AALIA NEELUM, J.---Dilshad Ahmad son of Anwar, Caste Rajput, resident of Anwar Town Islampura, City Phoolnagar, District Kasur, appellant was involved in case FIR No,54 of 2007, dated 05.07.2007, offence under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station City Phoolnagar, District Kasur and was tried by the learned Special Judge Anti-Narcotics/ Additional Sessions Judge, Pattoki. The learned trial court seized with the matter in terms of judgment dated 12.03.2010 convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo imprisonment for life with the direction to pay Rs,1,00,000/- as fine and in case of default thereof, further undergo Simple Imprisonment for one year. The benefit of section 382(b), Cr.P.0 was also extended in favour of the appellant. The appellant has assailed his conviction through filing the instant appeal.
2. The prosecution story as alleged in the FIR (Ex.PA/1) lodged on the complaint (Ex.PA) of Muhammad Akhtar Khan, SI/SHO (PW-7) is that he (PW-7) along with Shamshad Ali, ASI, Tariq Kahwar, ASI (given up PW), Muhammad Shahid, ASI (PW-6), Muhammad Waris 797/C, Muhammad Mansha 468/C and Shakir Hussain 3/C on official vehicle No,8532/ KSB, driven by Atiq-ur-Rehman, 753/C was on patrolling duty in connection with checking of criminals and he (PW-7) received spy information that two narcotics peddlers namely Nasir Javed (since PO) and Dilshad Ahmad appellant were selling charas to their specific customers near the house of Nawab Pehlwan and if immediate raid was conducted then heavy quantity of narcotics substance would be recovered.
He (PW-7) along with above mentioned police officials on official vehicle reached there and on the signal of Informer they saw that Nasir Javed (since PO) and Dilshad Ahmadappellant were selling narcotics substance. He (PW-7) along with police officials encircled both the accused, who on seeing the police party tried to run away but the appellant-Dilshad Ahmad was arrested at the spot, whereas co-accused Nasir Javed (since PO) succeeded to flee away. On search of the appellant, contraband charas four packets (P-1), which were tied with his "Shalwar" were recovered along with sale proceed worth Rs,2150/- (P-2). During interrogation, the appellant-Dilshad Ahmad made disclosure and also got recovered 29 packets (P-3), which were concealed in the earth in an iron trunk near the wall and the same was taken into possession through recovery memo (Ex.PW7/2), which was found to be 01-maund and 1-1/4 kilograms. Out of the recovered substance (P-1 and P-3), the complainant separated 05/05-grams each for chemical analysis. The complainant (PW-7) drafted complaint (Ex.PA) and sent the same through Shakir Hussain 3/C to the Police Station for registration of the formal FIR (Ex.PA/1).
3. Akhtar Khan, S.I/SHO (PW-7), who on receipt of copy of FIR, prepared the recovery memo (Ex.PW7/2 = Ex.PW6/1) and also prepared the site plan (Ex. PW7/3) of the place of recovery.
Thereafter, the investigation of this case was entrusted to Qasim Ali, SI/I.O. (PW-5), who reached at the spot, where Akhtar Khan, SI (PW-7), Muhammad Shahid, ASI (PW-6) and Tariq Khawar (given up PW) were present. Akhtar Khan, SI/SHO (PW-7) prepared the site plan (Ex.PW7/3) in his (PW-7) presence and he (PW-7) also prepared the recovery memo said to contain charas and sale proceed, which is correct. He (PW-7) arrested the appellant-Dilshad Ahmad, got warrant of arrest of co-accused-Nasir Javed (P.O.), who was later on, declared as proclaimed offender and also recorded the statements of the prosecution witnesses under section 161, Cr.P.C. Having found the accused guilty, the Investigating Officer (PW-5) prepared report under section 173 Cr.P.C., while placing his name 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 01.07.2008, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as seven witnesses. Muhammad Akhtar, SI/SHO (PW-7) is the complainant of the case, whereas, Qasim Ali, S.I (PW-5) is the Investigating Officer of the case, Riasat Ali 574/HC (PW-1) deposed that on 05.07.2007, he (PW-1) performed his duty at Police Station City Phoolnagar and received complaint (Ex.PA) sent by the complainant (PW-7) through Shakir Hussain 3/C and on the basis of which, he (PW-1) drafted formal FIR (Ex.PA/1) without any addition or omission, Muhammad Akram 445/HC (PW-2) deposed that on 05.07.2007, the complainant (PW-7) handed over 33 parcels said to contain charas to him for keeping the same in Malkhana for safe custody along with sale proceed worth Rs,2150/- (P-2) and on 16.07.2007, he (PW-2) handed over sealed parcels of sample intact to Sharafat Ali 450/C (PW-3) for its onward transmission in the Office of Chemical Examiner, whereas 29 parcels were received in the Office while four were returned back with objection.
Sharafat Hussain 450/C (PW-3) is the witness, who deposited 29 parcels of the case property in the Office of Chemical Examiner, whereas four sealed parcels were returned back with objection.
Muhammad Shahid, AS1 (PW-6) is the witness of the recovery.
5. On 04.03.2010, the learned Deputy District Public Prosecutor gave up PW Tariq Khawar, ASI being unnecessary and closed the prosecution evidence after tendering the report of Chemical Examiner (Ex.PP/1) relating to four packets and (Ex.PP/2) relating to 29 packets.
6. In defence evidence, the appellant has produced Lala Din son of Kareem Bukhsh as DW-1, Syed Zafar Ali Shah son of Syed Twangar Hussain Shah as. DW-2, Irshad Hussain son of Ghulam Hussain as DW-3 and Zafar son of Bhawal as DW-4.
7. The appellant was also examined under section 342, Cr.P.C., wherein he opted to lead defence evidence but not to appear as his own witness in terms of section 340(2), Cr.P.C. in disproof of allegations levelled against him (appellant) and while replying to a question that why this case is against him and why the PWs have deposed against him, the appellant Dilshad Ahmad made the following deposition:-- "The complainant in this case is Muhammad Akhtar, SI who was SHO of Thana City Phoolnagar on 05.7.2007. The other PWs were his subordinates. The PWs are contradictory on material questions. Investigation was never made by an independent officer higher in rank than the complainant-SHO. Qasim All SIPW5 stated that when he reached the spot, the recovery memo, the complaint and even the site plan had already been prepared by the SHO/complainant himself. The complainant appearing as PW-7 firstly stated that the aforesaid documents were prepared by him in his own hand but when the court asked him to write down the contents of the said documents in the Court, the witness with a lump in throat, admitted that writings on the said documents were in the hand of Shamshad Ali, AS!. The entire evidence is false."
8. 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.
9. At the very outset, learned counsel for the appellant has contended that the appellant has been involved in the 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 during the course of investigation nothing has been recovered from the possession of the appellant and the prosecution has failed to prove the safe custody of the charas and lastly prayed that he may be acquitted from the charge being falsely implicated in this case.
10.On the other hand, learned Deputy Prosecutor General 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 seven witnesses beyond any shadow of doubt.
11.We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy Prosecutor General and have minutely perused the record available on the file.
12.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 the prosecution as to deposit of the samples and case property in the "Malkhana". It is the prosecution case that on 05.07.2007, on spy information, Muhammad Akhtar, S.I (PW-7) the complainant conducted raid near the house of Nawab Pehlwan. On arrival at the place of occurrence Nasir Javed, the accused fled away whereas Dilshad Ahmad the accused-appellant was apprehended and the person of Dilshad Ahmad-the accused-appellant was searched.
Whereupon four packets of charas tied with the 'shalwar' of the accused was recovered along with amount of sale proceeds Rs,2150/-. On interrogation by Muhammad Akhtar, S.I (PW-7)-the complainant, Dilshad Ahmad the accused-appellant also got recovered charas 29 packets concealed in the earth in the iron trunk near the wall abutting the house of Nawab Pehalwan. All the articles recovered from different places were taken into possession through seizer memo (Ex. PW- 6/1) by Muhammad Akhtar, S.I (PW-7)-the complainant. From the contents of the complaint (Ex.PA) and FIR (Ex.PA/1) it reveals that Muhammad Akhtar, S.I. (PW-7) the complainant after apprehending the accused conducted investigation before preparation of the complaint (Ex. PA). Muhammad Akhtar, S.I. (PW-7) the complainant stated during examination-in-chief that, "During interrogation, Dilshad Ahmad disclosed and got recovered charas 29 packets concealed in the earth in an iron trunk near the wall abutting the house of Nawab Pehalwan. The entire charas was weighed and was found to be one maund and 1-1/4 kilograms. From all the packets of charas, samples 5-5 grams were separated for chemical examination. The samples and the charas recovered which are respectively P-1 and P-3 and P-4. Raqum wattaq was also secured as P-2. I prepared the complaint Ex.PA-Ex.PW7/1. Then I prepared the recovery memo Ex.PW7/2 = Ex.PW6/1. As the I.0 was ate for two hours. I also prepared the site plan Ex.PW7/3. These documents are in my hand and bear my signatures." Muhammad Akhtar, S.I. (PW-7) the complainant also admitted during cross-examination that he conducted investigation whereupon the accused had made disclosure. He (PW-7) deposed that, "During investigation at the spot held' by me, the accused himself of his own disclosed that he could get recovered more charas buried in a plot." It indicates that on receiving the information he (PW-7) conducted raid and got recovered four packets of charas and soon after recovery he (PW-7) had not prepared complaint (E.PA) and conducted investigation at spot. From the evidence of Muhammad Akhtar, S.I. (PW-7)-the complainant it reveals that the complainant (PW-7) had investigated the case prior to lodging of the FIR, which renders the whole of the prosecution version doubtful. Qasim Ali, S.I. (PW-5)
Investigating Officer deposed during examination-in-chief that, "Before my reaching the spot, Muhammad Akhtar Khan S.I. had already prepared the complaint Ext.P.A, recovery memo and the site plan of the place of occurrence. The charas was weighed in my presence by the SHO. The complaint had already been sent to Thana by the SHO Akhtar Khan before my arrival at the spot.
The FIR was available with me before reaching the spot. It was my duty to have prepared the recovery memo as also the site plan but in this case, those documents were already prepared."
(Underline for emphasis) From the above, it is clear that Muhammad Akhtar, S.I. (PW-7)-the complainant is not justified in conducting investigation before registration of FIR and prepared all necessary documents relates to different steps of investigation. In the circumstances, the 'complainant has committed grave error of law in proceeding to conduct an investigation before registration of the FIR and such investigation without registration of the FIR is impermissible in law vitiating the entire proceedings.
13. Another important aspect of the case which cannot go un-noticed is that in the complaint (Ex.PA) and recovery memo (Ex.PW-6/1 and PW7/2) there are numerous interpolation/overwriting.
We are of the considered view that the discrepancies/overwriting/interpolations as admitted by the prosecution witnesses and also observed by us casts a serious doubt on the genuineness of the prosecution case. Qasim Ali S.I. (PW-5)-the investigating officer admitted during cross- examination that, "It is correct that on complaint Ex.PA, the offence was firstly written as "9-A" and then it was made as "9-C". In recovery memo likewise, there was interpolation where the weight of the charas was shown. I do not deny or accept if the writings on the aforesaid three documents were in the hands of Muhammad Akhtar Khan or somebody else. I cannot say as to what was the weight of four packets which were recovered from the possession of the accused."
Muhammad Shahid Bhutta, ASI (PW-6) also deposed during cross-examination that, "I see the recovery memo Ex.PW-6/1. Cuttings encircled by the court were present at the time when I signed the recovery memo, again said if were present or not I do not remember. It is correct that the hand writing of Ex.PA and Ex.PW-6/1 is the same. Signatures on Ex.PA and on Ex.PW-6/1 by the SHO are with pressing hand. (the ink and the pen used for signature is visibly different). It is correct that on Ex.PA, firstly 9-A CNSA was written and then it was made as 9-C CNSA by the Moharrar. Separate recovery memo of 'four packets firstly recovered from the accused was not prepared by us." Muhammad Akhtar, S.I (PW-7)-the complainant admitted during cross- examination that, "It is correct that the words "1 1/4 kilograms" P-3 encircled by the court were over written." Muhammad Akhtar, S.I (PW-7)-the complainant further deposed during cross- examination that, "I had not mentioned if weighing scale was available with me or it was procured from any other means. (At this stage, the PW is directed to write down the complaint or the recovery memo so as to compare his hand writing to see if his statement that those documents were prepared in his own hand, could be testified). With a lump in throat, the witness admits that writing on Ex.PA, Ex.PW-7/2 and Ex.PW-7/3 are not in his hand. These writings were in the hands of Shamshad ASI." The complaint (Ex.PA) and recovery memo (Ex.PW- 6/1 and PW-7/2) have been interpolated regarding weight of recovered substance and nature of offence, and if interpolation/ overwriting excluded from the rest of the portion of the memo, the memo nowhere speaks to be a case of recovery holding the appellant liable under the Control of Narcotic Substances Act, 1997 and same casts a serious doubt on the genuineness of the prosecution case.
14. Now coming to the next question as to whether the prosecution has established safe custody of recovered substance and parcel of sample. 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 and parcel of sample. Muhammad Akram, 445/HC (PW-2) deposed during his Court statement that Akhtar Khan SHO (PW-7) handed over to him 33 sealed parcels said to contain Charas of case property along with 33 parcels of samples for keeping them in safe custody. He (PW-2) further deposed during his court statement that on 16-07-2007 he had handed over 33 sealed parcels of samples to Sharafat Ali Constable for onward transmission to the Office of Chemical Examiner. Muhammad Akram, 445/HC (PW-2) further deposed that, "29 parcels of samples were received in the office of Chemical Examiner while four were received back under objection. On 03.08.2007 the objections were removed and the said parcels were again handed over to Constable Jamil." However, Muhammad Akhtar, S.I. (PW7)-the complainant has not deposed that he (PW-7) handed over sealed parcels of samples and parcels of remaining recovered substance to Muhammad Akram, 445/HC (PW-2). Contrary to the deposition of Muhammad Akram, 445/HC (PW-2), Muhammad Akhtar, SI (PW-7)-the complainant deposed during examination-in-chief that, "Then I.0 Qasim Ali, SI came at the spot. He interrogated us. He received the accused Dilshad present in the court, took into possession recovered charas, rakum wattaq and the samples of the charas. The I.0 inspected the spot and examined the PWs including myself." He (PW-7) reaffirmed this fact during cross-examination and deposed that, "The case property was taken to the P.S. by the I.0 Qasim Ali, SI." Whereas Qasim Ali, S.1. (PW-5)-the investigating officer, deposed during examination-in-chief that, "Akhtar Khan, SI/SHO had handed over the case property to Moharrar Muhammad Akram. Entry in Register No,19 was made by Moharrar." There is no explanation for this failure to establish safe custody of recovered charas and parcels of samples drawn from" the seized charas. The sealed parcels of samples and parcels of remaining recovered substance received by Muhammad Akram, 445/HC from Muhammad Akhtar, SI (PW-7)-the complainant were not related to case in hand. Mere oral evidence of the prosecution witnesses' i,e, Muhammad Akhtar, SI (PW7)-the complainant, Muhammad Shahid Butta ASI (PW-6) and Qasim Ali, S. I. (PW-5) as to the recovery G of charas weighing one maund and 1-1/4 kilograms does not discharge the heavy burden of responsibility, which lies on the prosecution. Practically the prosecution took upon them 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 and parcels of samples through material and cogent evidence. The said contradictions in the deposition of the aforementioned police officials also cannot be stated to be minor and irrelevant in the absence of positive and material evidence. In other words, there is strong doubt as to whether the sample analyzed by the chemical examiner was taken out of same material that was allegedly recovered from the accused during the search.
There is, thus, no evidence to connect the chemical examiner reports (Ex.PP/1 and Ex.PP/2) with the substance that was seized from the possession of the appellant.
15. Another vital factor is the material allegedly sent from the police station and the material allegedly delivered at the Chemical Examiner to Government of Punjab Lahore. As per chemical examiner reports (Ex.PP/1 and Ex.PP/2) it reveals that the docket of the sealed samples were issued and dispatched by the Excise and Taxation Officer, Kasur, which was deposited with the office of the Chemical Examiner to Government of Punjab Lahore on 16-07-2007 and 03-08-2007 respectively. Muhammad Akram 445/HC (PW-2) during his testimony had specifically stated that, "On 16.07.2007 I handed over intact 33 samples of charas to Sharafat All Constable for depositing the same in the Office of Chemical Examiner." He (PW-2) further stated that, "On 03.08.2007 the objections were removed and the said parcels were again handed over to Constable Jamil." Sharafat Ali, 450/C during his testimony had specifically stated that, "On 16.7.2007 while posted at Thana City Phool Nagar, Moharrar Muhammad Akram had handed over to me 33-sealed parcels for depositing the same in the office of Chemical Examiner Punjab, Lahore. On the same day, I deposited 29-selaed parcels in the said office whereas 4-selaed parcels were returned to me on account of some objection by the officials of the said office, which I handed over to the Moharrar Thana on the same day on my return." The said contradiction in the deposition of afore-mentioned police officials and chemical examiner reports (Ex.PP/1 and Ex.PP/2) cannot stated to be minor and irrelevant. The prosecution has badly failed to connect the chemical examiner reports (Ex.PP/1 and Ex. PP/2) with the allegedly recovered substance from the possession of the appellant. It remains unanswered as to what happened to the samples handed over by Muhammad Akram 445/HC (PW-2) to Sharafat Ali, 450/C. Merely on the basis of bald statements of police officials, it cannot be assertions that samples were sent to the Chemical Examiner to Government of Punjab Lahore. In such eventuality it is not possible to uphold and sustain the judgment of conviction and sentence against the appellant. Accordingly the appellant deserves to be given Benefit of doubt and findings in this regard to be set aside and the same are set aside.
16. So after a due consideration of the facts and circumstances of the case and the points discussed above we come to the conclusion that the prosecution has not been able to prove the charge leveled against the appellant. 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, the appeal is accepted and the appellant Dilshad Ahmad son of Anwar is ordered to be acquitted of the charge in case FIR No,54 of 2007, dated 05.07.2007, offence under section 9(C) of the Control of Narcotic Substances Act, 1997, registered at Police Station City Phoolnagar, District Kasur. The appellant-Dilshad Ahmad is ordered to be released forthwith, if not required in any other case.