Sardar Muhammad Sarfraz Dogar, J.--Muhammad Zafar, the appellant, was embroiled in case FIR No, 115/2016, dated 05.6.2016, offence under Section 9(c) of The Control of Narcotic Substances Ad, 1997, registered with the Police Station Dhanote, Kehror Pacca, and was tried by the learned Additional Sessions Judge/Judge Special Court Tor CNSA, 1997, Kehror Pacca. The learned trial Court seized with the matter in terms of judgment dated 06.2.2017 convicted the appellant under Section 9(c) of The Control of Narcotic Substances Act, 1997 and sentenced him to undergo R.I. for nine years and six months with the direction to pay Rs,45,000/- as fine and in case of default thereof, further undergo S.I. for seven months and fifteen days. The benefit of Section 382-B, Cr.P.C. was also bestowed upon him.
2. The prosecution story according to the complaint (Exh.PA) of Aziz Ullah Khan S.I. (PW-3), on the basis whereof formal F.I.R. (Exh.PB) was chalked out, is that on 05.6.2016, during investigation of case under Section 9(c) of CNSA, 1997, the appellant disclosed that he has some charas which he has hidden underground in an abandon house situated at Basti Daowala Mauza Jamabrani Wah.
Whereupon, the appellant Muhammad Zafar in police custody led to the Police Party in a abandon house where he himself dig the earth and took out one basket having sticker of Sultan Ghee Company and after removing its cover produced five packets of charas weighing six kilograms and 200 grams. The recovered charas was sealed into parcels for chemical analysis and were taken into possession vide recovery memo. (Exh.PC).
3. After registration of formal FIR (Exh.PB), investigation was also conducted by Aziz Ullah Khan S.I.
(PW-3), who, after completing the investigation declared the appellant guilty of offence and prepared report under Section 173, Cr.P.C. which was forwarded to the Court of competent jurisdiction for trial.
4. The learned trial Court formally charge sheeted the appellant, to which he pleaded not guilty and claimed trial. The prosecution has produced as many as three witnesses. The prosecution has tendered report of Punjab Forensic Science Agency (Exh.PE) in documentary evidence. By closing the prosecution case, the learned trial Court examined the appellant under Section 342, Cr.P.C. wherein he professed innocence. In reply to the question why this case against you and why P. Ws. have deposed against vou, he deposed as under: "My wife filed a private complaint and a case FIR, u/S. 489-F, PPC against local land lord Abbas Uteruh. For not affecting a compromise in the said FIR and private complaint, this case FIR. No, 114/16 u/S. 9-A CNSA P.S Dhanote was registered, against me. No recovery was affected from me.
Place of recovery shown in this case is not owned me. The report of PFSA Lahore Ex.PE does not corroborate the prosecution evidence. There are material contradictions in the statements of witnesses, I.O. stood himself as complainant of this case.
The witnesses being subordinate of I.O deposed falsely against Me.
The appellant neither opted to appear as his own witness in terms of Section 340(2), Cr.P.C. nor produce any defence evidence.
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 appellant in the above stated terms.
8. Learned counsel for the appellant has contended that the appellant has been entangled in false case by the police just to asking his rival party for not effecting compromise, with him; 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; that there are material contradictions in the prosecution evidence, which are sufficient to prove that the prosecution has failed to prove its case beyond any shadow of doubt against the appellant; that the report of PFSA (Exh.PE) fails to provide any support to the prosecution case; therefore, appellant deserves acquittal.
9. On the other hand, learned Law Officer has opposed the contentions 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 reliable and independent evidence beyond any shadow of doubt.
10. We have heard the arguments advanced by the learned counsel for the appellant as well as learned Law Officer and have minutely perused the record available on the file.
11. After careful scrutiny of the materials 'on record, we come to the conclusion that the prosecution has to prove its case beyond any reasonable doubt against the appellant as the depositions of material prosecution are tainted with contradictions, which leads us to formulate an opinion that the prosecution evidence is not up to the mark and no conviction can be based upon it.
12. Aziz Ullah Niazi S.I./complainant (PW-3) while appearing before the learned trial Court categorically deposed that the appellant got recovered from the house five packets of charas total weighing six kilo and 200 grams. Khalil Ahmad 6/HC (PW-2) one of the recovery witnesses also stated almost on the lines as deposed by Aziz Ullah.
Niazi S.I./complainant (PW-3). Contrary to the above, the report of Punjab Forensic Science Agency (Exh.PH) negates the ocular account furnished by the prosecution as it is mentioned in the report (Exh.PH) that on opening the parcel, three physically different types of material were found out of which two parcels contained charas whereas one parcel contained opium. However, the entire depositions of the prosecution witnesses are silent with regard to recovery of opium.
13. In presence of above discussed material contradictions, inconsistencies and discrepancies in the depositions of star witnesses of prosecution and report (Exh.PR), the prosecution has failed to prove its case beyond any shadow of doubt by way of producing independent, reliable and confidence inspiring evidence.
14. There were so many omissions and contradictions in the testimonies of prosecution witnesses affecting the entire fabric of the prosecution case. All the above contradictions ate material in nature and cogitates that the material prosecution witnesses of the case are inconsistent and thus their testimonics lacks intrinsic value and inherent worth and cannot be safely relied upon.
15. Our careful appraisal and independent analysis of the evidence on the record, the prosecution evidence deserves to be rejected, creating an impression in our minds that the prosecution has failed to prove the case against the appellant beyond a reasonable doubt. Keeping all the above possibilities in mind and raising necessary inferences from the facts available on the record we have arrived at a conclusion that a possibility cannot safely be ruled out of consideration regarding the appellant having been falsely implicated in the present criminal case and thus, we have decided to extend the benefit of doubt to the appellant.
16. The crux of above discussion is, that the prosecution has badly failed to prove its case against the appellant beyond any shadow of doubt, therefore, we have inferred the conclusion that the findings of learned trial Court regarding non-reading and mis-appreciation of evidence available on record and are not sustainable in the eye of law, therefore, the appellant deserves acquittal.
17. For the above reasons, this appeal is allowed, the judgment dated 6.2.2017 where appellant was awarded conviction and sentence is set aside, and the appellant is acquitted of the charge. The appellant is in jail. He be released forthwith if not required in any other case.
18. Before parting with this order, it is observed that it is a case of bad investigation. It is sad to notice that the complainant being a trained Sub-Inspector of Punjab Police is unable to identify the narcotics substances as he failed to distinguish the charas and opium, therefore, SP (Investigation) concerned is directed to initiate the proceedings against the complainant/Aziz Ullah Niazi S.I. for bad investigation and submit a report before this Court within a period for fifteen days through Deputy Registrar (Judicial) of this Court.