, mere words of the prosecution are not enough to connect the appellant with the said vehicle, from which the alleged huge quantity of contraband was recovered.
14. It has been established that the prosecution has failed to bring home the charge against the appellant beyond any shadow of doubt. It has been established through confidence inspiring record that the real accused was let free by the complainant and instead the appellant was subsequently implicated in the instant case. P.W.6 being the Investigating Officer of the case has admitted that neither the samples were separated in his presence nor he received the analysis report from the FSL. The entire case of the prosecution is defective, doubtful and full of contradictions and it is also not understandable that on what basis the appellant was awarded conviction by the learned trial Court. The trial Court has failed to appreciate that the witnesses of the prosecution have not supported the prosecution version and they have denied to be the members of the raiding party and that the parcels were not sealed or prepared in their presence.
The judgment of the trial Court suffers from misappreciation, non-reading and misreading of the evidence available on record and the plea raised by the appellant during trial was not properly appreciated by the trial Court. According to settled principles of law, whenever a doubt is created, the benefit of same has to be given to the accused not as a matter of grace but as a matter of right. Despite the fact that sufficient doubts were created in the prosecution cases, the benefit of the same was not extended in favor of appellant by the trial Court.
For the above reasons, the appeal is accepted. The impugned judgment dated 5th March, 2014 passed by the learned Special Judge Narcotic Substances Act, 1997 Quetta is set aside and the appellant Saeed Azam son of Khalon (mentioned in the impugned judgment as Gul Ahmed Son of Ram Khan) is acquitted of the charge under section 9(c) of the C.N.S. Act, 1997. The appellant being in custody is ordered to be released forthwith, if not required in any other case.
Above are the reasons of our short order dated 8th July, 2014.