Miss Aalia Neelum, J.--Shafqat Ali son of Sabir Ali, Caste Bhatti, resident of Mohallah Mian Sahib, Qila Didar Singh, District Gujranwala, the appellant was involved in case F.I.R. No, 207 of 2010, dated 01.09.2010, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Saddar Lalamusa, Tehsil Kharian, District Gujrat and was tried by the learned Additional Sessions Judge, Kharian. The learned trial Court seized with the matter in terms of judgment dated 23.09.2011, convicted the appellant under Section 9 (C) of the Control of Narcotic Substances Act, 1997 and sentenced to undergo imprisonment for life with the direction to pay Rs, 1,00,000/- as fine and in case of default thereof, to further undergo rigorous Imprisonment for 06 months. Feeling aggrieved by the judgment of the learned trial Court, Shafqat Ali-appellant assailed his conviction through filing of the instant appeal.
2. The prosecution story as alleged in the F.I.R (Ex.PA/1) lodged on the complaint (Ex.PA) of Liaqat Ali S.I, (PW-4) is that on 01.09.2010, he (PW-4) along with Sabir Hussain SI (PW-5), Sultan Mahmood, ASI (PW-3), Mudassar Javed 2493/C, Ashfaq Ahmad, 2971/C, Muhammad Yaseen 1897/C (given up PW), while on official vehicle bearing Registration No,4801/GTG, driven by Muhammad Asif 1709/C, was present at Kullaywal Syedan in connection with patrolling duty, where he (PW-4) received spy information that two persons while boarding on Suzuki Cultus Car bearing Registration No, 688/STS were coming from Gujrat side and if the same was stopped and checked then charas could be recovered. Upon the information of the Informer, a picket was established near Chak Murtaza G.T.
Road in front of AlFateh house. After some time, the above said vehicle arrived from Gujrat side, which was stopped and the person, who was sitting in the front seat disclosed his name as Shafqat Ali, who later on alighted from the vehicle and during search, ten packets with the name of "Kawa"
Miclone containing 10-kilograms of charas (P-1) were recovered under the foot of the appellant on the floor of the car, while one" packet with the name of "Coffee" containing one kilogram opium (P- 2) was recovered, which were token into possession vide recovery memo. (Ex.PB). Out of the recovered substance 10/10 grams from each packet was separated for chemical analysis. During further search of the appellant, one mobile phone (P-3) and Rs,65/- (P-4) were recovered from his possession through recovery memo. (Ex.PC). The complainant (PW-4) drafted complaint (Ex.PA) and sent the same to police station ,through Ashfaq Ahmad 2971/C for registration of formal FIR (Ex.PA/1).
3. Thereafter, the investigation was entrusted to Sabir Hussain, SI (PW-5), who recorded the statements of recovery witnesses under Section 161 of Cr.P.C. He (PW-5) sent the appellant to 'udicial lock up by the order of the learned Area Magistrate. Having found the accused guilty, the Investigating Officer (PW-5) prepared eport under Section 173, Cr.P.C., while placing his name in Column 0.3 of the Challan and sent the same to the Court of competent jurisdiction.
4. The learned trial Court formally charge sheeted the appellant on 13.11.2010, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as six witnesses. Sajjad Ahmad, ASI (PW-1) drafted the formal FIR (Ex.PA/1) without any addition or omission, Imtiaz-ul-Haq 842/HC (PW-2) is Moharrar of the Police Station, Sultan Mahmood, ASI (PW3) is the recovery witness, Liaqat, Ali, SI (PW-4) is the complainant of the case, Sabir Hussain, SI (PW-5) is the Investigating Officer of the case and Nasrar Ullah Khan 147/C (PW-6) deposited the parcel of samples in the office of Chemical Examiner, Lahore intact.
5. On 30.07.2011, the learned DDPP gave up PW-Muhammad Yaseen 1897/C being unnecessary and closed the prosecution evidence after tendering the report of Chemical Examiner (Ex.PE and Ex.PF).
6. The appellant was also examined under Section 342 Cr.P.C, wherein he neither opted to produce defence evidence nor opted to appear as his own witness in terms of Section 340(2) Cr.P.0 and while replying to a particular question that why PWs had deposed against him, the appellant- Shafqat Ali made the following deposition: "I was traveling in a bus and due to exchange of hot words with Liaqat, SI, he took me into custody and when I had shown my intention to move against him before superior police officials and Court of law, he had made me an escape goat in this case. All the PWs are police officials and they had deposed falsely only to oblige Liaqat, SI. I had falsely been implicated in this case."
7. After hearing the arguments advanced by the learned counsel for the appellant as well as the learned DDPP, 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. The learned counsel for the appellant has contended 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 if any that is fake and fictitious and lastly prayed that the appellant may be acquitted of 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 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 six witnesses beyond any shadow of doubt.
10.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.
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. There are contradictions in the case of the prosecution as to the safe custody of the parcels of sample. It is the prosecution case that on 01.09.2010 Liaqat Ali, S.I. (PW-4) the complainant received secret information that two persons having charas with them were travelling by Suzuki Cultus Car bearing Registration Number No,688/STS from Gujarat was likely to arrive. Thereafter, Liaqat Ali, S.I. (PW-4)-the complainant established a picket near Chak Murtaza G.T. Road in the front of Al-Fateh House. After some while, car bearing Registration Number No, 688/STS arrived and Liaqat Ali, S.J. (PW-4)-the complainant intercepted the car and the person sitting on the front seat of the Car alighted from the car and disclosed his name as Shafqat Ali. Thereafter, Liaqat Ali, S.I. (PW-4) the complainant, in presence of prosecution witnesses made search of the car and recovered ten packets of charas weighing 10 kilograms charas while one packet of opium from the foot of the accused Shafqat Ali, which were taken into custody. Liaqat Ali, S.I. (PW-4) the complainant deposed during examination-in-chief that: "In the meanwhile, Sabir SI/LO arrived there and I handed over the case property as well as custody of the accused to him."
Similarly, Liaqat Ali, S.I (PW-4)-the complainant deposed during cross-examination that, "I handed over the custody as well as case property to I.0 at 1:30 again said 2/2:30 a.m."
Whereas, Sabir Hussain, S.I. (PW-5) Investigating Officer had not deposed that Liaqat Ali, S.I (PW-4)- the complainant had handed over to him (PW-5) case property. However, Sabir Hussain, S.I. (PW- 5)- Investigating Officer deposed during examination-in-chief that, "After coming to P.S. I deposited the case property with the Moharrar and got remanded the accused present in the Court, into judicial custody."
The prosecution was bound to put it in fairness even in the chief-examination to explain the safe custody of the sealed parcels of samples. It is not merely a minor lapse but there is a very strong suspicion about the entire Prosecution story. This fact alone creates a ground to believe that the parcels of samples were not kept in safe condition and the claim of the prosecution that the parcels of samples were not tampered with is doubtful. The prosecution has to establish by cogent evidence that the alleged samples of charas drawn from the narcotic substance recovered from the possession of the accused was kept in safe custody. There is no explanation for this failure to establish safe custody of parcels of samples from the time of seizer on 01.09.2010 till its deposit with the Office of Chemical Examiner Punjab, Lahore on 08.09.2010. It is not clear where the samples were kept. Mere oral evidence of the prosecution witnesses i.e Sultan Mahmood, A.S.I. (PW-3) and Liaqat Ali, S.I (PW-4)-the complainant as to the recovery of charas weighing ten (10) kilograms does not discharge heavy burden of responsibility, which lies on the prosecution. It is considered opinion of the Court that the aforesaid inconsistencies and contradictions considered cumulatively do lead to irresistible influence that the prosecution has not been able to prove safe custody of the parcels of samples drawn from the alleged recovered substance and remaining case property through material and cogent evidence.
12. There is another aspect of the case of the glaring contradiction in the statements of the prosecution witnesses,. also making the case of the prosecution highly doubtful. Imtiaz-ul-Haq, 842/H.C. (PW-2) deposed during examination-in-chief that, "On 8.9.2010, I handed over the said sample parcels to Nasar Ullah Khan, 147/C for onward transmission to the office of Chemical Examiner, Lahore intact."
Nasar Ullah Khan, 147/C (PW-6) deposed during examination-in-chief that: "On 8.9.2010 I was posted at P.S Sadar, Lalamusa. On the same, Moharrar Imtiaz Ahmad, 842/H.0 handed over to me ten sealed parcels said to contain Charas and one sealed parcel said to contain opium for their onward transmission to the office of C.E."
Whereas on perusal of Chemical Examiner Reports (Ex.PE and Ex.PF), it reveals that Nasar Ullah Khan, 147/C (PW-6) submitted ten (10) sealed parcels of charas and one sealed parcel of opium respectfully on 08-09-2010 and same have been forwarded by Excise and Taxation Officer, Gujrat.
There is, thus, no evidence to .connect the Chemical Examiner Reports (Ex.PE and Ex.PF) with the substance that was seized from the possession of the appellant as Imtiaz-ul-Haq, 842/H.C. (PW-2) has specifically deposed that he handed over ten (10) parcels of charas and one parcel of opium to Nasar Ullah Khan, 147/C (PW-6) for onward transmission to the office of Chemical Examiner, Punjab, Lahore. The prosecution has not been able to prove under what circumstances these samples were sent to the Excise and Taxation Office, Gujrat and no evidence is available for safe custody while the samples remained in the possession of Excise and Taxation Office, Gujrat and when and by whom said parcels of samples were taken out from the Malkhana Whether the samples handed over by Imtiaz-ul-Haq, 842/H.C. (PW-2) to Nasar Ullah Khan, 147/C (PW-6) relate to the alleged contraband seized from the possession of the appellant has not been proved. This contradiction went to the root of the case. The said contradiction in the deposition of the aforementioned police officials cannot be stated to be minor and irrelevant in the absence of the positive and material evidence. 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 are to be set aside and the same are set aside.
13. We, have also noted that the contraband substance was found lying in the foot of the accused in the car but Suzuki Cultus Car bearing Registration Number No, 688/STS was not taken into possession by the complainant. The most important piece of evidence was the car allegedly used in contraband trafficking and contraband was recovered from the car but the car was not taken into custody, which extract nexus with the edifice of the prosecution story. Liaqat Ali, S.I (PW- 4)-the complainant admitted during cross-examination that: "Suzuki Car was not taken into possession by me. The colour of the car was of "MoonEia" colour."
Learned Law Officer has frankly conceded that the case of the appellant is fit for acquittal. The prosecution failed to establish by cogent evidence that the alleged charas and opium were seized from the car. Practically the prosecution took upon themselves the risk of losing the case.
14. For the reasons stated above, it is held that prosecution has not been able to prove its case beyond all reasonable doubts against the accused/appellant, Shafqat Ali for the offence under Section 9 (C) of The Control of Narcotic Substances Act, 1997: Thus, the findings of the learned Additional Sessions Judge, Kharian qua conviction of the appellant, Shafqat Ali for the above said offence are liable to be set aside and the same are set aside and as a consequence whereof, the appeal is accepted and the appellant-Shafqat Ali is ordered to be acquitted of the charge in case F.I.R. No,207 of 2010, dated 01.09.2010, offence under Section 9(C) of the Control of Narcotic Substances Act, 1997, registered at Police Station Saddar Lalamusa, District Gujrat. The appellant- Shafqat Ali is ordered to be released forthwith from Jail, if not required in any other case.