' SARDAR MUHAMMAD SARFRAZ DOGAR, J.---Muhammad Taj son of Ghulam Qasim, the appellant, was embroiled in case FIR No,472/2009, dated 28.11.2009, under Sections 9(c) of Control of Narcotic Substances Act, 1997, registered at Police Station Kallur Kot, and was tried by the learned Additional Sessions Judge, Kallur Kot. The learned trial Court seized with the matter in terms of judgment dated 12.10.2010 convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo five years' R.I. With the direction to pay Rs,50,000/- as fine and in case of default thereof, further undergo S.I. For six months. The benefit of Section 382-B, Cr.P.C. Was also bestowed upon him. Feeling aggrieved by the judgment of the learned trial Court, Muhammad Taj appellant assailed his conviction through filing of the instant appeal.
2. The prosecution story as alleged in the FIR: (Exh.PD) lodged on the complaint (Exh.PC) of Abdur Razzaq Inspector/SHO (PW-2) is that on 28.11.2009, at about 11:30 P.M. (night) he along with other police officials was present Lorri-Adda Kalurkot in connection with patrolling duty on an official vehicle and the search of notorious persons. The complainant received a spy information that Muhammad Taj appellant, who deals in business of narcotics, having huge quantity of narcotics is coming to Kallurkot town in a car bearing registration No,6288-IDB. On receipt of such information, the complainant constituted a raiding party and installed a picket. In the meanwhile, car bearing registration No,6288-IDB emerged there from Shigo-Shumali side, which was intercepted by the raiding party. The driver of said car managed good his escape as it was very dark, however, appellant was found sitting on the front seat. On search of car, 15 bottles of liquor were found lying under his feet with stickers 'Murree's Vat No,1' and a white shopper was found in the lap of appellant, in which charas weighing 1400 grams was recovered. Out of recovered charas, 10 grams were separated for chemical analysis. The recovered narcotic substance charas was taken into possession by the complainant vide recovery memo Exh.PA attested by Muhammad Anwar A.S.I.
And Mureed Abbas 457/H.C. On personal search of appellant, Rs,300875/-, a mobile phone were also recovered, which were also taken into possession by the 'complainant vide recovery memo Exh.PB, attested by Muhammad Anwar A.S.I. And Mureed Abbas 457/H.C. The complainant drafted complaint (Exh.PC) and sent the same through Muhammad Amin 517/C to the Police Station for registration of the formal FIR (Exh.PD).
3. Thereafter, the investigation was conducted by Muhammad Nawaz S.I. (PW-6), who prepared the site plan of the place of recovery (Exh.PE) and conducted his investigation and prepared report under Section 173, Cr.P.C. While placing the name of the appellant 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 19.4.2010, to which he pleaded not guilty and claimed trial. The prosecution in order to 'prove its case has examined as many as six witnesses. Umar Hayat 306/C (PW1) deposed that on 10.12.2009 he received 15 bottles of liquor and a sealed parcel said to contain charas and on 11.11.2009 he deposited the same in the office of Chemical Examiner. Abdul Razzaq Inspector (PW-2) was complainant of the case, who reiterated the content of complaint (Exh.PC) in his depositions. Mureed Abbas A.S.I. (PW-3) was the recovery witness. Habib Ullah 538/MHC (PW-4) deposed that on 10.12.2009, he handed over a parcel containing charas and liquor to Umer Hayat 306/C for onwards transmission to the office of Chemical Examiner. Muhammad Akram A.S.I. (PW-5) was scriber of FIR (Exh.PD) Muhammad S.I.
(PW-6) was the investigating officer of instant case.
5. By closing the prosecution case, the learned trial Court examined the appellant under Section 342, Cr.P.C. Wherein he professed innocence. In reply to the question why this case against you and why P. Ws. Have deposed against you, he deposed as under:- "The case is false and frivolous one. I am an aged person and zamindar of Ilaqa. I have long standing enmity with Mulazim Hussain ASI by Caste Gorcha and the complainant of this case Who is relative of above said Mulazim Hussain ASI on the instigation of above said Mulazim Hussain AS!.
Abdul Razzaq 5110/inspector Kallur Kot along with other officials raided illegally in my house at the night time and when nothing incriminating material was recovered from my house then police forcibly snatched my mobile phone P-429, snatched golden ornaments of the inmates of my house, picked up Rs,5,50,000/- included money shown recovered in this case Rs, 300875/- from the boxes of my house and car P-430 also driven away from house. The local police for saving their skin and for grabbing the money and ornaments not shown in the recovery memos, arrested me from my house and planted a false and frivolous story of this case. Above said Mulazim Hussain ASI in his earlier posting also tried to involve me in a false case of 9-B/CNSA in which I was acquitted. Now in the days of said occurrence which is false one Mulazim Hussain ASI who is admittedly relative of the SHO Abdul Razzaq Gorcha, he again tried to involve me in this false case and on the instigation of Mulazim Hussain ASI, the SHO Abdul Razzaq made all the forged and fictitious proceedings shown in this false case as it is clear from the evidence produced by the prosecution which is unbelievable and highly discrepant. All the prosecution witnesses are police officials and are subordinate to the complainant, they deposed falsely against me on the pressure of SHO Abdul Razzaq'.
' The appellant neither opted to appear as his own witness in terms of Section 340 (2) Cr.P.C.
However, he produced copy of application for his physical remand (Exh.DA), copy of judgment of learned Additional Sessions Judge, Kallurkot in case FIR No,525/2006 (Exh.DB), copy of sale receipt of tractor (Exh.DC), copy of record of .Rights for the year 2006-2007 (Exh.DD), copy of record of rights of the ownership of mother of accused Muhammad Taj (Exh.DE) and treatment prescription of Muhammad Taj (Exh.DF to Exh.DF/5) in defence evidence.
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. Learned counsel for the appellant has contended that the appellant has been entangled in false case by the police just to show their efficiency; that all the prosecution witnesses are police officials so there is a clear violation of section 103, Cr.P.C. That the occurrence as narrated in the FIR had not taken place at all and that at the time of arrest and during the course of investigation nothing has been recovered from the possession of the appellant and if any that is fake and fictitious and the prosecution has failed to prove the safe custody of the narcotics; that there are material contradictions in the prosecution evidence, which are sufficient to prove that the prosecution has failed to prove its case beyond any shadow of doubt against the appellant, therefore, appellant deserves acquittal.
9. On the other hand, learned Law Officer 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 and that the prosecution has proved its case by producing reliable and independent evidence beyond any shadow of doubt.
10. We have heard the arguments advanced by the learned counsel for the appellant as well as learned Law Officer and have minutely perused the record available on the file.
11. After a careful scrutiny of the materials on record, we come to the conclusion that the prosecution has not established safe custody of recovered substance. There are contradictions in the case of prosecution as to deposit of the sample and case property in the 'Malkhana'. It is the prosecution case that Malik Abdul Razzaq Inspector/SHO (PW-2) apprehended Muhammad Taj appellant in response to a spy information and 15 bottles of liquor and 1400 grams charas was recovered from his possession. At the time of raid Rs,300875/- and a car was also recovered from the appellant. Out of recovered charas 10 grams were separated for sample. Malik Abdul Razzaq Inspector/complainant (PW-2) failed to state that he handed over the case property along with samples to the Investigating Officer Muhammad Nawaz S.I. (PW-6) or the Moharrar Habib Ullah 538/MHC (PW4). The depositions of Muhammad Nawaz S.I./Investigating Officer (PW-6) are also silent on the dimension of handing over of case property. Habib Ullah 538/MHC (PW-2) the Moharrar has stated in his testimony that:--- "Stated that on 28.11.2009 1 was posted at Police Station Kallur Kot as Moharrer. On 10.12.2009 the parcel of said to contain charas weighing 10 grams and 15 parcels of liquor were handed over to Umer Hayat 306/C for onward trnamission to the office of chemical eaminer Rawalpindi intact. "
It would be worth mentioning here that Malik Abdul Razzaq Inspector (PW-2) after receiving case property and samples at the spot, had not stated a single word to who he (PW-2) had handed over. Yet the witness did not clarify whether he had handed over the samples and case property to Habib Ullah 538/MHC (PW-4) or not. Even the deposition of Habib Ullah 538/MHC (PW-4) is also silent to the effect from whom he received the samples which he handed over to Umer Hayat 306/C for onward transmission to the office of Chemical Examiner. Thus, a crucial question crops up in our mind as to where the case property remained and when the sample parcel of charas and case property was deposited in the Malkhana. In absence of the deposition of Malkhana Moharrar to the effect that case property along with sample parcels were received by him, which remained intact and no body tampered with it, the conviction cannot be based and upheld by this Court.
There is, thus, no evidence to connect the chemical examiner report (Exh.PF) with the substance that was seized from the possession of the appellant.
12. Under these circumstances, it is unsafe to base the conviction of the accused on the basis of above testimony of the prosecution witness, which cannot be said to be trustworthy in the facts and circumstances of the case. It becomes manifestly clear that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. On careful examination of entire evidence, we are of the view that the learned Additional Sessions Judge committed grave illegality in convicting the appellant for committing the offence without any legal evidence worthy of credit available on record. Since there was inherent illegality in the matter the conviction cannot be upheld and finding in this regard is liable to be set aside and the same is set aside and consequence whereof, the appeal is accepted and Muhammad Taj appellant is ordered to be acquitted of the charge in case FIR No,472/2009, dated 28.11.2009, offence under Section 9(c) of Control of Narcotic Substances Act, 1997, registered at Police Station Kallur Kot.
13. The appellant is on bail, as Crl. Misc. No,1 of 2010 qua suspension of sentence of appellant was accepted by this Court vide order dated 21.4.2011. Therefore, his surety stands discharged.
Appeal 'accepted.