Aalia Neelum, J.- Shahid Mehmood son of Ghulam Rasool, the appellant was involved in case F.I.R.
No.06 2008 dated 11.01.2008, offence under Section 9 (c) of The Control of Narcotic Substances Act, 1997, registered at Police Station, Saddar Kamonke, District, Gujranwala and was tried by the learned Additional Sessions Judge, Gujranwala. The learned trial court seized with the matter in terms of judgment dated 30.08.2008 convicted the appellant under Section 9 (C) of the Control of Narcotic Substances Act, 1997 and sentenced to undergo rigorous imprisonment for two years along with fine of Rs.10,000/-and in default of payment of fine-amount, the appellant will further undergo Simple Imprisonment for one month. The benefit of Section 382-B of Cr.P.C was also extended in favour of the appellant. The appellant has assailed his conviction through filing the instant appeal.
2. The prosecution story as alleged in the F.I.R. (Ex.PA) lodged on the complaint (Ex.PC) of Muhammad Ilyas, S.I. (PW-4)/complainant is that on 11.01.2008, he (PW-4) along with Muhammad Arif, 1965/C, Khadim Hussain 1924/C, Ahmad Mehmood 2740/C and Qamar Iqbal 188/C were present in Batgram Hotel, G.T.Road, Kamonke in search of proclaimed offenders and received a secret information that a person is selling garda/charas at Wakil Khan Road and could be apprehended, if a raid was conducted. After receiving the spy information, he (PW-4) along with raiding party reached at the spot and apprehended the accused having a plastic bag in his right hand wherefrom charas-garda weighing 1335 grams was recovered. On asking, the accused disclosed his name as Shahid Mehmood son of Ghulam Rasool, Caste Rajpoot Khokhar, resident of Mohallah Islamabad near Sueywala Pul Kamonke, District Gujranwala. The recovered charas/garda (P-1) was taken into possession by (PW-4) vide recovery memo (Ex.PB), out of which a sample of ten grams charas/garda was separated in a sealed parcel for chemical analysis by embossing a seal of M.A. Thereafter the complainant (PW-4) handed over the physical custody of accused along with case property to Khadim Hussain 1924/C for onward transmission to the police station for further proceedings.
3. After registration of F.I.R., investigation was entrusted to Muhammad Arshad, S.I. (PW-5), who inspected the place of occurrence, prepared the site plan (Ex.PD) and recorded the statements of prosecution witnesses under Section 161 of Cr.P.C. Having found the accused guilty, the Investigating Officer (PW-5) prepared report under Section 173 Cr.P.C., while placing his name in Column No.3 of the Challan and sent the same to the court of competent jurisdiction.
4. The learned trial court formally charge sheeted the appellant on 25.04.2008, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as five witnesses. Muhammad Ilyas, S.I. (PW-4) is complainant, Muhammad Arshad, S.I. (PW-5) is Investigating Officer, Maqbool Ahmad, 1878/C (PW-5) chalked out the formal F.I.R (Ex.PA) on receipt of complaint (Ex.PC) whereas Iftikhar Ahmad 1633/C (PW-2) & Muhammad Arif 1655/C (PW-3) are witnesses of the recovery.
5. On 22.07.2008, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering the report of Chemical Examiner as (Ex.PE).
6. The appellant was also examined under Section 342, Cr.P.C. wherein he opted to lead defence evidence and refused 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 particular question that why PWs have deposed against him, the appellant made the following deposition:- "I am innocent in this case. My real brother namely, Allah Ditta was falsely involved in case FIR No.566-2007 under Section 365-B PPC registered at Police Station City Kamonke on the complaint of one Nizam Din resident of Muslim Gunj Kamonke for the abduction of her daughter Msgt. Ifat Bibi.
Said Nizam Din is a neighbourer of one Akhtar ASI who is posted in police station City Kamonke.
Nizam Din had earned good relations with said Akhtar ASI. Muhammad Ilyas, S.I. in connivance with Akhtar Ali, ASI and Nizam Din falsely got this case registered against me. All the PWs are police officials hence, they have falsely deposed against me."
7. 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.
8. Heard. Record perused.
9. It is the case of prosecution that Muhammad Ilyas, S.I. (PW-4) drafted the complaint (Ex.PC) at the spot on 11.01.2008 and sent the same along with recovered charas and accused to the police station through Khadim Hussain 1924/C. However, Iftikhar Ahmad, H.C. 1633 (PW-2), the Moharrar did not depose that Khadim Hussain 1924/C handed over to him sealed parcel said to contain charas. Instead, in his examination-in-chief, he specifically deposed that on 11.01.2008, Muhammad Arshad, S.I./I.O. handed over to him two sealed parcels said to contain charas. Contrary to the deposition of Iftikhar Ahmad, H.C., (PW-2), the Moharrar, Muhammad Arshad, S.I. (PW-5), the Investigating Officer, deposed during cross-examination that, " I have not mentioned in whole of my case diary that sample or case property was delivered to me by complainant or any one else. It is correct that I have not mentioned in whole of my case diary that case property was deposited by me in the safe custody to the Moharrar. I have examined the case diary and it has nowhere been mentioned by me that in whose safe custody the parcel and case property remained." This fact alone creates a ground to believe that the case property was not kept in safe condition and the claim of the prosecution that the case property was not tampered with is doubtful. On the other hand, the person (Khadim Hussain, Constable) who took the sealed parcel of the case property and parcel of sample from the place of occurrence to the police station has not been examined by the prosecution. In absence of deposition by the person who carried the sealed parcels of the case property and sample to the police station, to the effect that the case property remained intact and had not been tampered with it, conviction can not be based and the conviction by the learned trial court was liable to be set aside.
10. In any case, the burden lies upon the prosecution to prove its case beyond the reasonable doubt. The production of seized article is necessary, so that, the chemical report could be corroborated with the seized article. There is no evidence on record that the case property was produced before the learned trial court. The learned Law Officer is not able to show any evidence on record that the case property "charas garda" was produced in the court creates serious infirmity and doubt about the existence of the case property. Learned Law Officer has frankly conceded that the case of the appellant is fit for acquittal.
11. For the reasons stated above, it is held that prosecution has not been able to prove its case beyond all reasonable doubts against the accused-appellant, Shahid Mehmood for the offence under Section 9 (c) of The Control of Narcotic Substances Act, 1997. Thus, the findings of the learned Additional Sessions Judge, Gujranwala qua conviction of the appellant-Shahid Mehmood for the above said offence are liable to be set aside and the same is set aside and as a consequence whereof, the appeal is accepted and Shahid Mehmood is ordered to be acquitted of the charge in case F.I.R. No.06-2008, dated 11.01.2008, offence under Section 9(c) of The Control of Narcotic Substances Act, 1997, registered at Police Station, Sadar Kamonke, District Gujranwala. The appellant is on bail as his sentence was suspended by this Court vide order dated 16.04.2009. The surety bonds furnished by the appellant shall stand discharged.