1. Miss Aalia Neelum, J.--Saeeda Gull son of Matee Ullah, Caste Pathan, resident of Garhi Qamar Din, Postal Colony, Peshawar (Crl.A No. 947 of 2010), Haji Gull son of Muqadar Jan, Caste Kaka Khail, resident of Kaka Khail Auza Adda Bara Khyber Agency and Muhammad Sher son of Mokkal Shah, Caste Kaka Khail, resident of Aka Khail Auza Adda Sher Allah Dad Khail Khyber Agency (Crl.A No. 135-J of 2012), appellants were involved in case F.I.R. No. 350 of 2008, dated 08.05.2008, offence under Section 9(C) of the Control of Narcotic Substances Act, 1997, registered at Police Station Sargodha Road, District Faisalabad and were tried by the learned Additional Sessions Judge, District Faisalabad. The learned trial Court seized with the matter in terms of judgment dated 23.02.2010 convicted the appellants under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced them to undergo imprisonment for life (R.I) each with the direction to pay Rs.
2. 1,00,000/- each as fine and in case of default thereof, further undergo Simple Imprisonment for one year The benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellants. The appellants have assailed their conviction through filing the aforementioned criminal appeals. As both the matters are arising out of one and the same FIR, therefore, we intend to dispose of the same through this single judgment.
2. The prosecution story as alleged in the F.I.R (Ex.PA/1) lodged on the complaint of Muhammad Akmal, Inspector/SHO (PW-3) is that on 08.05.2008 at about 6:40 p.m in the area of Sargodha Road near PMC Hostel, he along with Muhammad Akram SI, Iftikhar Ahmad 1081/HC, Irshad Elahi 2690/HC, Muhammad Shakeel 1527/HC (PW-6), Saif Ullah 3804-HC, Muhammad Iqbal 4402-HC, Muhammad Ashraf 798/C, Muhammad Afzal 2398/C, Muhammad Shehbaz 4881/C and Muhammad Javaid 2870/C were present in connection with checking vehicles. In the meanwhile, one Toyota Car bearing Registration No. 4038-LEC-07 having silver colour came from Lasany Pully and on seeing the police party, the appellants stopped the car and tried to return back. On suspicion, the vehicle was checked and three persons (appellant Crl.A No. 947-10 and Crl.A.No. 135-J-12) were sitting in the car. The accused, who was sitting on the Driving Seat told his name as Saeeda Gull (appellant in Crl.A.No. 947-10), whereas the other one told his name Haji Gull and the third was. Muhammad Sher (Appellants in Crl.A.No. 135-J-12) and on search of vehicle, from underneath seats, 17-packets of Charas (P-1) were recovered. Out of 17-packets, 15-packets were covered with tape of Khaki colour, whereas the other two were wrapped with plastic of green and white colour. From the aforementioned recovered Charas, 12 packets were weighed and each packet was consisted of 1250-grams and the other five packets were consisted of 1000-grams, the total weight of the contraband Charas was 20 kilograms. The appellant Haji Gull told that he had to run the business of Charas and the contraband Charas was for one Javaid and he handed over to him at Pull Jhal Khanuana, Faisalabad. Out of the recovered narcotic substances, the complainant (Muhammad Akmal-Inspector/S.H.O-PW-3) separated 10 grams charas from each packet and prepared samples containing 17/17 parcels for chemical analysis and made into sealed parcels and prepared recovery memo. (Ex.PB). The complainant (PW-3) also took into possession Rs. 1520/- (P- 3), one driving license No. 255476 (P-4), one watch Seiko-5 silver colour (P-5) from one Saeeda Gull through recovery memo. Ex.PD and on personal search of the accused Haji Gull, the complainant-Inspector also recovered Rs. 11,210/- (P6), one I.D Card Photostat (P-7), from the pocket of "Bunyan" and "Qameez". one mobile pone Nokia 1112 (P-8), a wrist watch citizen golden colour (P-9) through recovery memo. Ex.PD and from possession of the accused-Muhammad Sher Rs. 1100/- (P-10), from his "Qameez", coloured copy of I.D Card (P-11) were recovered and taken the same into possession through same recovery memo. and he also took into possession Car bearing Registration No. 4038-LECO7 (P-2) vide recovery memo. Ex.PC. Muhammad Akmal-complainant (PW-3) drafted the complaint (Ex.PA) and sent the same through. Iftikhar Ahmad 1081/HC, Saif Ullah 3802/HC, Muhammad Afzal 2398/C under the supervision of Muhammad Akram, SI to the Police Station for registration of formal F.I.R.
3. 3.Thereafter the investigation was conducted by Dilbar Hussain, SI (PW-4), who on receipt of copy of F.I.R (Ex.PA/1), made rough site-plan (Exh.P.E) of the place of recovery and recorded the statements of the prosecution witnesses under Section 161, Cr.P.C. on reaching the Police Station.
4. Having found the accused guilty, the Investigating Officer prepared report under Section 173, Cr.P.C, while placing their names in Column No. 3 of the Challan and sent the same to the Court of competent jurisdiction.
5. 4.The learned trial Court formally charge sheeted the appellants namely Saeeda Gull (Crl.A No. 947-10) and Haji Gull and Muhammad Sher (Crl. No. 135-J of 2012) on 19.08.2008, to which they pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as six witnesses. Muhammad Tariq, A.S.I/Duty Officer (PW-1), who chalked out formal FIR (Ex.PA/1), Muhammad Nawaz 3061/C (PW-2) transmitted 17 sealed parcels of Charas to the Office of Chemical Examiner Lahore, Muhammad Akmal-Inspector (PW-3) was the complainant of the case, Dilbar Hussain (PW-4) was the I.0 of the instant case, Muhammad Najmul Hassan 1522/HC (PW-5) told that he was posted as "Moharrar" and he handed over 17-parcels of charas to Muhammad Nawaz 3061/C for onward transmission to the Office of Chemical Examiner, Lahore and Muhammad Shakeel appeared as (PW-6).
6. 5.On 22.12.2009, the learned ADPP had given up Muhammad Ashraf 798/C being unnecessary and on 06.01.2010, the learned ADPP tendered in evidence Chemical Examiner report No. 0057156 (Ex.PF) and closed the prosecution evidence.
7. 6.The appellants were also examined under Sections 342, Cr.P.C. wherein the appellants Muhammad Sher and Haji Gull have stated that they wanted to produce evidence in defence, whereas the appellant Saeeda Gull had opted not to lead defence evidence and all the appellants, have deposed that they were not to appear as their own witnesses in terms of Section 340(2), Cr.P.C. in disproof of allegations levelled against them in the prosecution evidence and while replying to a question that why this case against them and why the. PWs have deposed against them, the appellant-Saeeda Gull (Crl.A.No. 947-10) made the following deposition: "It is a totally false and fabricated case against me. The alleged recovery has been planned against me. I am innocent. On the day prior to the registration of the case I was travelling in my own car bearing Registration No. 4038-LEC-07 to Faisalabad. The police of Police Station Sargodha Road intercepted me along with my car and was taken to the Police Station. On the next day Javaid and two unknown persons were brought by the police in the Police Station in custody. The police roped me in this case falsely."
8. Whereas, the appellant Haji Gull (Crl.A No. 135-J-12) made the following deposition: "It is a totally false and fabricated case against me. The alleged recovery has been planted upon me. I and my co-accused Muhammad Sher were earning for my family and selling the house hold articles/crockery of the ladies. On 08.5.2008, I and my co-accused Sher Muhammad were coming in a bus (New Khan Bus Service) and we had irons, juicer machines and other house hold articles and came out from the motor way, the police of P.S Sargodha Road stopped the Bus and a bag was recovered from the Bus with having charas by an unknown person and planted the same upon me and my co-accused. In the Bus, an unknown person aged 40 years was sitting at the seat of opposite side by me and police recovered a black colour bag from the foot of that unknown person. Police deboarded the unknown person from the bus along with me and my co-accused and took to the Police Station. Then we came to know that name of unknown person was Javaid.
9. The police after getting Rs. 2,00,000/- as bribe released the said unknown person and falsely involved me and my co-accused in this case. We are innocent. We have not confessed the guilt, before the police"
10. The appellant-Sher Muhammad (Crl. A.No. 135-J-12) also made the following deposition, which is as under: "It is a totally false and fabricated case against me. The alleged recovery has been planted upon me. I and my co-accused were earning for my family and selling the house hold articles/crockery of the ladies. On 08.5.2008, I and my co-accused Haji Gull was coming in a bus (New Khan Bus Service) and we had irons, juicer machines and other house hold articles and came out from the motor way, the police of P.S Sargodha Road stopped the Bus and a bag was recovered from the Bus with charas by an unknown person and planted the same upon me and my co-accused. In the Bus of opposite seat an unknown person aged 40 years was sitting and the police recovered a black colour bag from the foot of unknown person. Police deboarded the unknown person from the bus along with me and my co-accused and took to the Police Station. Then we came to know that name of unknown person was Javaid. The police after getting Rs. 2,00,000/- as bribe released the unknown person and falsely involved me and my co-accused in this case. We are innocent. We have not confessed the guilt"
11. 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 appellants in the above stated terms.
12. 8.At the very outset, learned counsel for the appellants have contended that the appellants have been implicated in the false case by the police just to show their efficiency; that the occurrence as narrated in the FIR had not taken place at all, which makes the prosecution story one of further inquiry; that all the prosecution witnesses are police officials so there is a clear violation of Section 103, Cr.P.C. and that during the course of investigation nothing has been recovered from the possession of the appellants and the prosecution has failed to prove the conscious knowledge of the contraband in the vehicle because there is no evidence on record to show that the appellants had knowledge of the contraband in secret cavities of the vehicle and mere presence of appellants at the time of occurrence without the conscious knowledge of the contraband possession and lastly prayed that they be acquitted from the charge being falsely implicated in this case.
9. On the other hand, learned Deputy Prosecutor General has opposed the contention raised on behalf of the appellants and stated that in view of the quantity of recovered narcotic substance, the learned trial Court has rightly convicted the appellants and that the prosecution has proved its case by producing six witnesses beyond any shadow of doubt.
13. 10.. We have heard the arguments advanced by the learned counsel for the appellants as well as the learned Deputy Prosecutor General 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 nor prosecution had produced Muhammad Akram S.I. as witness to establish that he (Muhammad Akram S.I.) handed over recovered substance and cash to Muhammad Tariq, A.S.I. (PW-1) as well as the complainant- Muhammad Akmal, Inspector (PW-3) in his Court statement has not deposed that he sent recovered substance and cash through Muhammad Akram S.I. to the Police Station. The complainant-Muhammad Akmal, Inspector (PW-3) deposed during his Court statement that, "I after completing the police proceedings sent the complaint Ex-PA through Iftikhar Ahmad Constable 1081/HC, Saifullah 3804/HC, Muhammad Afzal 2398/C under the supervision of Muhammad Akram, S.I. along with the accused to the Polite Station for registration of FIR and further proceedings." Whereas the Investigating Officer-Dilbar Hussain, S.I. (PW-4) deposed that, "On the same day, Iftikhar Ahmad Head constable handed over to me the accused along with police file." He (PW-4) deposed durnig cross-examination that, "the case property was not handed over to me by any police officials." Contrary to above depositions Muhammad Najmul Hassan, Moharrir, (PW-5) deposed that, "on 08-05-2008 I was posted as Moharrir at P.S. Sargodha Road, Faisalabad. On the same day I.O. of this case handed over to me 17 parcels said to contain charas.
14. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged charas weighing 20 K.G seized from the possession of the accused was kept in safe custody. There is no explanation for this failure to establish safe custody of recovered charas. From time of the seizure at 7:25 P.M on May 8, 2008, till its deposit in the Malkhana on the same day, it is not clear where the samples and the recovered substance were kept. Mere oral evidence of the prosecution witnesses i.e Muhammad Akmal, Inspector (PW-3) and Muhammad Shakeel, H.C.
15. (PW-6) as to the recovery of charas weighing 20 K.G does not discharge the heavy burden of responsibility, which lies on the prosecution. Practically the prosecution took upon themselves the risk of losing the case. In the considered opinion of this Court, the aforesaid inconsistencies and contradictions considered cumulatively do lead to an irresistible inference that the prosecution has not been able to prove safe custody of the recovered substance through material and cogent evidence.
16. 12.The seizure of the alleged narcotic substance is shown to have been made on May 8, 2008, at 07:25 in the evening. The samples taken from the seized substance were handed over to Muhammad Nawaz, Constable (PW-2) by Muhammad Najamul Hassan, H.C. (PW5) for onward transmission to Chemical Examiner Office on May 16, 2008. The samples sent for chemical examination were, however, not deposited at the Chemical Examiner Office on that date but those were deposited on May 17, 2008 by Muhammad Nawaz, Constable (PW-2). From the time of the seizure on May 8, 2008, till the samples' deposit in the Chemical Examiner Office on May 17, 2008, it is not established where these were laid or handed by how many people and in what ways. There is, thus, no evidence to connect the Chemical Examiner report (Exh.PE) with the substance than was seized from the possession of the appellant.
17. 13.The credibility of the members of the raiding team consisting of Muhammad Akmal, Inspector (PW-3) and Muhammad Shakeel, H.C. (PW-6) is also badly shaken by the fact that they have deposed during cross-examination that they after completing all proceedings returned back to Police Station at 8:00 p.m. and they remained busy there in office work. Despite the fact that Dilbar Hussain, S.I. (PW-4), the Investigating Officer, has categorically stated in his evidence that, "I reached at the place of occurrence along with officials. When I reached at the spot there was present Muhammad Akmal Inspector along with his subordinate already present there. I recorded the statements of the PWs." Dilbar Hussain, S.I. (PW-4), also deposed during cross-examination that, "We left the Police Station at 8:00 p.m." During Court statement he deposed that: "When I reached at the spot there were present Muhammad Akmal Inspector along with his subordinate already present there. I recorded the statements of PWs."
18. The said deposition of Muhammad Akmal, Inspector (PW-3) and Muhammad Shakeel, H.C. (PW-6) is contrary to the deposition of Dilbar Hussain, S.I. (PW-4). Further, though according to Muhammad Akmal, Inspector (PW-3), he separated 10 grams from each packet for chemical analysis. But he admitted during the cross-examination that, "we have weights in our investigation box from 20 grams to 2 K.G." The said contradictions in the deposition of the aforementioned police officials cannot be stated to be minor and irrelevant in the absence of positive and material evidence.
14. So after a due consideration of the facts and circumstances of the case and the points discussed we come to the conclusion that the prosecution has not been able to Prove the charge leveled against all the convicted persons. Since there was inherent illegality in the matter the conviction cannot be upheld and finding in this regard is required to be set aside and the same is set aside and as a consequence whereof, Saeeda Gull-appellant (Crl.A No. 947 of 2010), Haji Gull and Muhammad Sher-appellants (Crl.A No. 135-J of 2012) are ordered to be acquitted of the charge in case FIR No. 350 of 2008, of 2005 dated 08.05.2008, offence under Section 9(C) of the Control of Narcotic Substances Act, 1997, registered at Police Station Sargodha Road, District Faisalabad and they are directed to be released forthwith from the Jail, if not required in any other criminal case.