' SHAUKAT AZIZ SIDDIQUI, J.---Instant appeal under section 48 of the Control of Narcotic Substances Act, 1997 is directed against the judgment dated 24.03.2016, whereby, learned trial Court (Judge Special Court CNSA, Islamabad) convicted Appellant and sentenced him to undergo three (03) years RI and a fine of Rs. 50,000/-, in default of payment to further undergo three (03) months S.I, in case FIR No. 332 dated 07.09.2015 offence under section 9(c) of CNSA, 1997, registered at Police Station Ramna, Islamabad. Benefit of section 382-B, Cr.P.C. Has been extended to the Appellant.
2. Learned Counsel for Appellant submitted that most improbable story has been introduced by the local Police in the FIR (Ex: PW-2/A), that there are material contradictions in the statements of Prosecution Witnesses, and that substantive illegalities were committed by the local Police during the course of investigation, which were exposed by defense in trial, but learned trial Court extended the benefit of doubt to prosecution, instead of accused/Appellant, which approach is contrary to the dictums laid down by the superior courts of the country. Learned Counsel concluded his arguments by mentioning date of arrest of Appellant i.e. 07.09.2015 with the contention that Appellant has already undergone half of the sentence. In support of his submissions learned Counsel placed reliance on (2016 YLR 1093).
3. Conversely, learned State Counsel submitted that huge quantity of Charas Garda (URDU TEXT) has been recovered from Appellant and that there is no mala fide on the part of local Police to falsely implicate Appellant and foist upon him huge quantity of contraband. Learned State Counsel added that prosecution successfully proved its case on the basis of consistent, reliable and confidence inspiring evidence, therefore, appeal may be dismissed as the learned trial Court has already taken a lenient view.
4. We have heard the learned counsel for Appellant as well as learned State Counsel and perused the impugned judgment by appreciating the evidence adduced by the Prosecution.
5. For convenience substantive part of Complaint (Ex: PD) is being reproduced here-in-below:-- {{URDU TEXT}} ' As is apparent from above, the Prosecution case is that 4,400 Grams Charas Garda was recovered, which was in shopping bag lying in the lap of accused/Appellant and out of recovered Charas 4 sealed parcels of 20 Grams each, were separated for Chemical Analysis and rest of Charas Garda was put into one sealed parcel. It is the case of prosecution itself that recovered Charas Garda was in four packets. Before proceeding further we would like to highlight following points from the Complaint EX: PD:-- I. Four Bags allegedly containing Charas Garda were not measured in weight separately, therefore, weight of each packet is not provided; II. There is no mention that why, after separating 20 grams each, from four packets, rest of Charas which comes to 3,600 grams was put only in one parcel;
6. In order to prove the charge against the Appellant the I.O./Complainant of the case Mahammad Ishaq, Sub-Inspector appeared as PW-5, who in his examination-in-chief stated that:-- "I got spy information that red coloured Suzuki Khyber Car bearing Registration No. GAG-8004 coming towards Peshawar in which there is a huge quantity of narcotics".
' The I.O. In his statement did not state about search of vehicle; rather stated that the person who was sitting in the driving seat, having shopping bag in his lap, was alighted and on search of that shopping bag Charas Garda was found in four packets. The I.O. Mentioned about the color of tape, through which said packet were wrapped, as under:-- "Packets were wrapped with yellow tape." (Emphasize provided by us).
' A With regard to weighting of alleged Chars Garda the I.O. Stated as under:-- "On weighing of recovered packet, recovered Charas Garda was found to be 4,400 grams. I separated 20/20 grams garda charas from each packet as sample for chemical examination and prepared 5 sealed parcels. Four were sample parcels and one was case property' which is stamped as M.A. Which I took into possession vide recovery memo Ex:P.A and took signatures of marginal witnesses."
7. We examined Ex:PA, PB, PC (Recovery Memos) and Ex: PD (Complaint) and are constrained to observe with great concern and pain that memos and complaint are not in one handwriting, 'rather of two different persons. The I.O. Of the case on oath, lied before the learned trial Court that Ex: PA, PB, PC (Recovery memos) and Complaint (Ex: PD) were prepared by him. But learned Judge, Trial Court, failed to observe this material illegality despite the fact that it was flouting on the surface of record. Muhammad Imran Munir, ASV PW-3, who is marginal witness of recovery memos made following statement about the recovery memos:-- "I.O. Prepared recovery memo of Charas Ex.P.A which bears my signatures as Ex.P.A/1. Mian Khurram, A.S.I. Also attested the same. I.O. Also conducted . Personal search of accused, a Q-Mobile phone coloured black which was having SIM No. 03025131639 was also recovered which I.O. Took into his possession vide recovery memo Ex.P.B. I, along with Mian Khurram, ASI attested the same. I.O. Also took into his possession car bearing registration No. GAG/8004, Suzuki Khyber, coloured Red vide recovery memo Ex.P.C., I along with Mian Khurram, ASI attested the same."
Carbon copy of FIR, contents of which are not readable, has been exhibited as Ex:PW-2/A without any application of C secondary evidence. There is no explanation about the non-production of original FIR.
8. Another important consideration with regard to weighing of allegedly recovered Charas Garda at the place of occurrence emerges from the Statements of PW-5/I.O. Of the Case and PW-3/M.
Imran Munir, ASI, who is marginal witness and claimed that he was present on spot at the time of recovery. Relevant portion of statements of both the witnesses is reproduced hereunder:- "PW-5: I had not borrowed any weighting scale from any shop keeper, however, I have taken the weighing scale from "Phairiwala". I weighed all the recovered packets at once. Each packet was containing one piece. Recovered charm was wrapped in packets not in littar form. If any witness says I borrowed from any shop keeper it would be false."
' PW-3: The shop keeper from whom the I.O. Borrowed the weighing scale/Tarazo I.O. I do not remember the name of said shop keeper. I do not know the source for calling the shopkeeper for borrowing the weighting scale. The scale was computerized. I did not know the weighting capacity of said scale. The weighing scale was in working condition according to my knowledge. I have not seen the weighing scale which was used in that occurrence."
This clearly shows that Complainant/1.0 of the case was without investigation bag, as scales are integral part of I.O's bag. It appears more strange that despite advance spy information I.O. Went to the place of recovery without scales. We noted that PWs.4 and 5 have remarkably contradicted each other on the point of scale and manner in which proceedings were conducted. PW-4 claimed that computerized scale was fetched from nearby shopkeeper, on the contrary, Complainant's/I.O.
(PW-5) stance is that he took scale of (URDU TEXT). If assertion of PW-5 and stance of PW-4 are kept in juxtaposition, unfortunately none is confidence inspiring. It is difficult for us to believe that any "Pheriwala" would be carrying a computerized scale. It is also a disguise that no cash, even Rs.
100/- has been shown as recovered from the personal search of accused/Appellant.
9. As per Complaint (Ex:PD) and statements of PW-4 and 5 weight of each packet allegedly containing recovered. Chars sent for chemical analysis was 20 grams each. The I.O. Of the case during cross-examination took a stance that:- "If the PFSL record shows that the sample received by him was not of 20/20 grams, the said sample is not related with this case."
' In order to make assessm ent of above claim, the narcotics analysis report (Ex:PF) prepared by Punjab Forensic Science Agency require appreciation, provides, following data:-- {{TABLE}} "Item No. Description of Evidence 01-04 Four sealed parcels each containing approximately 20 grams suspected Charas.".
Results and Conclusion Item # 01 07.81 grams of blackish brown resinous material in sealed parcel contains Charas.
Item #02 22.17 grams of blackish brown resinous material in sealed parcel contains Charas.
Item #03 12.12 grams of blackish brown resinous material in sealed parcel contains Charas.
Item #04 12.81 grams of blackish brown resinous material in sealed parcel contains Charas. {{TABLE}} Description of evidence in report is always provided on the basis of application (URDU TEXT) sent by SSP, whereas, result and conclusion are drawn on the basis of actual weight and nature of items received for analysis, however, without entering into this controversy whether items mentioned under Results and Conclusion in Ex: PF were sufficient for the purpose of analysis or not, we are convinced that samples were not prepared as a result of weighing process rather by adopting some other method.-
10. The learned Trial Court in para-13 of the impugned judgment observed as under:-- "13. I have also gone through the FSL report which also prima facie (underlining provided) confirming the samples as garda charas and in the light of the expert report and the huge quantity of charas recovered from the accused person by the police, I am of the considered view that there is no such mala fide appearing on the face of the case by the police in this case and of view that in fact such recovery is effected from the present accused person. Under these circumstances, it appears that the prosecution has successfully proved its case beyond shadow of doubt with tangible, substantial and cogent evidence against the present accused. Hence my findings on this point is positive.".
' It is questionable that, how at the time of final judgment, learned trial Court drew prima facie opinion instead of conclusive findings.
11. Suzuki Khyber bearing Registration No. GAG-8004 was a case property, taken into possession vide recovery memo Ex:PC but same was not produced during trial, therefore, learned Judge did not pass any final order in this regard. Now, question arises that, when Prosecution failed to produce most important limb of its evidence/story, how could worthiness of. Prosecution Case be established.
12. It is an admitted fact that car taken into possession vide recovery memo (Ex:PC) was given on Superdari to Firdaus Khan son of Mir. Ali Khan claiming himself to be the owner of the same by Mr. Hafeez Ahmad, Judicial Magistrate 1st Class, Islamabad (West). It is amazing to observe that learned Magistrate at the time of exercising the jurisdiction, which was not vested in him, gave the vehicle on Superdari to above mentioned person despite the fact that same was not in his name as is evident from this sentence of order dated 08.102015:-- "Petitioner is directed to transfer the vehicle in his name within 30 days otherwise Superdari Nama shall stand cancelled.".
' The learned trial Court should have directed the production of vehicle and taken notice that learned Magistrate without lawful authority and jurisdiction gave Superdari of the case property.
13. Furthermore, despite our best efforts we could not find any reference whether case property exhibited as P-1 relating to case FIR No. 332/2015 was ever produced before the Court, and in whose statement same got exhibited. More importantly I.O. Of the case (PW-5) during his cross- examination admitted this aspect in the following words:-- "It is correct that the case property/charas produced in the Court in one parcel and on the said parcel there is mentioned as FIR No. 333/2015 and the same is written by Moharar with red ink. It is also correct that the said FIR number is re-written as FIR No. 332 with blue ink"
' There is no explanation that why' parcel contained two FIR numbers, 333 in red ink and 332 in blue ink. Admission by I.O. (PW-5) with regard to writing of particulars of Moharrar is sufficient for us to believe that parcels were prepared at Police Station. And not at the spot.
From the evidence on record it is not established that investigation of the case was entrusted to Complainant (PW-5) by the S.H.O., rather PW-5 himself assumed the role of I.O. Cum Complainant.
14. It is well settled law with the mandate of the dictums of the superior courts of the country that to earn benefit of doubt by an accused person single circumstance is sufficient, what to talk of incurable illegalities, glaring discrepancies, and major contradictions which have been found in the present case. In our estimation very foundation of this case was laid by the local Police on distortion of facts, concealment of the truth, and result of irrelevant considerations. It is staggering that I.O. Of the rank of Sub-inspector would make false statement on oath, before the learned trial Court, still escaped notice of the learned Judge. We are in agreement with the learned Counsel for Appellant that learned trial Court wrongly withheld benefit of doubt from accused/Appellant, which he earned in trial on number of circumstances. We are fortified in our opinion by the case law reported as (2015 PCr.LJ 158), (2014 PCr.LJ 354), (2009 SCM R 230) and (2008 SCM R 1221).
15. For what has been discussed above, we are convinced that the impugned judgment passed by the learned trial Court is rarity, unlawful, result of non-application' of judicial mind and misreading of evidence, therefore, same is hereby set aside. Appellant is directed to be released forthwith, if not required in any other case.
16. Let copy of this judgment be forwarded to the Inspector General, ICT Police, in order to apprise him with the standard of police investigation and conduct of police officials during trial.