' Mirza Viqas Rauf, J.--The appellant Khaliq alias Khalid assails the vires of judgment dated 07th of January, 2011 passed by the learned Additional Sessions Judge/Judge Special Court, Control of Narcotic Substances, Sheikhupura whereby he was convicted under Section 9(c) of The Control of Narcotic Substances Act, 1997 and sentenced to undergo life imprisonment with fine of Rs.
1,00,000/-. In case of non-payment or non-realization of fine, the appellant was held to further undergo six months S.I. Benefit of Section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to him.
2. Precisely the facts necessary for adjudication of instant appeal are that on 24th of April, .2006 when the appellant was under interrogation in case FIR No. 183/2006 offence under Section 9(c) of The Control of Narcotic Substances Act, 1997, he allegedly led to the recovery of 48 sacks containing Poppy (poast) from a shop situated at Bhikhi Road, Tibba Jeonpura. On weighing, total recovery became 24- maunds. This event resulted into drafting of complaint by Muhammad Nawaz Sub-Inspector which was later on transmitted to the Police Station and resultantly, FIR No. 295 dated 24th of April, 2006 was got registered under Section 9(c) of The Control of Narcotic Substances Act, 1997 at Police Station Bhikhi, District Sheikhupura.
3. After formal investigation, report under Section 173 of The Code of Criminal Procedure, 1898 was submitted before the learned trial Court and the appellant was sent to face the trial. The learned Judge, Special Court, Control of Narcotic Substances, Sheikhupura, seized with the matter, framed charge against the appellant under Section 9(c) of The Control of Narcotic Substances Act, 1997 to which he pleaded not guilty and claimed trial. In order to prove the case against the appellant, the prosecution examined Shafqat Hanif 191/C as PW.1. He deposed that on 06th of May, 2006, Muhammad Tariq Muharrar handed over to him one sealed parcel containing Poppy (poast) weighing 20-kilogram for onward transmission to the office of Chemical Examiner, Lahore which he deposited accordingly. Muhammad Sharif, Sub-Inspector the scribe of FIR (Exhibit-PA/1) was produced as PW.2. Faiz Muhammad Assistant Sub-Inspector, being one of the recovery witnesses and signatory to the recovery memo. (Exhibit-PB) was examined as PW.3. Tariq Mehmood/Head Constable-1041 who was officiating as Muharrar was examined as PW.4, Muhammad Nawaz, Sub- Inspector/complainant was examined as PW.5. In addition to these witnesses, statement of Abdul Ghaffar, Assistant Sub-Inspector was recorded as PW.6. Report of Chemical Examiner was tendered in the evidence as Exhibit-PD and thereafter, the prosecution evidence was closed. Upon completion of prosecution evidence, the statement of appellant was recorded under Section 342 of The Code of Criminal Procedure, 1898. One Ghulam Fareed, Inspector Police Line, Sheikhupura was produced in defence as DW.1, however, the appellant did not opt to appear in terms of Section 340(2) of The Code of Criminal Procedure 1898. After completion of the evidence from both the sides, the learned trial Court, after holding the appellant guilty of the offence, convicted him under Section 9(c) of The Control of Narcotic Substances Act, 1997 and awarded him the sentence as already mentioned in the opening paragraph of the instant judgment.
4. Learned counsel for the appellant contended that the prosecution has badly failed to prove its case against the appellant. He maintained that the evidence of the material witnesses is self- discrepant. Learned counsel added that statement of Abdul Ghaffar (PW-.6) is highly unbelievable.
Learned counsel argued that at the time of trial, the ease property was not produced before the learned trial Court which causes serious dent to the prosecution case. He added that the alleged recovery was never in the exclusive possession of the appellant. In the last, learned counsel submitted that out of 48- scaks allegedly recovered, only one sack was sent to the office of Chemical Examiner far the purposes of analysis. In support of his contentions, learned counsel relied upon "Amjad A.I versus The State" (2012 SCM R 577).
5. Conversely, learned Additional Prosecutor General defended the judgment passed by the learned trial Court. He submitted that the alleged recovery was effected on the pointation and disclosure of the appellant. Learned Law Officer further submitted that even if we take into consideration only one sack which was sent to the office of Chemical Examiner for chemical analysis that was also of the weight of 20-kilograms and in the light thereof, the sentence was rightly awarded to the appellant. In the last, learned Additional Prosecutor General submitted that due to the afflux of time it is quite natural that certain minor discrepancies may occur in the evidence of the prosecution. He added that huge quantity was recovered from the appellant which cannot be foisted.
6. We have heard the learned counsel for the appellant as well as the learned Additional Prosecutor General and also perused the record with their assistance.
7. At the time of alleged recovery the appellant was already under the custody of the police in case FIR No. 183 dated 21st of March, 2006 offence under Section 9(c) of The Control of Narcotic Substances Act, 1997 registered at Police Station Bhikhi, District Sheikhupura. As per prosecution story, during interrogation in the said case, the appellant led to the recovery of 48-sacks containing Poppy (poast). Record reveals that the appellant was in judicial lock up of District Jail, Sheikhupura in case FIR No. 45/2003 offence under Section 395 of The Pakistan Penal Code, 1860 registered at Police Station, Mananwala when his custody was obtained by the police for conducting investigation in case FIR No. 183/2006 by moving an application on 19' of April, 2006 before the concerned learned Judicial. Magistrate. He was then brought from the judicial lockup by the police for the purposes of interrogation and from 19th of April, 2006 to 24th of April, 2006, the appellant remained in the custody of the police and on 24th of April, 2006 he allegedly led to the recovery of 48-sacks of Poppy (poast) from a shop situated in Bhikhi Road, Jeonpura. The said shop was admittedly owned by one Bashir Ahmad who was neither arrayed as an accused nor was ever associated in the investigation. For proving the alleged recovery, the prosecution examined Faiz Muhammad Assistant Sub-Inspector as PW.3, Muhammad Nawaz Sub-Inspector as PW.5 and Abdul Ghaffar Assistant Sub-Inspector as PW.6. It is established on the record that during the statement of PW.3 and PW.5, the case property was not produced before the learned trial Court.
Faiz Muhammad Assistant Sub-Inspector while appearing as PW.3 admitted in his cross- examination that the sacks are not present in the Court today. He also admitted that the shop in question was unlocked and everybody can go to the place of recovery as the same was accessible to everyone. The statement of Muhammad Nawaz Sub-Inspector (PW-.5) was also on the same lines.
8. We have observed that it is almost a unique case where the prosecution has produced both the recovery witnesses in the witness box and apparently it was due to the lapses occurred in the evidence of PW.3 and PW.5, which prompted prosecution to examine Abdul Ghaffar Assistant Sub- Inspector as PW.6. During his statement for the first time 47 sacks were produced before the learned trial Court which even as per his own statement were not sealed. His statement is fraught with improvements. During his cross-examination, he was confronted with his previous statement recorded under Section 161 of The Code of Criminal Procedure, 1898 as a result thereof, the improvements introduced by him in examination-in-chief were negated. In the light of these improvements which were purposely introduced by the said witness, his evidence is of no credence. Reliance in this respect can safely be placed on "Mian Dad Leghari versus The State"
9. The collective examination of the prosecution evidence leads us to certain irresistible conclusions. Firstly, the case property was not sealed. Secondly, the alleged recovery was effected from a shop which was owned by one Bashir Ahmad and the same was not locked and accessible to the general public. The prosecution has even failed to bring on record any nexus or relationship between the appellant and said Bashir Ahmad. The whole prosecution evidence is silent about the safe custody of the case property and this aspect is even confirmed from the statement of Tariq Mehmood Moharrar (PW4) who while appearing as such deposed as under: "On 06.05.2006 I was posted as Muharrar at P.S/Bhikhi. On the same day Muhammad Nawaz S.I delivered me one bag of Post which I delivered to Shafqat Hussain 1354/C for onward transmission to the Office of Chemical Examiner, Lahore. No body tempered the said bag while remain in my custody."
' There is yet another important aspect of the case which relates to the sample parcel prepared for the purposes of chemical analysis. All the prosecution witnesses deposed with conformity that no sample was taken from any of the 48 sacks allegedly recovered rather only one sack was sent to the office of Chemical Examiner for chemical analysis and that too in an unsealed condition. The fact that the custody of the appellant was obtained on 19th of April, 2006 from the jail under the orders of the learned Judicial Magistrate and after about five days of his custody with the police, he led to the alleged recovery from a shop which was unlocked and accessible to everyone, is highly shocking and unimaginable. It has also come on the record that the appellant has already been acquitted in FIR. No. 183 dated 21st of March, 2006 offence under Section 9(e) of The Control of Narcotic Substances Act, 1997 registered at Police Station Bhikhi, District Sheikhupura by this Court in Criminal Appeal No. 1284/2007 vide judgment dated 27th of June, 2013. The appellant has also produced Ghularn Fareed Inspector as DW.1 who corroborated his defense plea and his statement went unattributed as he was not even cross-examined. So far the arguments advanced by learned Additional Prosecutor General that due to the afflux of time, certain discrepancies do occur, we have no second opinion about that as occurrence of minor or slightest discrepancies is a natural phenomenon but if the witnesses do not depose in line with the prosecution on the material points then that cannot be termed as minor or inconsequential discrepancies. Learned Additional Prosecutor General has also tried to defend the judgment of the learned trial Court on the ground that such a heavy quantity cannot be planted upon the accused. We are constrained to observe that mere alleging of huge quantity against the accused is not the sole factum to adjudge his guilt rather for proving the alleged recovery, the prosecution has to lead overwhelming and convincing evidence which appeals to a prudent mind. As we have already discussed that the prosecution has even failed to produce the case property before the learned trial Court and 47 sacks which were produced during the statement of PW.6 were even neither sealed nor it is clear that from where those were brought for the said purpose. Even none of the witness has stated about the handing over of the case property to the Muharrar or keeping it in the safe custody.
10. Though in terms of Section 29 of The Control of Narcotic Substances Act, 1997 some depart was made to the general principle of criminal jurisprudence that the onus of proof always lies upon the prosecution but even in presence of said provision of law, the prosecution is initially bound to establish that the alleged contraband was recovered from the possession of the accused and only after discharge of this initial onus, the burden will then shift towards the accused. The bare perusal of record clearly reflects that in the instant case, the prosecution has badly failed to discharge its initial onus as 11 the evidence led by the prosecution is highly discrepant. Reference in this respect can safely be relied on "Muhammad Imran versus The State" (2011 SCM R 1954).
11. The case property having produced during the statement. Of PW.6 was not in the sealed condition thus the same cannot be safely relied upon. Even the learned trial Court did not believe the recovery qua 47 sacks 'and discarded the prosecution evidence to this extent. The relevant portion of the judgment of learned Trial Court is reproduced below.
"However, it is an admitted fact in the documents Ex.PA and Ex.PA/1, and in the evidence of prosecution witnesses that only one bag weighing 20 kilograms, out of 48 recovered bags of narcotics was separated and sent for chemical analysis. No sample from the other 47 bags was taken by the Police and sent for chemical analysis. Meaning thereby that the prosecution has not proved that the remaining 47 bags also contained narcotics."
' The learned trial Court however, recorded the conviction of the appellant on the basis of one sack which was sent for chemical analysis to the office of Chemical Examiner, Lahore weighing 20- kilograms. The prosecution has even not challenged the findings of the learned trial Court to this effect. In view of the prevailing circumstances and in the light of the evidence which was even discarded by the learned trial Court qua the recovery of 47-sacks, the findings of conviction, while relying upon one sack is not.Justified on any account. Even otherwise, the testimony of the prosecution witness was neither confidence inspiring nor trustworthy. It is well settled principle of criminal law by now that prosecution remains under heavy burden to prove the charge against the accused beyond any shadow of about but in the instant case the prosecution has failed to bring the guilt home to the appellant beyond any shadow of doubt. For extending the benefit of doubt it is not necessary that there should be many circumstances creating doubts, even a single circumstance reflecting reasonable doubt in prudent mind about the guilt of the accused, makes him entitle to the benefit of the same as is held in the case of "Muhammad Zaman versus The State and others" (2014 SCM R 749).
12. For what has been discussed above, we are of the considered view that the learned trial Court has failed to properly appraise the evidence available on the record while recording the conviction of the appellant. The said conviction and sentence cannot sustain in the light of above noted infirmities. Consequently, we allow this appeal and set-aside the conviction and sentence of the appellant as recorded by the learned Additional Sessions Judge/Judge Special Court, Control of Narcotic Substances, Sheikhupura vide judgment dated 07th of January, 2011. The result of the same is that the appellant is acquitted from the charge levelled against him by extending him benefit of doubt. He shall be released from judicial lockup forthwith if he is not required in any other criminal case.