' MISS AALIA NEELUM, J.---Haq Nawaz son of Ameer, the appellant was involved in case FIR No,542/2009 dated 01.7.2009, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station City Chiniot, District Chiniot and was tried by the learned Additional Sessions Judge, Chiniot. The learned trial court seized with the matter in terms of judgment dated 15.7.2010 convicted the appellant under Section 6 read with Section 9 of the Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life with the direction to pay Rs,2,00,000/-as fine and in case of default thereof, further undergo Simple Imprisonment for six months. The benefit of Section 382-B of Cr.P.C., was also extended in favor of the appellant. The appellant has assailed his conviction through filing the instant appeal.
2. The prosecution story as alleged in the FIR (Ex.PC/1) lodged on the complaint (Ex.PC) of Zafar Ali, SI/SHO (PW-3)/complainant is that on 08.2.2007 he received spy information that accused-Haq Nawaz is indulged in the business of narcotics and he stored huge quantity in his(sic) was opened from where 18 bags containing 50 kilogram poppy straw each were recovered which were taken into possession. The complainant separated 250 grams of poppy straw from each bag and sealed separately for the chemical analysis. The said poppy straw P-1/1-18 was taken into possession by the complainant Zafar Ali, SI vide recovery memo (Ex.PA). On further disclosure by the accused- Haq Nawaz, that he has joint business of poppy straw (Poast) with Jaleel "Pansari", resident of Mohallah Ghafoor-abad, Chiniot and the same was purchased by them prior to four days of the occurrence against a sum of Rs,10,000/- per bag.
3. The complainant (PW-3) prepared the complaint (Ex.PC) and on the basis of the same, formal FIR (Ex.PC/1) was chalked out by Zafar Abbas 641/HC (PW-4). After registration of FIR (Ex.PC/1), investigation was entrusted to Sarfraz Hussain Shah, Inspector (PW-2) who visited the place of occurrence, prepared the site plan without scale (Ex.PB) and another accused Jaleel in the case and on 14.7.2009 both the accused were sent to judicial lock up. He got prepared the report under section 173, Cr.P.C. Against the accused.
4. The learned trial court formally charge sheeted the appellant along with co-accused Jaleel Hamza on 01.02.2010, to which they pleaded not guilty and claimed trial. It is pertinent to mention here that during trial, co-accused Jaleel Hamza moved application under section 265-K, Cr.P.C.
Qua his acquittal which was accepted by the learned trial court on 10.3.2010 and he (co-accused Jaleel Hamza) was acquitted from the charge.
5. The prosecution in order to advance its case, produced as many as six witnesses. Zafar Hussain Shah (PW-2) is the Investigating Officer of the case.. Zafar Abbas 641/HC (PW-4) chalked out formal FIR (Ex.PC/1) on receipt of complaint (Ex.PC) and Qazi Hamad Raza, ASI (PW-1) and Muhammad Riaz are witnesses of the recovery. Faiz Ahmad 296/C appeared as (PW-5) who deposed that on 25.8.2009 Moharrar/HC handed over to him 18 sealed parcels said to contain Poast for onward transmission to the office of chemical examiner which he produced on 26.8.2009 intact. Mumtaz Ali 165/MHC (PW-6) deposed that on 01.7.2009 the Investigating Officer handed over to him 18 sealed parcels with seal of Z.A. Along with case property of this case which he handed over the said sealed parcel to Faiz Ahmad constable (PW-5) for onward transmission to the office of Chemical Examiner.
6. On 09.6.2010 the learned Deputy District Public Prosecutor vide his separate statement closed the prosecution evidence while tendering Chemical Examiner report Ex. PD.
7. 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.0 in disproof of allegations levelled against him and while replying to a particular question that why PWs have deposed against him, the appellant made the following deposition:-- ' "PWs are subordinate of I.O. And falsely deposed against me. The police planted false case upon me only to save the accused Jaleel named in the FIR."
8. After hearing the arguments advanced by the learned counsel for the appellant as well as the learned Deputy District Public Prosecutor on behalf of the State, 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. The learned counsel for the appellant has submitted that documentary evidence in the shape of Chemical Examiner Report does not reflect that same relates with the samples allegedly taken from the recovered substance. Learned counsel has further submitted that there is sharp contradiction in the evidence of prosecution witnesses and that possibility of tampering with the case property would not be ruled out. The learned counsel for the appellant lastly prayed for kind indulgence of this court in the circumstances.
10. On the other hand, learned Deputy Prosecutor General 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.
11. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy Prosecutor General and have minutely perused the record available on the file.
12. In a criminal case trial, initial burden of proof is always on the prosecution and the said burden is quite heavy. The prosecution has to prove its case beyond reasonable doubt. The question before us whether any reasonable doubt regarding safe custody of the allegedly recovered substance Toast' weighing 22 Maunds and 20 kilograms arises and whether the recovered contraband was in safe custody which rules out the possibility of tampering. In this regard, most important testimony was of Zafar Ali, SI/SHO (PW-3)/the complainant who on receiving spy information raided the house of the accused-Haq Nawaz. On inquiry by him (PW-3) the accused handed over to him (PW- 3) key of room and on opening the door, the complainant (PW-3) found 18 bags of Poppy Straw (P1/1-18) lying there. Zafar Iqbal, SI/SHO (PW-3) in his court statement deposed that:-- ' "Each bag contained 50 Kg of Poppy Straw and out of the said bags 250 Kg Poppy Straw was separated and sealed into parcels for the chemical analyses. I took the said Poppy Straw into the possession vide recovery memo (Ex.PA). Qazi Hamad and Muhammad Shahid attested the same Afterwards Sarfaraz Inspector reached at the place of occurrence and case file and the case in hand was handed over to him".
13. There is no evidence on record to show that Zafar Ali, SI/SHO (PW-3) the complainant handed over case property and parcels of samples sealed by him to the Investigation Officer-Sarfraz Hussain Inspector (PW-2). However, Sarfraz Hussain, Inspector (PW-2)/the Investigation Officer during cross-examination deposed that:-- ' "The said parcels we're delivered to me by Zafar Ali, SHO and 1 handed over the same to MHC."
' Sarfraz Hussain, Inspector (PW-2) had not recorded statement under section 161, Cr.P.C. Of Moharrar. In this regard he deposed that:-- ' "I have not recorded the statement of Moharrar regarding the delivery of parcels."
14. Contrary to the deposition of Zafar Ali, SI/SHO (PW-3), the witness of recovery Qazi Hamad Raza, ASI (PW-1) deposed in his court statement that:- "Later on his name was disclosed as Haq Nawaz and his pointing out and production of key of lock from his possession and opened the door and 1.0 took 18 bags P-1/1-8 said to contain to Poppy Straw were recovered and same were taken into possession vide recovery memo Ex. PA and which was attested by me and Muhammad Riaz in token of its correctness.
' The said was taken into Police Station City Chiniot. Then 1.0 separated samples for Chemical Analysis at Police Station.
(Bold + underline for emphasis)
' During cross-examination Qazi Hamad Raza, ASI (PW-1) also deposed:-- "The parcels were not prepared at the spot place."
15. So there is contradiction as regard the place where samples were drawn and who drew the samples. Therefore, there is absolute glaring contradiction in the testimony of the prosecution witnesses and this vital contradiction remained unexplained. Therefore, evidence regarding material aspect with respect to drawing of samples from the spot is contradictory.
16. As per the complainant-Zafar Ali, SI/SHO (PW-3) deposed that weighing of the contraband allegedly recovered on the spot was done with the help of weighing scale that was taken of the vehicle which was available in investigating kit. The weights of one gram to five kilograms were available. Zafar Ali, SI/SHO (PW-3) deposed during cross-examination that:-- ' "From the weight of five kilograms prepared weight of 50 kilograms, It took about 2/3 minutes in this process."
17. It would be significant to mention here that Zafar Ali, SI/SHO (PW-3) weight 22 Maunds and 20 Kilograms Toast' with weight of five Kilograms in 2/3 minutes. It remains unexplained as to how Poast 22 Maunds and 20 Kilograms was weighed in 2/3 minutes. Contrary to the deposition of Zafar Ali, SI/SHO (PW-3), Qazi Hamad Raza, ASI (PW-1) deposed during cross-examination that:-- "SHO procured mobile scale from the tall of wood."
' All these circumstances taken together only deepen the shadows of doubt cast upon the case of prosecution.
18. There is another aspect as regards handing over 18 sealed parcels by the Moharrar (PW-6) to Faiz Ahmad, constable (PW-5). Mumtaz Ali, MHC (PW-6) deposed during his court statement that:- - ' "I handed over the said sealed parcels to Fiaz Ahmad constable for.Onward transmission to the office of Chemical Examiner."
' Whereas during cross-examination he (PW-6) deposed that:- ' "I handed over the parcels to constable on 26.08.2009."
' Contrary to the deposition of Mumtaz Ali, MHC (PW-6), Fiaz Ahmad Constable (PW-5) deposed that:- ' "On 25.08.2009 1 was posted at Police Station City Chiniot when MHC handed over to me 18 sealed parcels said to contain "Poast" for onward transmission to the office of Chemical Examiner which I produced on 26.08.2009 intact.
19. There are contradictions in the case of the prosecution as to date of dispatch of the parcels of samples and deposit of the parcels of samples in the office of Chemical Examiner. In the trial it was necessary for the prosecution to establish by cogent evidence that the Toast' (P-1/1-18) was seized from custody of the accused which was kept in the safe custody. The Investigating OfficerSarfraz Hussain, Inspector (PW-2) deposed during cross-examination that:-- ' "I have not recorded the statement of constable who transmitted the said parcels to the office of Chemical Examiner."
20. He (PW-2) also deposed that it was not in his knowledge as to whether he has transferred the said parcels to Chemical Examiner or not. There is no explanation for this failure on the part of the Investigating Officer. The Chemical Examiner Report (Ex.PD) reflects that parcels of samples were deposited in the office of Chemical Examiner on 27.08.2009. The samples deposited in the Chemical Examiner Office on 27.08.2009 could not be related with the samples taken from the seized substance from possession of the appellant. There is, thus, no evidence to connect the Chemical Examiner Report (EX.PD) with the substance that was seized from the possession of the appellant.
21. There are also contradictions as regard the time of raid and preparation of complaint (Ex.PC). All above aspects do create strong doubt as regards truthfulness of prosecution version of raid, recovery, seizer, dispatch of parcels of samples. The record thus, is riddled with numerous inconsistencies, improbabilities and glaring contradictions which strike at the very root of the case and create doubt as regards truthfulness of prosecution case. The prosecution has failed to prove its case beyond reasonable doubt. 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.
22. Accordingly, benefit of doubt is extended to the appellant, thus the Criminal Appeal No, 2431 of 2010 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 15.07.2010 in case FIR No, 542/2009 dated 01.07.2009, offence under section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station City Chiniot, District Chiniot is hereby set aside and he is directed to be released from the jail forthwith, if not required in any other criminal case. .