' Hafiz Shahid Nadeem Kahloon, J.-Muhammad Munir Ahmed, the appellant has preferred this criminal appeal under Section 48 of the Control of Narcotic Substances Act, 1997 against judgment dated 23.04.2015 passed by learned Addl: Sessions Judge, Rahimyar Khan, whereby he was convicted under Section 9-C Control of Narcotic Substances Act, 1997 and sentenced as under: ' Imprisonment for life with a fine of Rs, 5,00,000/-and in default thereof to further undergo simple imprisonment for six months by giving the benefit of Section 382-B, Cr.P.C.
' Whereas Fakhar-ud-Din and Shamas-ud-Din co-accused were acquitted by learned trial Court,
2. (Sic) facts clinched from prosecution case depict that Qasim Ali Sub- Inspector/complainant/PW-4 preferred written complaint (Exh.P-A) to SHO Police Station City Khanpur, alleging therein that on 04.11.2009, he alongwith Allah Bakhsh ASI, Muhammad Naeem 491/C, Muhammad Yousaf 1042/C, Muhammad Salaam 621/C, Abdul Rehman 851/C, Karamat Ullah 1711/C, Muhammad Siddique 1101/C, Muhammad Sajid 339/C and Faiz Rasool 560/C (driver) were on patrolling duty on official vehicle and were present at Chowk Khanpur where emissary information was received that Muhammad Munir, Shamas-ud-Din sons of Haji Noor Muhammad and Fakhar-ud-Din son of Bilal Din had engaged themselves in the business of sale and purchase of poast and they had stored 80/90 mounds poast in the store of said Fakhar-ud-Din situated at Rasheeda Colony Khanpur, whereas Muhammad Munir and Shamas-ud-Din were present in the said store and were selling poast and that if raid is conducted massive quantity of poast could be recovered. It was further informed that Muhammad Munir and Shamas-ud-Din had established a shop in Khanpur City with the name and style of Tanveer Dawa-Khana. On receipt of such information said S.I. Alongwith aforesaid police officials conducted raid at the stipulated place, where above mentioned three accused persons were present, who on seeing police party started running away, police party chased them and one of them was over powered who disclosed his name as Muhammad Munir, whereas remaining accused persons made good their escape.
Subsequently their names were disclosed by Muhammad Munir accused as Shamas-ud-Din and Fakhar-ud-Din. On personal search of Muhammad Munir accused,watak/sale amount of Rs, 3700/- was secured from his shirt, who further disclosed that he, Shamas-ud-Din and Fakhar-ud- Din were involved in the business of sale and purchase of poast. The 80-sacks of poast were lying in the store, each sack was containing 45 kilogram of Poast. The total weight of recovered Poast was 90-mounds. Half kilo poast was separated from each sack which was mixed up and total 40- kilogram of poast was sealed into a parcel for onward transmission to the office of chemical examiner for its analysis, whereas remaining 80-sacks were also taken into possession vide separate memo. Qasim Ali S.I. Drafted complaint and sent the same to Police Station through Muhammad Yousaf 1042/C for formal registration of case against said accused persons.
3. After receiving written complaint (Exh.P-A) case FIR No, 738/09 (Exh.P-A/1) was registered and investigation of the case was conducted by Qasim Ali S.I. Who prepared recovery memo. Exh.P-B, prepared rough site-plan (Exh.P-C) and recorded statements of PWs under Section 161, Cr.P.C. After completion of investigation report under Section 173, Cr.P.C. Was submitted before the learned trial Court, charge was framed which was denied by the accused persons including the appellant who professed their innocence and claimed their trial. Thereafter, prosecution produced seven witnesses viz:-
1. Muhammad Naeem 1897-C/PW-1, transmitted one sealed parcel to the office of Chemical Examiner Multan.
2. Nazar Hussain ASI/PW-2 chalked out FIR No, 738/09 (Exh.P-A/1) on the basis of complaint EX.P.A sent by Qasim Ali Sub-Inspector through Muhammad Yousaf 1042/C.
' Allah Bakhsh ASI/PW-3, is witness of recovery of narcotic substance.
' Qasim All S.I/PW-4, is complainant of this case and conducted investigation of this case.
' Ghulam Sarwar ASI/PW-5, received one sealed parcel of Poppy straw (Poast) from Qasim Ali S.I.
For its onward transmission to the office of chemical examiner along with other case property.
6. Muhammad Aslam Khan Inspector/SHO/PW-6, verified the innocence of Fakhar-ud-Din accused and prepared report under Section 173, Cr.P.C. Against Muneer Ahmed accused.
' Farrukh Javed Inspector/PW-7, verified the innocence of Shamas-ud-Din accused and also prepared report under Section 173, Cr.P.C.
' Whereas Ghulam Fareed SI. Appeared as CW-1 who conducted investigation and declared accused Shamas-ud-Din as innocent.
4. Thereafter, accused persons including appellant were examined under Section 342, Cr.P.C., they professed their innocence and denied the prosecution allegations levelled against them, whereas Muhammad Munir appellant took following stance in reply to a question that why this case was registered against you and why the PWs have deposed against you: "The case was registered against me on the wrong facts due to the personal grudge with Muhammad Aslam Khan, Inspector/SHO because FIR No, 718-2009 under Section 489-F, PPC dated 26.10.2009 was registered by me and due to this FIR, there was a dispute between me and Muhammad Aslam Khan, Inspector/SHO. So all the proceedings were done against me by the subordinates of said Inspector and all the PWs are police employees and were working under the command of said Muhammad Aslam khan, Inspector/SHO. So all the PWs recorded their evidence falsely."
5. The accused persons neither opted to appear as their own witnesses under Section 340(2), Cr.P.C. Nor produced any defence evidence however Munir Ahmed appellant/accused tendered document i.e, FIR No, 718/09 registered under Section 489-F, PPC at Police Station City Khanpur in his defence.The report of chemical examiner was tendered as (Exh.P-D) and prosecution evidence was closed. The learned trial Court after hearing the parties convicted and sentenced the appellant supra and acquitted remaining co-accused.
6. Learned counsel for the appellant submits that the impugned judgment imposing conviction and sentence upon the appellant is a result of misreading and non-reading of the material available on record, and even without taking into consideration the documents in the shape of exhibits; that learned trial Court listlessly and lethargically passed the impugned judgment which is a result of limply approach in this regard; that appellant has falsely been implicated in the instant case on the basis of mala fides; that appellant was not apprehended by the police from the spot/Store from where the alleged narcotic substance was secured by the police; that appellant was not personally known to the police officials prior to the occurrence and name of the appellant was disclosed to the police by the secret informer whose statement under Section 161, Cr.P.C. Has not been recorded by the police during investigation; that alleged narcotic substance was not recovered from the exclusive possession of the appellant, rather, same was secured by the police from the store of Fakhar ud-Din co-accused who was acquitted by learned trial Court; that no independent witness from the locality was associated by the police at the time of recovery proceedings and all the witnesses were police officials whose testimony could not be made basis for recording the conviction and sentence against the appellant; that learned trial Court did not take into consideration the fact that Muhammad Aslam Inspector/SHO (PW-6) was inimical and nourished personal vendetta against appellant and involved appellant in the instant case on the bails of mala fides so this glaring illegality can be seen with naked eyes as Muhammad Aslam Inspector (PW-6) during his cross-examination admitted that he had no knowledge whether case FIR No, 718/09 was lodged under Section 489-F, PPC at the same Police Station on behalf of' the appellant or not, further admitted that he was posted at said Police Station at the time of lodging the said FIR; that on the basis of same set of evidence, Shamas-ud-Din and Fakhar-udDin co- accused were acquitted by the learned trial Court; that learned trial Court did not deal with the case of the appellant judiciously and passed the impugned judgment merely on the basis of conjectures and surmises. Thus, it is submitted that by accepting this appeal, impugned judgment passed by learned trial Court may be set aside and appellant may be acquitted of the charge.
7. On the other hand, learned D.P.G. Fully supported the conviction and sentence recorded by learned trial Court against the appellant by contending that huge quantity of poast was recovered from the Store at the pointation of the appellant and report of chemical examiner was positive in this 'regard and as such the prosecution has fully proved its case against the appellant beyond any shadow of doubt, therefore, the appellant has rightly been convicted and sentenced by the learned trial Court. Thus, it is submitted that instant appeal is liable to be dismissed.
8. We have heard arguments of learned counsel for the appellant, learned D.P.G. 'and minutely scanned the record requisitioned from learned trial Court.
9. According to prosecution story, a spy information was received by the police that Muhammad Munir, Shamas-ud-Din and Fakhar-ud-Din accused were present in ,Rasheeda Colony situated at Khanpur and were busy in running the business of sale and purchase of narcotic substance and for this purpose they had kept 80/90-sacks of poast in the store of Fakhar-ud-Din On receipt of such information, a raiding party was constituted by the police who conducted raid at the said place. On seeing the police party the accused persons started running away, police party chased them and one of them was overpowered who disclosed his name as Muhammad Munir whereas Shamas-ud-Din and Fakhar-ud-Din accused persons made good their escape at that time. On personal Search of Muhammad Munir accused Watak/sale amount Rs, 3700/. Was secured from .His shirt. Police secured 80-sacks of Poast containing 90-mounds (total) from the spot which was available in the store.
10. In order to prove the charge against the appellant, prosecution produced Allah Bakhsh ASI (PW- 3) witness of recovery of alleged narcotic substance, Qasim Ali Sub-Inspector (P.W-4) complainant of the case, Muhammad Aslam Khan Inspector (P.W-6) and Farrakh Javaid Inspector (P.W-7) who conducted partial investigation of this case.
11. Perusal of statements of Allah Bakhsh ASI (P.W-3) and Qasim Ali Sub-Inspector/complainant (P.W-4) reveal that there were contradictions in their evidence. Allah Bakhsh ASI/P.W-3 who was the member of raiding party, in his statement deposed that when spy information was received he and Qasim Ali Sub-Inspector/complainant alongwith other police officials were present at Durrani Chowk in connection with patrolling duty on official vehicle whereas Qasim Ali Sub- Inspector/complainant in his statement took stance that he alongwith other police officials was present within the area of Dinpur Chowk when Spy information was conveyed to him. Allah Bakhsh ASI(P.W-3) further deposed that Store from where the Poast was secured was locked and lock was broken by Qasim Ali SubInspector/complainant (P.W-4) with bricks, whereas according to deposition of P.W4/ complainant there were two doors of Store, one was closed whereas other was opened. The raiding party entered into the Store from first door and did not break lock of Store.
P.W-3 during his cross-examination admitted that at the time of recovery proceedings no evidence came on record that case property (narcotic substance) was kept by the accused persons in the Store. He (P.W-3) further deposed that he did not see any person while purchasing narcotic substance from the accused persons. P.W-3 during his cross-examination admitted that no recovery was effected from the accused persons and police party did not arrest any person at the spot from the Store.
12. Qasim Ali Sub-Inspector (P.W-4)/ complainant who conducted the investigation of this case in his statement deposed that during investigation no evidence came on record that Store/shop from where the alleged narcotic substance was recovered by the police was owned and possessed by the appellant. He further deposed that during investigation neither he recorded statement of any person from the locality nor he took into possession any document in order to establish that appellant was owner of the alleged Store. P.W-4 in his statement also deposed that during investigation he did not collect any evidence in order to establish that Store was obtained by the appellant/accused on rent. P.W-4 during his cross-examination further admitted that there was no evidence on police file that any person purchased narcotic substance from the appellant/accused or somebody saw the accused/appellant while loading or unloading the narcotic substance on truck. Muhammad Naeem 1897/C/P.W-1 who is witness of recovery of alleged narcotic substance in his statement deposed that his statement under Section 161, Cr.P.C. Was recorded by the 1.0 after about two months of the occurrence.
13. Allegedly police secured 80-sacks of Poast containing 90-mounds (total) from the Store of Fakhar-ud-Din co-accused who was acquitted by learned trial Court and same was not recovered from the exclusive possession of the appellant. The appellant was nominated in the instant FIR on the basis of information provided to the police by secret informer whose statement under Section 161, Cr.P.C. Is not available on record. It has further been noticed that no independent person from the locality was associated by the police at the time of recovery proceedings despite the fact that Qasim Ali complainant/Investigating Officer (P.W-4) during his cross-examination admitted that at the time of raid large number of persons from the vicinity gathered there but he did not join any of them in recovery proceedings. The constables Muhammad Yousaf 1042/C, Muhammad Saleem 621/C, Abdul Rehman 851/C, Kamrat Ullah 1711/C, Muhammad Siddique 1101/C, Muhammad Sajid 339/C and Faiz Rasool 560/C who were the members of raiding party at the time of conducting raid at the Store, were not produced before the learned trial Court by the prosecution at the time of trial.
14. It has further been noticed by us that police took into possession the alleged narcotic substance on 04.11.2009 and sample was deposited in the office of Chemical examiner on 17.12.2009 with an extraordinary delay of about 11/2 months for which no explanation has been furnished by the prosecution. Perusal of Site-plan (Ex.P.C) reveals that Investigating Officer (P.W-4) did not mention the name of eye-witnesses in site-plan (EX.P.C). On the basis of same set of evidence, Fakhar-ud- Din and Shamas-ud-Din co-accused were acquitted by the learned trial Court. The conviction of appellant was recorded by learned trial Court on the basis of discredited and disbelieved evidence to the extent of aforesaid two acquitted accused persons without any independent corroboration without any lawful justification.
15. Keeping in view the evidence available on record, particularly the evidence of Allah Bakhsh ASI (P.W-3) who categorically stated that no recovery was effected from the appellant and that he was not arrested at the spot, we are of the considered view that the prosecution has failed to prove its case against Munir Ahmed appellant/accused beyond reasonable doubt.
16. We have gone through the record of this case from cover to cover and found that not even an iota of evidence had been produced by the prosecution to establish conscious possession on the part of the appellant. Resultantly, instant appeal is allowed, the impugned judgment dated 23.04.2015 passed by learned Addl. Sessions Judge Rahim Yar Khan is set aside and appellant is acquitted of the charge. He shall be released from the prison forthwith, if not required in any other case.