AALIA NEELUM, J:- Shahid alias Pappa son of Ghulam Muhammad, was involved in case F.I.R. No. 437/2008, dated 19.12.2008, offence under section 9 (b) of the Control of Narcotic Substances Act, 1997 registered at Police Station Zafarwal, District Narowal and was tried by Mr. Zawar Ahmed, Sessions Judge, Narowal. The learned trial court seized with the matter vide its judgment dated 28.3.2009 and convicted the appellant under section 9 (b) of the Control of Narcotic Substances Act, 1997 and is sentenced to five years R.I. with a fine of Rs.5000/- and in case of default in payment thereof, to further undergo six months S.I. Benefit of section 382-B Cr.P.C. was also extended to the appellant.
2. The prosecution story as alleged in the F.I.R (Exh.P-C/1) lodged on the complaint (Exh.P.C) of Khurram Shahzad, Inspector (PW-5) is that on 19.12.2008 the complainant along with other police officials on receipt of secret information, conducted a raid as a result of which, the accused (appellant) was apprehended who later on, got recovered Charas weighing 180 grams along with sale proceeds of Rs.335/- from his possession.
3. Thereafter on the complaint (Exh.P.C) made by Khurram Shahzad, Inspector (PW-5), formal F.I.R.
(Exh.P-C/1) was chalked out by Abdul Hameed, ASI (PW-6). Out of the recovered Charas, 10 grams was sent to the office of Chemical Examiner for analysis. The recovered Charas (P-1) and sample of Charas were taken into possession through recovery memo (Exh.P.A). Mushtaq Ahmad, ASI (PW-4), the Investigating Officer reached at the spot thereafter PW-5 handed over the accused along with recovered Charas and the relevant documents to the Investigating Officer. Having found the accused guilty, the Investigating Officer prepared report under Section 173 Cr.P.C., sent the same to the court of competent jurisdiction. The learned trial court formally charge sheeted the appellant, to which he pleaded not guilty and claimed trial.
4. The prosecution produced as many as six witnesses and also brought on record the relevant documents (Exh.P-A to Exh.P-D), case property i.e. Charas (P-1) along with sale proceeds of Rs.335/- (P-2). The learned Deputy District Public Prosecutor gave up PW Khalid Mahmood HC being unnecessary and closed the prosecution evidence after tendering the report of Chemical Examiner (Exh.P.D).
5. The appellant was also examined under Section 342, Cr.P.C. wherein he opted to lead defence evidence but 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:- "Nothing has been recovered from me. In fact, my father got registered a case against the local police of police station Zafarwal which is pending in the court of Mr. Muhammad Musharaf Hassan Sumra, learned Addl. Sessions Judge, Narowal. I have been falsely implicated in this case by the complainant in-connivance with the local police due to the said criminal case. All proceedings have been carried out against me while sitting at the police station. The case is totally false and baseless. The witnesses are police officials so they have deposed against me being sub-ordinates to the complainant/I.O.."
6. In defence, the appellant produced certified copies of the report under section 173 Cr.P.C. of case F.I.R. No.46/2007 as Exh.DA, Exh.DB and Exh.DC, certified copy of petition under section 22-A Cr.P.C. as Exh.DD and its order Exh.DE, certified copy of F.I.R. No.439/2008 Exh.DF, certified copy of F.I.R.
No.435/2008 as Exh.DG and original arms licence of Shahid Ali as Exh.DH and closed his defence evidence.
7. After hearing the arguments advanced by the learned counsel appearing on behalf of both sides, the learned trial court, while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.
8. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Law Officer and have minutely perused the record available on the file.
9. Admittedly, the appellant/accused was apprehended on 19.12.2008 at about 6.30 a.m. as per complaint (Ex.P-C) at Fetah Toor village. On interrogation, the appellant stated that he could lead to recovery of Charas, thereupon, he got recovered charas weighing 180 grams (P-1). Thereafter Khurram Shahzad, Inspector (PW-5) separated 10 gram of Charas out of the recovered narcotics and prepared two parcels, one regarding recovered articles and other of sample Charas vide recovery memo Exh.PA. On the personal search of the accused, Khurram Shahzad Inspector (PW-5) also recovered Rs.335/- (P-2), comprising of three Currency Notes of Rs.100/- denomination each.
The sealed parcels along with the case property was taken into possession vide recovery memo Exh.PA. The information through written complaint (Exh.PC) was sent to the Police Station through Constable Abid Shahzad, on the basis of which, a formal F.I.R. (Exh.P-C/1) was recorded. Although, the column of Rapt Number and time of report was left blank in the F.I.R. (Exh.P-C/1) whereas in the bottom of the complaint (Exh.P-C) time and date of Rapt was mentioned, according to which the F.I.R. was lodged on 19.12.2008 at 7.15 a.m. through Rapt No.42. However, the distance of the place of occurrence and police station, was 20 kilo-meters. The investigation of the case was entrusted to Mushtaq Ahmad, ASI (PW-4). Mushtaq Ahmad, ASI (PW-4) while appearing in the witness box as (PW-4) deposed during cross-examination that "he received complaint at police station Zafarwal at about 8.00 a.m. and he was appointed as an Investigating Officer and he left the police station Zafarwal at about 9 a.m. He reached at the place of occurrence at 9.45 a.m. Mushtaq Ahmad, ASI (PW-4) further deposed "that he was on motorcycle along with Muhammad Akram, HC" (not cited as witness), whereas PW-3 Ashraf Shahzad, HC deposed that "later ASI Mushtaq along with two constables of Police Station Zafarwal reached there at about 6.30 a.m." The prosecution story appears to be doubtful from the above stated facts as there is clear contradiction regarding time and date when recovery of Charas was effected from the appellant and the time & date when Investigating Officer reached at the place of occurrence. Even PW-4 Mushtaq Ahmad, ASI deposed that he prepared rough site plan (Exh.PB) of the place of recovery, whereas we noticed that the un- scaled site plan (Exh.PB) was prepared by Khurram Shahzad (PW-5). All these facts not only create doubt about the occurrence but it is fatal to the prosecution version.
10. As per testimony of Khurram Shahzad, Inspector (PW-5) he apprehended the accused on 18.12.2008, prepared two parcels of the recovered Charas and the samples were handed over to the Investigating Officer, Mushtaq Ahmad, ASI (PW-4) on the same day. Whereas, Mushtaq Ahmad, ASI (PW-4) specifically deposed that "on 19.12.2008 Khurram Shahzad, Inspector (PW-5) handed over to him two sealed parcels containing Charas, Rs.335/- and the accused". There is clear contradiction regarding date of recovery of Charas and its handing over to the Investigating Officer. PW-4 further deposed that he handed over case property to the Moharrar. Though the Investigating Officer has stated that he handed over the parcels to Moharrar but he did not state name of the Moharrar whereas Ijaz Ahmad, HC (PW-2) deposed that he was posted as Moharrar at Police Station Zafarwal on 19.10.2008. PW-2 further deposed that on 19.10.2008 he despatched sealed parcels and samples of charas through Muhammad Shafique, Constable (PW-1) to the office of Chemical Examiner, Lahore whereas Muhammad Shafique Constable (PW-1) deposed that on 29.12.2008, Moharrar Ijaz Ahmad (PW-2) handed over to him sealed sample parcels of Charas for depositing the same in the office of chemical examiner, Lahore. He further deposed that on the same day, he deposited the same in the office of Chemical Examiner, Lahore. There is clear contradiction regarding date of recovery of Charas (P-1), its handing over to the Investigating Officer by Khurram Shahzad (PW-5), its handing over to the Moharrar by the Investigating Officer and its further handing over to Muhammad Shafique (PW-1) for its onwards transmission to the office of Chemical Examiner. We have noted that in the Forensic Science Laboratory report Ex.PD, it has been specifically mentioned that the sample parcels were received in the office on 24.12.2008.
In our considered view this circumstance assumes importance in view of the facts that the date of recovery of contraband Charas (P-1), its handing over to the Investigating Officer by Khurram Shahzade and its further handing over to Moharrar by the Investigating Officer and its further handing over by the Moharrar to PW-1 Muhammad Shafique, Constable for depositing the same in the office of Chemical Examiner did not match with the date when the same were received in the office of chemical examiner.
11. In our aforesaid view we have observed that not only there are material contradictions in the statements of the prosecution witnesses but admittedly there was a clear contradiction that when actually contraband was recovered and handed over to the Investigating Officer, then to the Moharrar, thereafter to PW-1 for onwards transmission to the office of Chemical Examiner. All these facts evaded the credibility of the recovery proceedings and rendered the case of the prosecution doubtful. The burden always remains on prosecution to prove affirmatively right from the arrest of accused, seizer of recovered contraband till it reaches the office of chemical examiner. All facts must be in line but the facts of the present case create doubt on the case of the prosecution and benefit of reasonable doubt always goes to the accused and not to the prosecution. We are of the view that the prosecution has failed to prove its case beyond any reasonable doubt and it cannot be said that the prosecution version is not free from doubt for upholding the conviction and sentence as rendered by the learned trial court.
12. Accordingly, benefit of doubt is extended to the accused, thus the Criminal Appeal No.429/2009 is allowed and the appellant is acquitted of the charge. The conviction and sentence passed by the learned trial court vide the impugned judgment dated 28.3.2009 in case F.I.R. No.437 dated 19.12.2008, offence under section 9 (b) of the Control of Narcotic Substances Act, 1997 registered at Police Station Zafarwal, District Narowal is set aside. The appellant is on bail as his sentence was suspended by this Court vide order dated 27.5.2009. The surety bonds furnished by the appellant shall stand discharged.