TARIQ SALEEM SHEIKH, J.---This appeal under Section 48 of the Control of Narcotic Substances Act, 1997'
(the "CNSA"), is directed against the judgment dated 31.1.2019 passed by the learned Additional Sessions Judge, Layyah, in case FIR No.478/2018 dated 27.8.2018 registered at Police Station City Layyah, for an offence under Section 9(c) of the CNSA.
2. Brief facts of the case are that on 27.8.2018 Complainant Muhammad Sajjad Sashir/ASI (PW-3) was on patrol duty with Ameer Muhammad 887/C (PW-4) and other police officials when he received a secret information that the Appellant was selling charas near Total Petroleum Service, Chowk Azam Road, near his house. Consequent thereupon he raided and apprehended him with 1540 grams charas wrapped in a polythene bag along with Wattak money in the sum of Rs.350/-. Muhammad Sajjad Bashir/ A.S.I. drew 77 grams from the recovered substance and prepared a sealed sample parcel for chemical analysis and preserved the remaining bulk P-1 through a separate sealed parcel. Then he took both these parcels into possession along with the money P-2/1-3 and P-3/1-5 vide Recovery Memo Exh.PB. After that he drafted complaint (Exh. PC) and despatched it to the police station through Muhammad Ashraf 371/C for registration of formal FIR. Nazir Ahmad/ASI (PW-2) received the complaint and registered FIR No.478/2018 (Exh.PA). Shafqatullah/SI (PW-5) and Umar Khan/SI (PW-6) investigated this case. On completion of investigation report under Section 173, Cr.
P. C. was submitted.
3. On 13.10.2018, the learned Additional Sessions Judge indicted the Appellant who pleaded not guilty and claimed trial. In order to prove its case the prosecution produced six witnesses, namely, Zafar Iqbal 106/HC (PW-1), Nazir Ahmad/ASI (PW-2), Muhammad Sajjad Bashir/ASI (PW-3), Ameer Muhammad 887/C (PW-4), Shafqatullah/ SI (PW-5) and Umar Khan/SI (PW-6). In documentary evidence the prosecution inter alia produced Rapats regarding departure and arrival of Shafqatullah/SI (Exh.PE and Exh.PF), copy of FIR No.341/2018 under Sections 3 and 4 of the Prohibition (Enforcement of Hadd) Order No.IV of 1979 (Exh.PG), copy of FIR No.442/2018 (Exh.PH) and the Narcotics Analysis Report (Exh.PJ).
4. After the close of prosecution evidence the learned trial Court recorded the statement of the Appellant under Section 342, Cr.P.C. He denied the allegations levelled against him and alleged that Complainant Muhammad Sajid Bashir/SI had framed him in this case because his sister-in-law Mariyam Bibi had initiated proceedings against him for abusing his authority. The Appellant did not opt to make statement on oath under Section 340(2), Cr.P.C. but examined Mariyam Bibi as DW-1 in his defence.
5. On the conclusion of trial, vide impugned judgment dated 31.1.2019, the learned Additional Sessions Judge convicted the Appellant under Section 9(c) of the CNSA and sentenced him to rigorous imprisonment for four years and six months with fine of Rs.20,000/- and in default thereof to undergo simple imprisonment for a further period of five months. However, benefit of Section 382-B, Cr.P.C. was extended to him. Hence, this appeal.
6. The learned counsel for the Appellant contended that the case against the Appellant was false and concocted. Although there was a specific allegation against the Appellant that he was selling narcotics, nobody was arrested while purchasing the contraband from him. He further contended that the prosecution witnesses were untrustworthy because they contradicted each other on material points. The learned counsel argued that the learned trial Court had failed to appreciate the evidence properly which had caused serious miscarriage of justice. As such, the impugned judgment was liable to be set aside and the Appellant was entitled to acquittal.
7. On the other hand, the learned Deputy Prosecutor General vehemently opposed this appeal. He contended that 1540 grams charas along with Wattak money were recovered from the Appellant's possession which was duly proved at the trial. He prayed for dismissal of this appeal.
8. Arguments heard. Record perused.
9. The prosecution case is that on 27.8.2018 a police patty headed by Muhammad Sajid Bashir/ASI (PW-3) apprehended the Appellant from Chowk Azam Road, Layyah, and 1540 grams charas was recovered from him.
During the trial Muhammad Sajid Bashir/ASI (PW-3) and Ameer Muhammad 887/C (PW-4) testified about the factum of recovery.
10. The Appellant has alleged specific mala fides against Complainant Muhammad Sajid Bashir/ASI (PW-3). In his statement under Section 342, Cr.P.C. he stated that on 10.8.2018 at about 6:00 p.m. he allegedly raided his house with a police contingent. He along with Irfan Iftikhar/SI scaled the wall and while trespassing hit the right foot of his sister-in-law Mariyam Bibi with the butt of his gun and injured her. Mariyam Bibi moved an application before the learned Area Magistrate who ordered her medical examination. The Medical Officer declared her injury as Jurh Ghayr Jaiffah Hashimah and opined that there was no possibility of its fabrication. Mariyam Bibi then filed a petition under Section 22-A, Cr.P.C. before the Ex-Officio Justice of Peace seeking direction for registration of FIR against Muhammad Sajid Bashir/ASI and other police officials which was allowed on 4.9.2018. Muhammad Sajid Bashir/ASI filed a constitutional petition against that order before this Court which was dismissed. The Appellant further stated that when proceedings were pending before the Ex-Officio Justice of Peace, Muhammad Sajid Bashir/ASI tried to compound the matter with his family but when they refused he raided his house again on 24;8.2018, arrested him and three days later booked him in the instant case. The Appellant examined Mariyam Bibi as DW-1 and adduced in evidence Magistrate's order dated 13.8. 2018 (Exh.DA), application for medical examination (Exh.DA/1), and order of the Ex-Officio Justice of Peace dated 4.9.2018 (Exh.DB). Thus, through oral and documentary evidence the Appellant proved that the police were inimical towards him and Muhammad Sajid Bashir/ASI had a motive to falsely implicate him in the instant case.
11. It is true that Section 25 of the CNSA excludes the application of Section 103, Cr.P.C. and the law is also settled that police officials are as good as any other witness from the general public. However, this does not mean that the Court should accept their testimony as gospel truth without taking the defence plea into consideration. In Wazir Muhammad v. State (1992 SCMR 1134), the Hon'ble Supreme Court of Pakistan ruled: "We have considered the defence plea taken by the Appellant in the light of prosecution evidence and we find that the appellate Court did not pay any attention to the defence taken up by the Appellant. In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution. The case set up by the Appellant has certainly created doubt in our mind about the truthfulness of the case of the prosecution. The explanation given by the Appellant is quite plausible...."
12. In a subsequent case cited as Ghaus Bakhsh v. State (2000 MLD 618) a Division Bench of the Quetta High Court observed: "It is now well-settled proposition of law that in criminal cases the burden of proving its case rests on the prosecution which is duty bound to prove its case, against the accused, beyond reasonable doubt. This duty, it may be mentioned, does not change or vary even in a case in which no defence plea is taken by the accused.
The defence plea, is always to be considered in juxtaposition with the prosecution case and, in the final analysis, if defence plea is proved or accepted, then the prosecution case would stand discredited/shattered.
However, if the defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case, then in that case too, it would be enough. It may be noted that in case it is not established, at all, no benefit would accrue to the prosecution on that account and its duty to prove its case beyond doubt would not be diminished even if the defence plea is not proved or is found to be palpably false. (Reference is made to the authority reported in 1998 PCr.L J 808)."
13. For what has been discussed above, in our opinion, the prosecution has failed to prove the charge against the Appellant beyond doubt. Accordingly, while extending benefit of doubt to the Appellant we allow this appeal and set aside the impugned judgment dated 31.1.2019 and also the conviction and sentence awarded to him.He shall be released forthwith if not required in some other case.