FAROOQ HAIDER, J.: This appeal has been filed against judgment dated 29.5.2012 passed by the learned Additional Sessions Judge empowered Judge Special Court under CNSA, Kasur (whereby Farzand Ali (appellant) has been convicted under Section 9 (c) of Control of Narcotic Substances Act, 1997 and sentenced to undergo imprisonment for life with payment of fine Rs.4,00,000/- and in default thereof to further undergo one year S.I., with benefit of Section 382-B Cr .P.C.).
2. Brief facts of the case are that on 25.8.2009 at 7.00 a.m. complainant Nadeem Abbas, DSR Rangers C- Company 87 Wing, Ganda Singh wala, Kasur alongwith Nike Nazir Ahmad R-26252, Sepoy Javed Iqbal R-40895 and Sepoy Rehmat Ali R 42744 were deputed for patrolling in the area and they were present at the bank of River Satluj, they saw three suspects and through lalkara asked them to stop. Said suspects started firing upon Rangers Party with T.T. pistols. However, above mentioned patrolling party encircled and arrested one of them namely Farzand Ali (present appellant) and "13 kilograms and 910 grams heroin", 150 grams opium alongwith packing and one T.T. pistol alongwith two live bullets were recovered. Said recovered case property was taken into possession by the Rangers for subsequently depositing the same in Warehouse Lahore. Farzand Ali (present appellant) made disclosure that said case property has been given to them by Munir Ahmad (since acquitted) for onward transmission to India. Farzand Ali further disclosed the names of his co-accused who had fled away from there as Riaz and Nannah. Incident Report was prepared and sent to the Police Station Ganda Singh Wala, Tehsil and District Kasur for registration of case under Section 9 (c) of Control of Narcotic Substances Act, 1997 read with Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, Sections 324, 353 PPC and Section 13/20/65 of Arms Ordinance. Through Incident Report, it was also asked that after registration of the case, copy of the F.I.R be sent to Akhtar Hussain, Inspector RI-3539, who is conducting the investigation to the extent of offence under Section 9 (c) Control of Narcotic Substances Act, 1997, whereas for the remaining offences some police officer from police station be deputed for investigation. Copy of Incident Report is Ex.PB.
Recovery Memo Ex.P A was also prepared by Nadeem Abbas and attested by Nike Nazir Ahmad R-26252 and Sepoy Rehmat Ali R-42744.
After receipt of Incident Report, on 25.8.2009 Shoukat Ali ASI recorded F.I.R No.213/2009 at 5.10 p.m. under Sections 324, 353, PPC, 13/20/65 Arms Ordinance, 9 (c) of Control of Narcotic Substances Act, 1997 and Articles 3/4 of Prohibition (Enforcement of Hadd) Order , 1979 at Police Station Ganda Singh Wala, Tehsil and District Kasur , which is Ex.PB/1.
Akhtar Hussain Shah, Inspector RI-3539 handed over case property to Inspector Kashif Nadeem RI-31 18, Headquarters F .S. Wing on 29.8.2009.
Site plan of the place of occurrence Ex.PC was also prepared. Farzand Ali allegedly arrested at the alleged place of occurrence on 25.8.2009 and was handed over to Muhammad Jehangir, SI/IO on 27.8.2009 while producing him in the police station by Rangers, who accordingly arrested him on 27.8.2009 and sent him to judicial lock up on 31.8.2009. On 8.9.2009 Muhammad Jehangir, SI/IO moved application Ex.PD for issuance of warrant of arrest of accused Riaz Ahmad, Munir Ahmad and Nannah and thereafter obtained proclamation qua them vide application Ex.PE on 17.9.2009. He sent challan report under Section 173 Cr.P.C. to the Court against Farzand Ali (present appellant) on 20.9.2009. Whereafter on different dates Munir Ahmad, Riaz Ahmad and Shamsher Ali alias Nannah had also joined the investigation and on 15.4.2010 report under Section 173 Cr.P.C. qua them was also submitted in the Court.
Learned trial Court on 31.3.2011 framed the charge against all the four above mentioned accused namely Farzand Ali, Riaz, Shamsher and Munir Ahmad, to which they pleaded not guilty and claimed trial, whereupon the learned trial Court summoned the prosecution evidence and in order to prove its case, prosecution produced as many as ten witnesses including Nadee m Abbas DSR Rangers as PW-1; Nazir Ahmad Constable/Hawaldar as PW-2; Sepoy Rehmat Ali as PW-3; Sepoy Javed Iqbal as PW-4; Shoukat Ali ASI as PW-5; Akhtar Hussain Inspector Rangers as PW-6; Kashif Nadeem DSR as PW-7; Muhammad Jehangir SI (Retd.) as PW-8, Mansab Ali SI as PW-9 and Muhammad Mansha C-637 as PW-10. Prosecution has also got exhibited recovery memo of contraband heroin P1, opium P2, T.T. pistol p3 alongwith two live bulle ts P4/1-2 as Ex.PA; Incident Report/complaint Ex.PB; formal F.I.R Ex.PB/1, Receipt of Contraband by Incharge State Warehouse Ex.PC.
Thereafter tendering report of Chemical Examiner as Ex.PF , prosecution closed its evidence. Whereafter all the four accused persons including Farzand Ali (present appellant) got recorded their statements under Section 342 Cr.P.C. however , none of them opted to appear under Section 340 (2) Cr.P.C., while replying to question No.5 during statement under Section 342 Cr .P.C. Farzand Ali appellant stated as under: - "I have been falsely involved in this case on the behest of our enemies who were in league with the ranger personnel. In fact, the ranger employees let off the real culprits and planted the narcotics on me on the asking of our enemies. I have no previous history of such like case. I am quite innocent, and put myself at the mercy of this honorable Court. The P.Ws are official witnesses who deposed against me just to strengthen the prosecution case, moreover, there are a numbers of contradictions and discrepancies in the statements of the witnesses"
Riaz Ahmad accused produced Ghafoor and Akbar Ali as DW-1 and DW-2 respectively in his defence.
Muhammad Nawaz son of Amraiz DW-3, Nawaz son of Nawab Din DW-4 appeared in defence of Munir accused.
Muhammad Arif DW-5, Jafar Ali DW-6 appeared in defence of Shamsher alias Nannah accused. Muhammad Ashiq DW-7, Abdul Rasheed DW-8, Ahmad Din DW-9, Muhammad Arhsad DW-10, Sadiq DW-11, Nazir Ahmad son of Muhammad Sadiq DW-12, Nazir Ahmad son of Ahmad Din DW-13 appeared in defence of Farzand Ali accused and thereafter defence evidence was closed.
After conclusion of the trial, learned trial Court vide judgment dated 29.5.2012 acquitted accused Riaz, Shamsher alias Nannah and Munir Ahmad of the charge, however, convicted and sentenced Farzand Ali (present appellant) as mentioned above. Hence, this appeal.
3. Learned counsel for the appellant submits that impugned judgment is against the law and facts of the case; that prosecution case is full of contradictions and prosecution witnesses have falsified each other; that Farzand Ali appellant is innocent; that prosecution could not discharge its initial burden of proving charge against Farzand Ali appellant, hence conviction and sentence recorded through the impugned judgment to the extent of Farzand Ali appellant is liable to be set aside and the appellant deserves acquittal in the case.
4. Conversely learned Deputy Prosecutor General has supported the impugned judgment by contending that huge quantity of contraband has been recovered from Farzand Ali appellant and there is no reason to falsely plant such huge quantity of contraband upon Farzand Ali appellant by the complainant; that minor contradictions are to be overlooked and finally prayed for dismissal of the appeal.
5. Arguments heard. Record perused.
6. Following aspects of the case are of vital importance:-
(a) Registration ofthe Case: Time of preparing and sending Incident Report/Complaint Ex.PB is not mentioned on the same. According to the Incident Report Ex.PB, occurrence has allegedly taken place on 25.8.2009 at 7.30 a.m. but F.I.R Ex.PB/1 has been lodged at 5.10 p.m., for which, no explanation whatsoever is available on the record. Similarly at the bottom of Incident Report Ex.PB, it has not been mentioned that at which time it was sent to police station and even no police proceedings are available on the Incident Report Ex.PB about its receipt at the police station and recording of F.I.R on the basis of same. Sepoy Rehmat Ali (PW-3) deposed in his statement that Incident Report Ex.PB was prepared while sitting in C-Company Jalal Khan Shaheed Post at 7.30/8.00 a.m. which is 2-kilometers away from the alleged place of recovery, this deposition has smashed the case of the prosecution and established that neither any occurrence has taken place at 7.30 a.m. nor any Incident Report has been prepared at the stated time and place. In this regard, statement of PW-4 Javed Iqbal is also very interesting who has categorically stated that Incident Report Ex.PB was prepared while sitting in the office of C-Company Jalal Shaheed Khan Post and not at the place of occurrence, he further deposed that his statement was recorded at 7.30 a.m. after 15-minutes of preparing Incident Report, which means that the alleged occurrence has not taken place at 7.30 a.m. as claimed by the prosecution. In view of above, it has come on record that Incident Report Ex.PB was neither prepared at the place of occurrence nor at the alleged time of occurrence. So, no legal sanctity can be attached to such document, which lay basis of registration of this case; in this regard guidance can be had from the case of "Abdul Basit Versus The State and others" (2018 SCMR 1425 ). Nutshell is that registration of the case at the alleged time and place has not been proved in this case by the prosecution.
(b) Recovery ofnarcotics and preparation ofsamples : According to recovery memo Ex.PA abovementioned contraband was recovered from Farzand Ali appellant whereas in Incident Repor t Ex.PB above said contraband alongwith T.T. Pistol was recovered from the accused persons. It is very important to note here that according to Incident Report Ex.PB and recovery memo Ex.PA allegedly recovered case property was not sealed at the spot, no samples were taken out from the allegedly recovered heroin and opium at the spot and also no parcel of any such samples was prepared . In Incident Report Ex.PB, it has not been mentioned that either allegedly heroin was in packets and if so, then in how many packets and same is the position about allegedly recovered opium. It is not mentioned in Incident Report Ex.PB that if allegedly recovered heroin was in packets, then what was weight of each packet. Another glaring aspect is that in Incident Report, it is not mentioned that allegedly recovered heroin and opium were weighed at the spot. Perusal of Incident Report Ex.PB and recovery memo Ex.PA makes it clear that samples have neither been taken out from allegedly recovered heroin and opium nor sealed at the alleged place of recovery for the purpose of sending the same to the office of Chemical Examiner. It is mystery that when and where fourteen parcels of heroin and one parcel of opium were prepared because Incident Report Ex.PB and recovery memo Ex.PA are silent in this regard. During investigation, it could not be ascertained that who is owner of alleged place of occurrence. Nadeem Abbas (PW-1) further deposed that he handed over Incident Report Ex.PB and recovery memo Ex.PA to Akhtar Hussain Inspector at 10.00 a.m. at the place of occurrence but strange enough that Akhtar Hussain has straightaway refused to receive the same in his statement before the Court. Nazir Ahmad (PW-2) in his statement before the Court has never stated preparation of attestation of recovery memo in his presence, he has categorically stated that neither Akhtar Hussain Inspector nor Jehangir S.I./I.O. recorded his statement, he stated that Nadeem Abbas PW-1 recorded his statement, however, Nadeem Abbas PW-1 has not admitted recording of statement of said witnesses. It is important to mention here that case of prosecution is that three suspects including Farzand Ali appellant made firing upon the rangers party, out of which, two suspects fled away whereas Farzand Ali appellant was apprehended at the spot but no crime empty shell of any firearm weapon could be found from the place of occurrence by the rangers or Investigating Officer inspite of the fact that alleged place of occurrence was in total supervision and control of rangers, which fact is sufficient to discard the case of prosecution about making firing and also raises eyebrows towards veracity of prosecution evidence. Nazir Ahmad PW-2 further deposed that they started patrolling from the ranger post at 7.30 a.m. and reached at the place of occurrence after half an hour, meaning thereby that they reached at the place of occurrence at 8.00 a.m. then what to speak of taking place this occurrence at 7.30 a.m. Rehmat Ali PW-3 states that three suspects started firing upon them with T.T. pistol upon which they encircled them and apprehended. Here question does arise that in such situation, when Rangers party had encircled suspects, then how it is possible that any of them could flee away from the place of occurrence inasmuch as none from the rangers party received any injury, which aspect speaks about doubtful phenomenon of the case of prosecution. Strange enough to note that Rehmat Ali PW-3 introduced dishonest improvement in his statement by mentioning that Nadeem Abbas complainant separated ten gram for sample from each packet of allegedly recovered narcotics and then Nadeem Abbas sealed the narcotics whereas no such fact is mentioned in the recovery memo and even Nadeem Abbas PW-1 did not depose so. PW-3 Rehmat Ali stated that Akhtar Hussain Inspector reached at the place of occurrence and we handed over accused, case property and all documents to him, however , Akhtar Hussain did not accept it, even Nadeem Abbas PW-1 has also not stated so. PW-3 also clearly stated that his statement was not recorded by any Investigating Officer rather Nadeem Abbas recorded his statement whereas Nadeem Abbas did not say so. Another important factor is that PW-3 says that case number available on recovery memo was written by Nadeem Abbas whereas Nadeem Abbas has not stated so. PW-4 Sepoy Javed Iqbal further stated that he has not given any statement to the Investigating Officer in this case. He further states that his statement was recorded by Nadeem Abbas at 7.30 a.m. and prior to that recovery memo Ex.PA and Incident Report Ex.PB were already prepared. Here it has been proved that no occurrence has taken place at 7.30 a.m. when Incident Report Ex.PB and recovery memo Ex.PA have been prepared prior to 7.30 a.m. Nadeem Abbas also did not admit writing of statement of this witness. In view of above, recovery of narcotics and preparation of samples has not been proved by the prosecution.
(c) Safe Custody of Case Property and Samples: Allegedly case property was recovered on 25.8.2009 but statedly deposited in Warehouse Lahore on 29.8.2009. It is also important to mention here that as per case of the prosecution fourteen samples of heroin weighing 10 gram each and one sample of opium weighing 10 gram were sent to the office of Chemical Examiner through Akhtar Hussain Inspector Ranger meaning thereby that neither case property nor any sample was received in the police station and similarly these alleged samples were never sent by the Investigating Officer of the case to the office of Chemical Examiner . Here question does arise that if after recovery , any sample was prepared from the case property i.e. narcotics, then where said case property remained till its receipt in Warehouse Lahore on 29.8.2009 and where samples, allegedly taken out of narcotics remained till their deposit in the office of Chemical Examiner on 28.8.2009. It is very much important to note that no official of rangers or police has been produced by the prosecution to solve this mystery . It could not come on record that who kept samples in the safe custody and then handed over the same to Akhtar Hussain Inspector for depositing the same in the office of Chemical Examiner . Javed Iqbal PW-4 states in his statement before the Court that Investigating Officer reached at the place of occurrence where Nadeem Abbas PW- 1 handed over accused, case property and documents to him, whereas Akhtar Hussain Inspector and Jehangir , SI (both Investigating Officers) have straightaway negated the same rather it has come on record that accused was produced in the police station on 27.8.2009 and case property was deposited in Warehouse Lahore on 29.8.2009 whereas alleged samples were deposited on 28.8.2009 by the rangers and not by the Investigating Officer. PW-5 Shoukat Ali ASI in his statement has clearly stated that case property was never received in this case in the police station. PW-6 Akhtar Hussain in his statement has also categorically stated that on 28.8.2011 he received sample parcels by the order of 87-Wing Commander and deposited the same on 28.8.2009 in the office of Chemical Examiner. Now here question arises that where these samples remained from 25.8.2009 to 28.8.2009 when admittedly these were not received at the police station neither by Jehangir SI/IO nor by the Moharrar of the police station. It is also very much important to mention here that Wing Commander has not appeared in the Court to depose about safe custody of the parcels and handing over the same to Akhtar Hussain Inspector on 28.8.2011.
As per case of prosecution, remaining case property was handed over to Akhtar Hussain Inspector but he has categorically refuted the same rather he has stated that on 29.8.2011 remaining case property was handed over to him and he deposited the same in Warehouse Lahore on the same day. Now here again question arises where case property remained from the date of its alleged recovery till 29.8.2011 and particularly when concerned Wing Commander did not appear before the Court as stated above to resolve the mystery. Another important aspect of the case is that according to Kashif Nadeem DSR Incharge Warehouse Lahore (PW-7), case property was deposited by Akhtar Hussain Inspector in the Warehouse Lahore on 28.8.2009 whereas Akhtar Hussain deposed that he did so on 29.8.2009. In view of above discussion, safe custody of the case property and samples and then onward transmission of these samples to the office to Chemical Examiner could not be proved by the prosecution and in this scenario report of Chemical Examiner is of no avail and reliance can safely be placed upon the case of "Amjad Ali Versus The State" (2012 SCMR 577). It is also not out of place to mention here that prosecution is also silent on the subject that how many number of seal were embossed on the case property and samples and it has also not come on record that which abbreviation i.e. letters of alphabet was written on any stamp of said seals, which fact also gives support to the view that safe custody of case property , samples and despatch of samples to Chemical Examiner has not been proved by the prosecution.
(d) Place of Occurrence: Muhammad Jehangir, SI PW-8 in his statement before the Court clearly deposed that he visited the place of occurrence on 26.8.2009 and prepared site plan Ex.PC but in said site plan Akhtar Hussain Inspector has been shown as its scribe. It has come on record that ownership of alleged place of occurrence also could not be ascertained, so, place of occurrence cold also not be established by the prosecution.
(e) Arrest ofAccused : Muhammad Jehangir SI (PW-8) clearly stated in his statement before the Court that on 27.8.2009 Farzand Ali accused (appellant) was brought to the police station and handed over to him and then he arrested him. Now very important question does arise that where appellant remaine d from 25.8.2009 till 27.8.2009, if he was arrested at the spot by the rangers on 25.8.2009. Now in this scenario, when it is the case of the prosecution that appellant Farzand Ali was arrested at the place of occurrence on 25.8.2009 but his arrest has not been shown anywhere, Rapat of any Roznamcha has not been produced in this regard, no record has been produced by the prosecution to show that he was produced before any Magistrate for the purpose of physical remand on 25.8.2009 or 27.8.2009, and it has come on record that he was produced before Muhammad Jehangir (PW-8) on 27.8.2009, then arrest of Farzand Ali appellant could not be proved on 25.8.2009.
(f) Investigation: Muhammad Jehangir, SI/IO (PW-8) neither received any case property nor any sample and he also did not deposit any case property to the office of Chemical Examiner. Said Investigating Officer was not given custody of Farzand Ali appellant on 25.8.2009, then these all aspects are sufficient to establish that investigation in the case was mere a colourful exercise of the powers under the influence of rangers and in this regard it could safely be quoted that Muhammad Jehangir S.I/I.O admitted that he challaned Farzand Ali appellant without verification about nature of allegedly recovered narcotics/articles, and then he stated that it is not in his knowledge "where Farzand Ali appellant remained from 25.8.2009 till 27.8.2009". This all speaks about dishonest investigation.
In view of above discussion, we have reached at the conclusion that prosecution could not discharge its initial burden to prove the charge against the appellant and has been failed to prove its case against the appellant beyond shadow of doubt.
7. Though appellant produced DWs in his defence to prove his innocence yet when in the peculiar circumstances of the case, prosecution has failed to discharge its initial burden to prove the charg e against the appellant, then no question does arise that either appellant proved his innocence through defence evidence or not. It goes without saying that three co-accused of the appellant have already been acquitted on the basis of same evidence.
8. Resultantly , we allow this appeal, set aside conviction and sentences recorded against the appellant by the learned trial Court vide impugned judgme nt dated 29.5.2012, as a result of which Farzand Ali appellant is acquitted