Qazi Muhammad Amin Ahmad, J.--Mst. Rukhsana Bibi, hereinafter referred to as the appellant, was apprehended on 19-082009 by City Police, Sahiwal within the Mohallah Fareed Gunj situating at a distance of 7 furlongs from the Police Station; on her body search by a lady constable she was found in possession of 1500 tablets of morphine alongwith an amount totaling. Rs,2550/-. Upon her further disclosure, she led to the recovery of hemp weighing 5 KG; the contraband was secured vide Memo (Ex.PB).
Upon conclusion of investigation, she was sent to face trial before a learned Sessions Judge at Sahiwal where on 17-10-2009 she denied the charge and claimed trial. Whereafter prosecution in order to bring home charge against her produced as many as six witnesses besides relying upon forensic reports.
2. Mainstay of the prosecution comprises of Muhammad Akram 277/C (PW-2) and Jaisal Khan ASI, who was examined by the learned trial Judge as (PW-4), both in a unison stated that on 19.08.2009 upon spy information they surprised the appellant, who was in the company of two other person, apprehended the appellant while her companions decamped from the spot and contraband alongwith sale proceed mentioned above was taken by them into . custody. Upon conclusion of prosecution evidence, the appellant confronted prosecution evidence with a detailed reply which is reproduced below: "I am innocent and house hold lady and never indulged in such like eases rather I have fallen a prey of my in-laws on account of civil dispute over property and that dispute is still alive in the Courts, I have filed suit titled; "Mst, Rukheana Bibi etc, vs, Gohar All and others" the appeal against which is pending before Mr, Anwaar Ahmad Qureshi, learned ADJ Sahiwal and is fixed for 15,02,2013, Certified copy of said appeal, order sheets is attached as annexure Ex.DA and Ex.DA/1. My opponents joined hands with the police, Gohar All etc. are influential persons against whom I am litigating for my civil rights who got me arrested from my home through the police officer of their own choice and brought me to the Police Station. Nothing was recovered from me. All was a planted proceedings, I cannot think to behave or act as alleged. I am aged about 55 years and respect the tennents of Islam and fully aware of the curse of God in such like offences and thus cannot think to behave as alleged falsely against me. All the PWs for the same reasons are police officials and no person from the public has appeared or came out to support prosecution case.
There is no independent evidence to establish my involvement"
3.Learned counsel for the appellant contends that from the recovered morphine tablets only a sample of ten tablets and 250 grams hemp were sent to the office of Chemical Examiner which falls short of the requisite quantity for chemical analysis. It has been further argued that in any case morphine tablets allegedly recovered at the instance of the appellant were not weighed rather these were counted. According to the learned counsel to bring home charge under Section 9(c) of the Control of Narcotic Substances Act, 1997, it is not the number which is relevant but it is the weight which attracts the mischief of Section 9(c) of the Act ibid and failure on part of the prosecution has left the actual weight of the contraband to our imagination, in view whereof, even if the prosecution case is accepted in its totality to the extent of morphine tablets, at the most mischief of Section 9(c) of the Act ibid, is attracted to the facts and circumstances of the case which merits to be visited with a lenient view and that there is a delay of 20 days between the seizer of contraband and its subsequent dispatch to the office of Chemical Examiner and that the lady constable who had examined the appellant has not been produced by the prosecution, according to the learned counsel she was not even examined under Section 161, Cr.P.C.
4.Contrarily, learned Law Officer I has supported the impugned judgment. According to him the prosecution has been able to bring home charge against the appellant beyond a shadow of doubt, who is indulging in an activity which is posing threat to the society at large. It has been argued by the learned Law Officer on the strength of Section 29 of the Act ibid that after seizure of the contraband, the appellant was under a statutory duty to explain the circumstances leading to recovery of contraband at her instance.
5.We have heard the learned counsel for the appellant as well as the learned Law Officer and perused the impugned judgment.
6. Prosecution witnesses have not been believed by the learned Sessions Judge insofar as recovery of morphine tablets are concerned; though on technical reasons, nonetheless once the testimony of same set of witnesses was discarded, same could not have been pressed into service in the absence or independent corroboration in support thereof which is lacking, Another glaring aspect of the case is non-examination of Nusrat Mehmood and Shehnaz Akbtar, Lady Constables, who as per prosecution raided the premises where from the appellant was arrested along with the contraband. No duty is cast upon the prosecution to produce all the witnesses to bring home the charge, nonetheless, in the facts and circumstances of the case when the appellant was arrested examination of lady constables would have more convincingly driven the prosecution case to establish the charge; their non-examination. coupled with appellant's acquittal from the charge of possession of morphine tablets opens a window of opportunity where from the lurking doubt on the veracity of the prosecution case is visible, in view whereof and while extending her benefit of doubt; her appeal is allowed; she is acquitted from the charge. She shall be released forthwith if not required in any other case.