Farooq Haider , J.--Through the above mentioned appeal Muhammad Sattar (hereinafter referred as appellant) has assailed the judgment dated 10.8.2017 passed by learned Additional Sessions Judge, Dera Ghazi Khan, whereby appellant has been convicted and sentenced under Section 9(c) of Control of Narcotic Substances Act, 1997 to five years rigorous imprisonment alongwith fine of Rs, 50,000/-and in default thereof, he shall undergo simple imprisonment for six months with benefit of Section 382-B, Cr .P.C.
2. Brief facts, as per written complaint (Ex.P A/1) submitted by Liaquat Abbas, Naib Dafedar/Station House Officer, Police Station BMP Sakhi Sarwar , Distric t Dera Ghazi Khan (PW-4) are that on 15.8.2016 at 4.00 p.m. alongwith Muhammad Nawaz, Ghulam Abbas, Parvez Ahmad and Driver Parvez Ahmad was present near Shakra Crush.
Mouza Sain.a Khorr on patrolling duty where he received spy information that one Muhammad Sattar after purchasing heavy quantity of charas from Rakni Blouchistan and hiding it under the seat of motorcycle is coming towards Dera Ghazi Khan for selling the said narcotic whereupon, he set up a picket at Dera Quetta. In the meantime, a motorcycle driven by a person came from western side, which was stopped and on interrogation, the said person told his name as Muhammad Sattar and on unscrewing the seat of motorcycle, there were found two packets of charas, which were weighed and each packet was found containing one kilogram of charas. From each packet 100 grams charas was separated as sample, which were made into two scaled parcels for sending them to the office of Punjab Forensic Science Agency for analysis, whereas the remaining charas of each packet was also sealed, and all the four parcels alongwith motorcycle Safari Sll-70 bearing Engine No, 7S-076173 Chasis No, AA- 175876 was also taken into possession through recovery memo.' Ex.PB. On receiving the complaint at Police Station BMP Sakhi Sarwar , Dera Ghazi Khan, Moharrer of the said Police Station registered formal FIR No, 7/2016 under Section 9 (c) of Control of Narcotic Substances Act, 1997 dated 15.8.2016 (Ex.P A).
3. On the conclusion of the investigation, appellant was challaned to the Court. After fulfilling the codal formalities, he was formally charged under Section 9(c) of Control of Narcotic Substances Act, 1997, to which he pleaded not guilty and claimed trial.
4. Prosecution produced its Five witnesses and then after tendering documents closed its evidence.
5. Then statement of the accused was recorded under Section 342, Cr.P.C. in which he refuted the allegations leveled against him, however , neither he opted to record his statement under Section 340(2), Cr.P.C. nor produce any defence evidence.
6. The learned trial Court after conclusion of the trial has convicted and sentenced the appellant as mentioned above vide impugned judgment dated 10.8.2017.
7. Learned counsel for the appellant has submitted that impugned conviction and sentence recorded through impugned judgment are against the law and facts; that learned trial Court failed to appreciate material available on the record; that impugned judgment is result of misreading and non-reading of evidence; that prosecution has not proved its case against the appellant beyond shadow of doubt; and that impugned judgment containing conviction and sentence awarded to the appellant is liable to be set aside.
8. Conversely learned Deputy Prosecutor General has supported the impugned judgment.
9. Arguments heard. Record perused.
10. It has been observed that Rapat i,e, entry of the Roznamcha of Police Station BMP Sakhi Sarwar , Dera Ghazi Khan regarding departure of the Station House Officer (PW-4) of the aforementioned Police Station for patrolling and thereafter reaching at the alleged place of recovery has not been produced by the prosecution. As far as safe custody and dispatch of samples for expert opinion is concerned, it has been noticed that PW-2 Hassan Raza Sarwar was handed over parcels of allegedly recovered narcotic for onward transmission to the office of Punjab Forensic Science Agency , Lahore and he in this regard has categorically stated during his cross-examination as under: "I returned from Lahore on 24.8.2016 after submission of parcel---------- It is important to mention here that after his said reply neither he was re-exami ned by the prosecution nor got declared hostile. It is further important to mention here that according to the report of Punjab Forensic Science Agency , got exhibited by the prosecution itself, date of submission of samples over there is 26.8.2016; which both dates are not reconcilable and this glaring contradiction is sufficient to establish that safe custody , transmission and deposit of samples to Punjab Forensic Science Agency Lahore has not been proved, which is dent of substantial nature in the case of prosecution and ipso facto sufficient for giving fatal blow to the case of prosecution. It is trite of law that single dent in case of prosecutio n is sufficient for acquittal, and in this regard, reliance can be placed on the case of " Tariq Pervez versus The State" (1995 SCMR 1345 ).
It has further been observed that PW -3 Muhammad Nawaz Sawar in his examination-in-chief deposed as under: "Stated that on 15.8.2016 I was present at PS BMP Sakhi Sarwar as Sawar . On the same day I alongwith Liaquat Abbas SHO, Ghulam Abbas and Pervez Ahmad were present in connection with patrolling duty near Shakra Crush in the area of Mouza Saina Khorr . In the meanwhile I spy information was furnishe d to the I.0 that accused present in the Court having charas and transporting the same on a motorcycle. Upon the spy information I.O. constituted raiding party and we establish the Picket at D.G, Khan Quetta Road. After some moments of accused present in the Court came from west on the motor who was stopped and on checking charas weighing 2-KG in two separate packets P-1 and P-2 each weighing 1000-grain was recovered. I.O. took 100-gram from each packet made it into sealed parcel and he took into possession alongwith motorcycle Safari P-3 vide recovery memo. Ex.PB which was attested by me and Ghulam. Abbas Surwar .I.O. also took into possession cash amount Rs, 5701-which was recovered only personal search of the accused vide recovery memo. Ex.PC which was attested by me and by Ghulam Abbas Sawar . I.O. also prepared complaint and sent the same to PS through Pervez Ahmad for registration of formal FIR."
It is important to mention here that investigating officer of the case is Ejaz Ahmad Jamedar/Circle Officer of the Police Station. Now analysis of said statement of PW-3 Muhammad Nawaz shows that all the proceedings of recovery of narcotic including preparation of recovery memo. Ex.PB were done by Investigating Officer of the case and recovery memo. regarding cash amount from the possession of the accused i,e, Ex.PC was also prepared by the Investigating Officer of the case but in this regard case of the prosecution is self-contradictory because amongst aforementioned recovery memos only Ex.PC shows that it has been prepared by the Investigating Officer whereas recovery memo. of narcotic Ex.PB clearly depicts that it has not been prepared by the Investigating Officer. This fact also raises eyebrows. regarding the truthfulness of the case of prosecution and evidence produced before the Court. So, this piece of evidence also creates reasonable doubt' regarding all the recovery proceedings. It is also important to mention here that close scrutiny of statement of this witness reveals that complaint was even prepared by the Investigating Officer but said complaint is not on the record rather the complaint, which has been produced by the prosecution on the record, has been prepared by Liaquat Abbas/PW -4.
PW-3 during cross-examination has clearly deposed as under: "I cannot tell whether We also stopped any other vehicle or motorcycle prior to this accused; 1 cannot remember whether who made body search of the accused present in the Court. It is correct that no denomination of the recovered currency . notes is given in Fard Maqboozgi; I cannot tell the exact time, when Liaquat Abbas drafted complaint Ex.PA/1; I cannot remember that at what time Pcrvez Ahmad Sawar departed from the spot to the Police Station on Dalla; I cannot tell at what time Ejaz Ahmad Circle Officer was informed and at what time he reached at the spot; I cannot tell at what time Ejaz Ahmad Circle Officer recorded his statement under Section 161, Cr.P.C.; I cannot remember that at what time we reached at the police station.
This deposition of the said witness clearly depicts that he is not trustworthy witness and his testimony is not confidence inspiring.
Similarly PW -4 Liauqat Abbas has clearly stated during his evidence as under: "I could not tell that at what time Ejaz Ahmad Jamedar/Circle Of ficer reached at the spot.
Such deposition/reply of this witness also raises eyebrows regarding his testimonial value and truthfulness.
PW-5 Ejaz Ahmad stated before the Court in his cross-examination as under:- "I cannot tell the time of my arrival at the place of occurrence; when I reached at the spot, recovery of narcotic and motorcycle had already been done by Liaquat Abbas SHO/Naib Dafedar; it consumed 20-minutes at the spot and after that I alongwith accused, recovered articles and police officials returned back at police station; after that I reduced into writing all the proceedings.
This deposition also shakes truthfulness of the case of prosecution. So prosecution witnesses are not corroborating/tallying each other on crucial points. Samples even otherwise were sent with delay . Inspite of the fact that police party was having prior information regarding bringing narcotic by the accused, no private witness has been associated in the recovery proceedings although Shakra Crush was available there very close to the alleged place of occurrence.
11. In view of above, we have reached at the conclusion that initial burden of proving the charge was upon prosecution, which could not be discharged by it. Since prosecution has failed to prove its case beyond shadow of doubt against the appellant, hence there is no need to discuss the defence version.
12. For what has been discussed above, instant appeal is allowed, impugned conviction and sentence recorded through the impugned judgment dated 10.8.2017 passed in case arising out of FIR No, 7/2016 dated 15.8.2016 under Section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station BMP Sakhi Sarwar , Dera Ghazi Khan, are hereby set aside and Muhammad Sattar appellant is acquitted of the charge. He shall be released from jail immediately , if not required in any other case.