Ahmad Raza Gilani, J.--Faiz Bakhsh alias Faizoo son of Khan Muhammad faced trial in case FIR No, 73/2015 dated 31.01.2015, under Section 9(c) of Control of Narcotic Substances Act, 1997, Police Station City Lodhran to dislodge the charge under Section 9(c) of Control of Narcotic Substances Act, 1997.
2. trial Court vide judgment dated 25.3.2017 declared Faiz Bukhsh alias Faizoo guilty of having in possession of two shoppers containing 2150 grams Charas which attracts the provisions of Section 9(c) CNSA 1997 for which punishment for the said offence has been provided in Section 9(c) of CNSA. Faiz Bakhsh alias Faizoo 'was accordingly convicted under Section 9(c) CNSA and was sentenced to imprisonment of 5 years and 6 months R.I. with fine of Rs, 25,000/-. In default of fine, convict Faiz Bakhsh alias Faizoo shall further undergo 6 months and 15 days S.I. Benefit under Section 382-B, Cr.P.C. was also extended to him. 3.Convict Faiz Bakhsh alias Faizoo has challenged his conviction and sentence through Criminal Appeal No, 230/2017 before this Court u/S. 48 CNSA 1997.
4.With the assistance of learned counsel representing the appellant and learned Deputy Prosecutor General, record has been perused.
5..Daim Iqbal, SI PW-5 reported the crime on 31.01.2015 at 7.30 p.m. stating therein that when he along with Mushtaq Ahmad, Ali Dilnawaz constable, Allah Rakha and Fazal-e-Miran constables were on patrolling duty, observed one person coming towards them carrying a shopper in his right hand and was identified as Faiz Bakhsh alias. Faizoo but seeing the police party he fled from the scene but while running away that shopper fell down across the road. On search two shoppers containing Charas 1050 grams and 1100 gram were recovered from it. 10 gram Charas was separated from each shopper for its chemical analysis and was sealed in two parcels. Remaining Charas in two shoppers were also sealed separately and were taken into possession vide recovery memo. Exh.PB. Mushtaq Ahmad who was the witness to the recovery of contraband appeared before the trial Court as PW-3 and narrated the same facts which were disclosed by the complainant of the case Daim Iqbal PW-5. However, Mushtaq Ahmad PW-3 categorically stated that he does not remember from where Daim Iqbal, ASI PW-5 took the shopper of Charas nor colour of shopper of alleged Charas. The occurrence took place in winter season and at the time of recovery, darknes's had already prevailed. PW-5 Daim Iqbal had deposed that he had not shown the Charas to Investigating Officer, Hubdar Hussain P W-4 who on the receipt of information had arrived at the place of occurrence. PW-4 Hubdar Hussain, SI deposed that when he arrived at the place of occurrence, Daim Iqbal, ASI PW-5 handed over to him recovery memo. along with the sealed parcels of recovered Charas and of samples which were secured by him. Said Hubdar Hussain, SI PW-4, handed over four sealed parcels of Charas to Moharar for keeping the same in safe custody and for onwards transmission to the PFSA, Lahore. Zahoor Amad, ASI who was posted at that time as Moharar at Police Station City Lodhran appeared in the trial as PW-1, stated that on 31.1.2015 Hubdar Hussain, SI PW-4 Investigating Officer of this case handed over him three sealed parcels said to contain Charas, one of them was case property and other two were specimen of Charas which he deposited in, police Malkhana. On 08.2.2015 he handed over both the sealed parcels to Ghulam Abbas PW-2 for its onwards transmission to the office of PFSA, Lahore. Appellant was arrested by PW-6 Muhammad Saleem on 29.6.2016 who was already in custody in case FIR No, 35/2016 under Section 9(c) CNSA, Police Station Yazman.
6. On review of the entire evidence we are of the view that prosecution has failed to establish that Charas was recovered from the possession of appellant. In view of above noted facts, provisions of Section 6 CNSA are not attracted as it relates to prohibition of possession of narcotic drugs etc. The word possession appear in Section 6 CNSA requires that the prosecution must prove that the accused was knowingly had control of articles in the circumstances which turned out to be the narcotic drugs. Since this was the pivotal charge which the prosecution was duty bound to prove beyond reasonable doubt which it could not, thus whole prosecution case is demolished against the appellant. Other incriminating material in the form of reports from chemical examiner etc. do not carry any evidentiary value under the law in the present situation. We have also observed material contradictions as to the number of parcels made by PW-4 Hubdar Hussain according to whom he handed over four sealed parcels of Charas to Moharar for keeping the same in safe custody and its onwards transmission to the PFSL, Lahore but Zahoor Ahmad, ASI Moharar of the Police Station categorically stated that PW-4 Hubdar Husain, SI handed over him three parcels of Charas. This further added doubt to the prosecution case coupled with another noticeable aspect of the case that PW-5 Daim Iqbal complainant of the case had stated that he had not shown the Charas to the Investigating Officer Hubdar Husain PW-4. Statement of Mushtaq Ahmad PW-3 who is a witness to the recovery proceedings had also weakened the prosecution case as he could not point out place from where the Charas was recovered nor he could describe the colour of the Charas or colour of the shopper containing the Charas. On the basis of the prosecution evidence produced in the trial, it is unsafe to maintain the conviction of the appellant for having in possession narcotic drugs. Noticeably, it was darkness when the said occurrence took place and it was not possible to identify a person. Belated dispatch of samples to PFSA, Lahore for analysis also cast serious question on the prosecution case as to its truthfulness. Rules have been framed under which police officials are required to dispatch samples for analysis, though are directory in nature, but are meant to ensure transparency in the process of investigation and it cannot be left to the wishes of the Investigating Officer. Though complainant of the case Daim Iqbal PW5 had stated in his complaint that appellant being notorious drug paddler was known to them but equally possibility can't be ruled out of false plantation of the drugs on the appellant to show efficiency before their high ups. On words of police officials alone without additional support from corroboratory nature of evidence, Courts always have shown care and caution, so that an innocent person should not become victim. It is invariably the duty of prosecution to bring home the guilt of accused which it has failed to discharge. Under the Law, comprehensive procedure has been provided to collect evidence which Investigating Officers do not observe like in the present case.
7. For what has been discussed and noted above, we are persuaded to extend benefit of doubt to the appellant Faiz Bakhsh alias Faizoo and acquit him of all the charges. He be released forthwith, if not required in any other criminal case.