Aalia Neelum, J.- Salamat Ali son of Muhammad Sardar, Caste Sheikh, resident of House No.207, Chiragh Shah, District Kasur, the appellant was involved in case F.I.R. No. 119-2011 dated 11.04.2011, offence under Section 9 (c) of the Control of Narcotic Substances Act, 1997, registered at Police Station, Kanganpur, Kasur and was tried by the learned Additional Sessions Judge, Kasur. The learned trial court seized with the matter in terms of judgment dated 13.03.2014 convicted the appellant under Section 9 (c) of the Control of Narcotic Substances Act, 1997 and sentenced to undergo seven years R.I. With the direction to pay Rs.50,000/-as fine and in case of default thereof, further undergo Simple Imprisonment for three months. The benefit of Section 382-B, Cr.P.C was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial court, Salamat Ali-the appellant assailed his conviction through filing of the instant appeal.
3. The prosecution story as alleged in the F.I.R (Exh.PE/1) lodged on the complaint (Ex.PE) of Malik Tariq Mehmood Awan, S.R RO-326-2.IC (since died) is that on 10.04.2011, Amir Saeed, Senior Rangers Inspector of Wing-07 received a secret information that drugs would be transported from Kanganpur to Mandi Ahmad Abad Road through check Post at Head Sattoki whereupon, a raiding party under the supervision of Malik Tariq Mehmood Awan S.R RO-326-2.IC (since died) comprised of Amir Saeed, Inspector R.I. 3430, Qaisar Javed, Hawaldar R.21042, Muhammad Nawaz, Naik R.26884, Muhammad Ayub, Lance Naik R.29641, Muhammad Asif, Constable R.44908 and Noor Muhammad, Constable R.44175 and police party laid a barricade and at about 5:00 p.m., a Suzuki Mehran bearing registration No.LZ-5525 was going from Kanganpur to Mandi Ahmad Abad, which was stopped on suspicion. During search, three packets of heroin were recovered from the secret cavities of the doors of said car along with 23 bundles each having denomination of 500-notes of Indian currency valuing Rs.11,50,000/-. The recovered heroin was weighed as 3-Kilograms. On asking, the accused disclosed his name as Salamat Ali son of Muhammad Sardar, Caste Sheikh, resident of House No.207, Mushkianwali Basti Chiragh Shah, District Kasur. Thereafter recovered heroin, car, Indian currency and mobile phone Samsung along with two sims (Warid & Zong) were taken into possession vide recovery memos (Ex.PA) to (Ex.PD). The accused wanted to smuggle the recovered substance as well as currency to India. Out of the recovered substance, 100 grams heroin from each packet was separated for chemical analysis. The complainant-Malik Tariq Mehmood Awan, HYPERLINK http://SR.RO SR.RO.326 2.IC (since died) drafted complaint (Ex.PE) and sent the same to the police station through Qaisar Javed, Hawaldar (PW-7) for registration of formal F.I.R.
4. Thereafter investigation was entrusted to Shahadat Ali, S.I. (PW-3), who visited the place of occurrence and prepared un-scaled site plan (Ex.PF). Having found the appellant guilty, the S.H.O prepared report under Section 173 Cr.P.C and sent the same to the court.
5. The learned trial court formally charge sheeted the appellant on 12.12.2011, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as seven witnesses. Malik Tariq Mehmood Awan, HYPERLINK http://SR.RO SR.RO.326 2.IC (since died) complainant as per F.I.R, Shahadat Ali, S.I. (PW-3) Investigating Officer, Muratab Ali, A.S.I. (PW-2) who chalked out formal F.I.R. Aamir Sohail, Inspector (PW-1) who is recovery witness. Muhammad Afzal, Hawaldar (PW-4) deposed that on the same day, officials of Ranger handed over to him Rs.11,50,000/-and heroin which was deposited by him (PW4) in the warehouse. Navid Ahmad (PW- 5) deposed that on the same day, he received a parcel of 100 grams heroin and deposited the same in the office of Chemical Examiner. Muhammad Ayub, Lance Naik (PW-6) deposed that he received a secret information that narcotic are to be smuggled, whereas Qaise Javed, Hawaldar (PW-7) deposed that he identified the handwriting and sign of Malik Tariq Javed (since died) and recovery memos (Ex.PA to Ex.PD) and complaint (Ex.PE) bear the signatures of Malik Tariq Mehmood (since died) and he (PW-7) identified them.
6. On 15.12.2012, the learned Assistant District Public Prosecutor gave up Muhammad Nawaz-Naik being un-necessary and closed the prosecution evidence on 01.02.2014 after tendering the report of Chemical Examiner as (Ex.PF).
7. The appellant was also examined under Section 342, Cr.P.C. Wherein he opted not to lead defence evidence but also refused to appear as his own witness in terms of Section 340(2) Cr.P.C.
In disproof of allegations levelled against him in the prosecution evidence and while replying to a question that why this case was against him and why the PWs have deposed against him, the appellant made the following deposition:- "I am totally innocent. No witness of recovery has been produced. The statement of PW-1 is of no value at all and even not considerable as not cited in the list of witnesses as recovery on the FIR of heroin and his statement can not be read as part of the evidence. The vehicle i.e. The car has not been produced in this honourable court to corroborate the recovery proceedings. No public witness has been produced. The complainant let off Jabbar son of Muhammad Ashraf alias Bhola Jutt and implicated him qua under hand dealing. Nothing was recovered from him. I have been made a scapegoat and languishing in jail for my no fault. Even otherwise, the chemical report shows the contents of one sealed packet whereas the alleged recovery was of three packets containing 1-kg each. I beg mercy and acquittal as being totally innocent."
8. 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.
9. Heard. Record perused.
10. The prosecution case relates to an occurrence dated 10.04.2011 at 17:00 hours which has reported on the basis of the written complaint (Ex.PE) of Malik Tariq Mehmood Awan, HYPERLINK http://SR.RO SR.RO.326 2.IC (since died). In the instant case, admittedly, the F.I.R (Ex.PE/1) was lodged after 23:13 hours of the commission of offence. There is ample evidence on record to show that the F.I.R (Ex.PE/1) was lodged with delay of 23:15 hours. The prosecution has given no explanation for delay in lodging of the First Information Report. It has to be noted that Malik Tariq Mehmood Awan, S.R RO-326-2.IC died during proceedings of the case, that would leave the prosecution to rely on the testimony of eyewitnesses. The prosecution produced Inspector, Aamir Sohail (PW-1) and Lance Naik, Muhammad Ayub (PW-6) to prove arrest of the accused-Salamat Ali and seizure of 03 packets of heroin from the Suzuki Car LZ-5525 having white colour on 10.04.2011 at 17:00. Inspector, Aamir Sohail (PW1) admitted that on 10.04.2011 at 5:00 p.m. The accused was apprehended by Malik Tariq Mehmood Awan (since died). The contention of the learned Law Officer that there is no delay in lodging the F.I.R as the F.I.R was lodged immediately on receiving the complaint (Ex.PE) is misconceived. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Undoubtedly, the promptly lodged F.I.R is an assurance regarding truth of the informer's version. Whereas in the instant case, the complainant drafted complaint (Ex.PE) on 11.04.2011 regarding the commission of offence which took place on 10.04.2011. This creates doubt about the commission of offence. Lance Naik, Muhammad Ayub (PW-6) was declared hostile by the learned Assistant District Public Prosecutor. He (PW-6) has denied that his statement was recorded by the Investigating Officer and he also denied his signatures on Ex.PA, Ex.PB, Ex.PC and Ex.PD. On the other hand, to prove deposit of parcel of sample and case property, the prosecution produced Muhammad Afzal, Hawaldar (PW-4). He (PW-4) stated that on 09.05.2011, officials of Ranger handed over to him Rs.11,50,000/-and heroin which he deposited in the warehouse. He (PW-4) was declared hostile and this witness was cross-examined.
During cross-examination, he deposed that "I myself went to the warehouse for deposit of Rs.11,50,000/- and heroin." He (PW-4) was not suggested that he was suppressing real facts.
However, he has denied that his statement was recorded by the Investigating Officer and denied suggestion that he handed over the parcel of currency and heroin to Naik Navid. The prosecution has been unable to prove the manner of seizing of the samples. The seized articles were not handed over to Investigating Officer. Evidence of Naik Navid Ahmad reveals that he received a parcel of 100 grams heroin on 15.04.2011 and deposited the same in the office of Chemical Examiner.
However, he (PW-5) deposed during cross-examination that his statement under Section 161 Cr.P.C was recorded by the Investigating Officer, Shahadat Ali, S.I. On 13.08.2013. Shahadat Ali, S.I. Had recorded the witness after long gap and has not offered any explanation. The unexplained and unjustified long delay on the part of Investigating Officer in recording statement of material witness during investigation in the case of narcotics substance renders the evidence of such witness unreliable. No proof has been given by the prosecution that the seized articles were kept in safe custody and same were handed over to the Investigating Officer.
11. Undoubtedly, a severe punishment has been prescribed in connection with the cases under the Control of Narcotic Substances Act, 1997. It is also settled principle of law that severe the punishment, greater is the care to be taken to see that all safeguards provided in a statute are strictly followed.
12. There are vital inconsistencies in the prosecution case and we are of the view that such glaring defects can not be ignored. Hence, we have no hesitation in holding that the findings recorded by the learned Judge suffer from the legal infirmity and are liable to be set aside. Therefore, in the interest of safe administration of criminal justice, Criminal Appeal No.495 of 2014 filed by Salamat Ali, appellant is accepted in toto. The sentence awarded by the learned trial court vide judgment dated 13.03.2014 is set aside and the appellant is acquitted of the charge. The appellant-Salamat Ali son of Muhammad Sardar is ordered to be released forthwith, if not required in any other case.