AALIA NEELUM, J.---Ghulam Abbas son of Gul Hassan, Caste Syed, resident of Jamalpur Sayaddan, Tehsil and District, Gujrat and Zeeshan Haider , son of Gulraiz Haider , resident of Moinuddin par, Tehsil and District, Gujrat, the appellants were involved in case FIR No.28-2007, dated 20.03.2007, offence under section 9(c) of The Control of Narcotic Substances Act, 1997, registered at Police Station, ANF, Lahore and were tried by the learned Judge Special Court (C.N.S.), Lahore. The learned trial court seized with the matter in terms of judgment dated 13.01.201 1, convicted the appellant-Ghulam Abbas under section 9(c) of The Control of Narcotic Substances Act, 1997 and sentenced him to undergo rigorous imprisonment for ten years with the direction to pay Rs.6,00,000/- as find and in case of default thereof, the appellant-Ghulam Abbas would undergo simple imprisonment for six months whereas the appellant-Zeeshan Haider Was convicted under section 15(c) of The Control of Narcotic Substances Act, 1997 and sentenced him to undergo rigorous imprisonment for six years with the direction to pay Rs.3,00,000/-as fine and in case of default thereof, the appellant-Zeeshan Haider would undergo simple imprisonment for three months. The benefit of section 382-B of Cr.P.C. was also extended in favour of the appellants. The appellants have assailed their conviction through filing instant criminal appeal.
2. The prosecution story as alleged in the FIR (Ex.P A/1) lodged on the written complaint (Ex.P A) of Farooq Ahmad Sheikh, Assistant Director , ANF (PW-4)-the complaint is that on 20.03.2007, a secret information was received by the high-ups of ANF that some officials were involved in drug paddling with their companions, who would come that day at PSO Petrol Pump in order to supply drugs while riding on their vehicles bearing registration Nos.LRX-0345 and LWD-0387, whereupon a raiding team consisted of Farooq Ahmad Sheikh, Assistant Director , ANT (PW-4), Adnan Babar , SI (PW-5), Latif, Naib Subedar , Fakhar-ul-Hassan-Sepoy , Muhammad Younas LNK, Mosam Khan- Sepoy , Waheed-Sepoy , Nazar Abbas-Sepoy , Sikandar-Sepoy , Tahir-Sepoy , Amjad-Sepoy , Shakoor-driver , Rashed- driver under the supervision of Captain Umer Altaf, Assistant Director , ANF was constituted. The raiding team reached the place of occurrence at 02:30 p.m. and started secret surveillance and at about 02:50, p.m. two vehicles bearing registration No.LWD-03 87 and LRX-0345 sipped near PSO Petrol Pump, out of which, three persons were alighted. At about 03:15 p.m. when the said vehicles were about to leave, the vehicles were stopped and the accused-Ghulam Abbas was sitting on the driving seat of vehicle No.LWD-0387 whereas the accused- Shah (since dead in jail) was sitting on the adjacent seat of driver while the accused-Arshad Ali (since convicted) was sitting on the rear seat. The accused persons got recovered ten packets of heroin from the dickey of car. The person who was'driving car No.LRX-0345 disclosed his name as Syed Shahid Hussain (since convicted) whereas the person who was sitting on the adjacent seat of driver disclosed his name as Zeeshan while the person who was sitting on the rear seat disclosed his name as Din Muhammad (since convicted). On the pointation of all the three accused persons, twenty packets of heroi n were recovered from the dickey of the car. The recovered substance i.e. 30-Kilograms Heroin was taken into possession by the complainant (PW-4) vide recovery memos (Ex.PB and Ex.PC). Out of the recovered substance, a sample of 5-grams heroin was separated for narcotic analysis after embossing a seal of ANTF . Thereafter , the complainant (PW-4) drafted a complaint (Ex.P A) and sent the same to the police station through Muhammad Younas-LNK for registration of formal FIR. On the basis of written complaint (Ex.P A), formal FIR (Ex.P A/1) was chalk ed out by Mehmood-ul-Hassan, SI (PW2)-the Moharrar . Thereafter , the complainant (PW-4) being Investigating Officer prepared rough site plan of the place of recovery (Ex.PF) and recorded the statements of the prosecution witnesses under section 161 of Cr .P.C.
3. Having found the accused persons Ghulam Abbas and Zeeshan Haider guilty , the Investigating Officer (PW-4) prepared report under section 173, Cr.P.C., while placing the names of the accused persons in Column No.3 of the Challan and sent the same to the court of competent jurisdiction.
4. The lc arned trial court formally charge sheeted the appellants on 02.09.2009, to which they pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as five (05) witnesses. Farooq Ahmad Sheikh, Assistant Director , ANT (PW4) is the complainant as well as the Investigating Officer, Mehmood-ul- Hassan, SI (PW -2) chalked out formal FIR, whereas Adnan Babar , SI (PW -5) is witness of the recovery .
5. On 01.11.2010, the learned Special Prosecutor for ANF gave up Fakhar-ul -Hassan, Sepoy PW being un- necessary and closed the prosecution evidence after tendering the reports of the Chemical Examiner Punjab, Lahore (Ex.PJ and Ex.PK).
6. The appellants were also examined under section 342, Cr.P.C. wherein they opted to lead defence evidence but refuse'd to appear their own witnesses in terms of section 340(2), Cr.P.C. in disproof of the allegations levelled against them and while replying to a partic ular question that why this case was against them and why the PWs had deposed against them, the appellant (Ghulam Abbas) made, following deposition:- "I was police official at the time of raid. On 20.03.2007, I was posted in Organized Crime CIA Gujrat. I along with Ghulam Abbas received information and on that information we went to Ghausia Hotel, situated at Ghazi Chak Chowk on cars Nos.0387 and 0345 respectively . The car No.LWD-0387 was already in our possession under application of section 550 of Cr.P.C. The other car was hired. These cars were used only to give a cover to the secret information and intentionally the official vehicles were not used. At the time of raid and spy information, our incharge Mr. Waqas Ahmad SI Incharge Organized Crime was in the office of DPO Gujrat who was informed telephonically about this information and our departure to the place of information. The departure was entered in the daily Roznamcha on 20.03.2007 at about 3:05 p.m Reaching there, we saw few persons. Some were in civilian dresses and later on disclosed as officials of ANF Lahore. We apprehended two persons on the basis of the information, but the ANF officials simultan eously intervened and hot words were exchanged between us and ANF officials. The ANF forcibly detained us on the strength of their force which was more than 8-10 officials, fully armed.
Meanwhile on hearing the exchange of hot words ASI Ansar Mahmood, Incharge Ghazi Chak Chowki and Qaisar Raoof-C also arrived there. They apprised the ANF officials about our identity , being from Organized Police Force having no concern with 2-3 disputed civilian persons, out of them one was already in their custody . ANF officials forcibly took us along with them to Lahore in spite of the fact that Waqar Ahmad SI who also reached the spot and Ansar Mahmood ASI who was already present there, requested them to talk to their senior officers i.e. DSP or SP, but they did not listen to that, rather arrested one Qaisar Raoof who saw the whole incident as he was already present near the place of occurrence before our arrival. Qaisar Raoof's mistake was that he narrated the incident before his seniors showing the high handedness of ANF officials. Later , Qaisar Raoof was let off after one day.
Ghulam Abbas incharge of Police Station Saddar in whose jurisdiction, the place of occurrence had taken place also, entered rapat roznamcha No.3/10 regarding this occurrence. During investigation, my father in. law made an application to IGP regarding his false involvement and high handedness of the ANF of which an inquiry No.68823 was ordered which was conducted by DSP Riaz Ahmad Chadhar . Despite a lot of efforts as known to me, the ANT did not join the inquiry and on the further evidence of police officials and the civilian person at the place of occurrence, the said inquiry officer exonerated us from the recovery of narcotics. No narcotics were recovered from me nor from the car. The whole story is fictitious and we were implicated along with few civilians who have already confessed their guilt in the court without any justification. I was on bona fide duty at the time and place of raid. The ANF of ficials have deposed against me as subordinates of the complainant/I.O."
While replying to the particular question, the appellant (Zeeshan Haider) made following deposition:- "I was police official at the time of raid. On 20.03.2007, I was posted in Organized Crime CIA Gujrat. I along with Ghulam Abbas received information and on that information we went to Ghausia Hotel, situated at Ghazi Chak Chowk on cars No.0387 and 0345 respectively . The car No.LWD-0387 was already in our possession under application of section 550 of Cr.P.C. The other car was hired. These cars were used only to give a cover to the secret information and intentionally the official vehicles were not used. At the time of raid and spy information, our incharge Mr. Waqas Ahmad SI Incharge Organized Crime was in the office of DPO Gujrat who was informed telephonically about this information and our departure to the place of information. The departure was entered in the daily Roznamcha on 20.03.2007 at.ab out 3:05 p.m. Reaching there, we saw few persons. Some were in civilian dresses and later on disclosed as officials of ANF Lahore. We apprehended two persons on the basis of the information, but the ANF officials simultan eously intervened and hot words were exchanged between us and ANF officials. The ANF forcibly detained us on the strength of their force which was more than 8-10 officials, fully armed.
Meanwhile on hearing the exchange of hot words ASI Ansar Mahmood, Incharge Ghazi Chak Chowki and Qaisar Raoof-C also arrived there. They apprised the ANF officials about our identity , being from Organized Police Force having no concern with 2-3 disputed civilian persons, out of them one was already in their custody . ANF officials forcibly took us along with them to Lahore in spite of the fact that Waqar Ahmad SI who also reached the spot and Ansar Mahmood ASI who was already present there, requested them to talk to their senior officers i.e. DSP or SP, but they did not listen to that, rather arrested one Qaisar Raoof who saw the whole incident as he was already present near the place of occurrence before our arrival. Qaisar Raoof's mistake was that he narrated the incident before his seniors showing the high handedness of ANF officials. Later , Qaisar Raoof was let off after one day.
Ghulam Abbas incharge of Police Station Saddar in whose jurisdiction, the place of occurrence had taken place also, entered rapat roznamcha No.3/10 regarding this occurrence. During investigation, my father in law made an application to IGP regarding this false involvement and high handedness of the ANF of which an inquiry No.68823 was ordered which was conducted by DSP Riaz Ahmad Chadhar . Despite a lot of efforts as known to me, the ANF did not join the inquiry and on the further evidence of police officials and the civilian person at the place of occurrence, the said inquiry officer exonerated us from the recovery of narcotics. No narcotics were recovered from me nor from the car. The whole story is fictitious and we were implicated along with few civilians who have already confessed their guilt in the court without any justification. I was on bona fide duty at the time and place of raid. The ANF of ficials have deposed against me as subordinates of the complainant/I.0."
In defence evidence, Muhammad Siddique Awan, DSP, Muhammad Riaz Chadha r, DSP, Muhammad Afzal-Head Constable, Waqar Ahmad, SI Muhammad Abbas, Inspector , Manzoor Hussain 156-C, Qaisar Rauf 1093/C, Rasheed Ahmad and Ansar Mehmood, ASI appeared as DW-1 to DW-9. In documentary evidence, the defence produced certified copies of certain documents as Ex.DG/1 to Ex.DG/23 and closed their 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 appellants in the above stated terms.
8. We have heard the arguments advanced by the learned counsel for the appellan ts as well as the learned Special Prosecutor for ANF and have minutely perused the record available on the file.
9. The case of the prosecution primarily hinges on the testimony of Farooq Ahmad Sheikh AD (PW-4)-the complainant and Adnan Babar , S.I. (PW-5). Farooq Ahmad Sheikh, Assistant Director (PW-4)-the complainant during examination-in-chief deposed that the contraband substance Heroin (P-1) was recovered from the dickey of the car bearing registration No.LWD-0387 driven by Ghulam Abbas (the appellant No.1), on the joint disclosure of accused persons. The contraband substance Heroin (P-1) was contained in 10 packets which were weighed and found to be 10 kilograms and that the sample taken from each packet of the contraband were 05-grams, which were separately sealed. Whereas Zeeshan Haider (the appellant No.2) was sitting on the front seat of car bearing registration No.LRX-0345. From the dickey of said car 20 packets were recovered, which were weighed and found to be one kilogram each, total 20 kilograms and that the sample taken from each packet of the contraband was 05- grams which were separately sealed. All of the accused present in the car jointly pointed out and got recovered ten packets of heroin (P-1) ) laying in the dickey of the car Diahtsu Coure bearing registration No.LWD-0387 Similarly , on the pointing of accused persons sitting in car make Toyota Corolla bearing registration No.LRX-0345 twenty (20) packets of heroin (P-2) were recovered from the dickey of the car. It is undisputed that the packets of heroin were allegedly seized' from the dickey of the cars. However , during cross-examination Farooq Ahmad Sheikh, Assistant Director (PW-4)-the complainant deposed that, "all the three accused in one go made disclosure. The tora was lying in the dickey and not in any cavity . I did not remember that the dickey was opened by the accused or A not." Whereas, Adnan. Babar , S.I. (PW-5)-rec overy witness deposed during cross-examination that, "The dickey was opened by Farooq Ahmad Sheikh Inspector and tora was lying open and heroin was not concealed in any cavity ." Adnan Babar , S.I. (PW5) totally shatters the prosecution case that on the pointing of the accused persons alleged heroin was got recovered by the accused persons. These contradictions destroyed the credibility of the witnesses. These contradictions 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. Besides, it is also undisputed that the packets of heroin were seized from the dickey of the cars. Thus, it is not a case of personal search of a person. A car, under no circumstances, can be treated as body of a human being. The car has separate name and is identifiable as such. The car cannot even remotely be treated to be part of the body of a human being. Even there is no evidence on record to the effect that the appellants got recovered contraband substance from the dicky of the cars, hence the recovery should not be treated to be recovered from the appellants. Nor it is case of the prosecution that the appellants got recovered heroin from the dickey of the cars.
10. There is another aspect of the case which also makes the case of the prosecution highly doubtful. Farooq Ahmad Sheikh, Assistant Director (PW-4)-the complainant-investigating officer and Adnan Babar , S.I. (PW-5)-the recovery witness have not spoken during their examination-in-chief about the affixture of any impression seal on the articles seized from the spot. Therefore, there is nothing on the record for the prosecution to convince the court that any specimen seal impression was put on the case properties (P.,1 and P-2) seized from the spot.
Explanation of any nature is also not forthcoming either from Farooq Ahmad Sheikh, Assistant Director (PW-4)-the complainant-investigating officer and Adna n Babar , S.I. (PW-5)-the recovery witness, will be fatal to the prosecution and the accused are entitled to the benefit of doubt. Therefore, there is no scope for the prosecution, even to maintain a stand that seal was affixed by Farooq Ahmad Sheikh AD (PW-4)-the complainant-investigating officer on the parcels of samples and case property (P-1 and P-2). In a circumstance when reference of the seal impression was not deposed by Farooq Ahmad Sheikh, Assistant Director (PW-4)-the complain ant-investigating officer, there is absolutely no basis to connect the case properties (P-1 and P-2) with the substance recovered from the dickey of the cars. Therefore, there is every scope for a doubt to arise in the mind of this Court regarding the identity of the case properties (P-1 and P-2) seized and the samples forwarded for the purpose of analysis. Practically the prosecution took upon them the risk of losing the case. In the considered opinion of this Court, the aforesaid inconsistencies and contradictions considered cumulatively do lead to an irresistib le inference that the prosecution has not been able to prove safe custody of the recovered substance through material and cogent evidence.
11. Similarly , the Chemical Examiner Reports (Ex.PJ and Ex.PK) reveal that the same are collective reports of all samples. Thus, it is seen that in the present case there is non-compliance with the Control of Narcotic Substances (Government Analysts) Rules, 2001, which makes the chemical examiner report (Ex.PJ and Ex.PK) doubtful.
12. We, have also noted that the contrab and substance was recovered from the dickey of the cars made Diahtsu Coure bearing registration No.LWD-0387 and Toyota Corolla bearing registration No. LRX-0345. But cars made Diahtsu Coure bearing registration No.LWD-0387 and Toyota Corolla bearing registration No. LRX-0345 were not produced in the court by the prosecution. The most important piece of evidence was the cars allegedly used in contraband trafficking because contraband was recovered from the dickey of the cars but the cars were not produced in the court, which extract nexus with the edifice of the prosecution story . Farooq Ahmad Sheikh, Assistant Director (PW-4)-the complainan t deposed during cross-examination that, "--The cars are not butside the court today neither on the day of recording of my statement on the last date---" Similarly , Adnan Babar , S.I. (PW-5) deposed during examination-in-chief that, "---The car LWD-0387 was also taken into possession (the car is not outside the court today)---Car LRX-0345 was also seized by Farooq Ahmad Sheikh Inspector vide memo Ex.PC (car is not present outside the court today)---" Learned Law Officer has frankly conceded that the case properties i.e. Diahtsu Coure bearing registration No.LWD-0387 and Toyota Corolla bearing registration No.LRX-0345 were not produced before the trial Court. The prosecution failed to establish by cogent evidence that the alleged Heroin was seized from the cars. Practically the prosecution took upon themselves the risk of losing the case.
13. A perusal of the judgment of the court below reflects that Zeeshan Haider (the appellant No.2) was convicted under section 15 of The Control of Narcotic Substances Act, 1997 for assisting and facilitating his co-accused Shahid Hussain (since dead), driver of the car Toyota Corolla bearing registrati on No. LRX-0345 for trafficking heroin. The prosecution has not established that Zeeshan Haider (the appellant No.2 have in any manner assisted or facilitated the commission of offence by his co-accused Shahid Hussain (since dead). The complainant, therefore, has not assailed the judgment of the trial court to the extent of Zeeshan Haider (the appellant No.2).
14.In the present case, the alleged recovery of Heroin (P-2) from the dickey of car, on the joint disclosure of the appellant No.2 along with other accused sitting in the said car was not believed by the learned trial court. However , the trial court accepted plea of Zeeshan Haider (the appellant No.2) in the way that he took away Diahtsu Coure bearing registration No.LWD-0387 through rapt No. 5 dated 20-03-2007 (Ex.DC). The appellants had raised a specific plea, but the trial court did not find substance in the plea of accused-appel lants. Whereas, the learned trial court had to be accepted or rejected defence plea in toto and not in piece meal which suits the prosecution case.
15. On the other hand, Farooq Ahmad Sheikh, Assistant Director (P-W -4)-the complainant-investigating officer deposed during cross-examination that, "---I do not know that due to the hot words exchange, I implicated both of them ---" This witness had not specifically denied that no hot words were exchanged between him (PW-4) and the appellants, this throws a cloud of doubt on the testimony of the witness. That what actually happened at the spot.
16. Farooq Ahmad Sheikh, Assistant Director (PW-4)-the complainant-investigating officer admitted that he reached back to the Police Station at 10:30 P.M. on 20-03-2007. Whereas on perusal of complaint (Ex.P A), it revealed that the same was prepared at 04:45 p.m. on 20-03-2007 and FIR (Ex.P A/1) was lodged at 7:30 p.m. on the same day.
Admittedly , entire proceedings except preparation of site plan and recording of the statements of the prosecution witnesses were completed before preparing complaint (Ex.P A). From 04:45 p.m. to 10:30 p.m. where parcels of heroin and parcels of samples of heroin remained shrouded in mystery and creates doubt about the safe custody of the recovered narcotic substance. This puts the genuineness of the case property under heavy suspicion. Farooq Ahmad. Sheikh, Assistant Director (PW-4) the complainant-investigating officer did not state that where contraband substance remained from 04:45 p.m. to 10:30 p.m. on 20-03-2007 to the effect that case properties and parcels of the samples remained intact.
17. 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/appellants, Ghulam Abbas and Zeeshan Haider for the offence under section 9(c) of The Control of Narcotic Substances Act, 1997. Thus, the findings of the learned Judge Special Court (CNS), Lahore qua conviction of the appellants, Ghulam Abbas and Zeeshan Haider 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 appellants, Ghulam Abbas and Zeeshan Haider are ordered to be acquitted of the charge in case FIR No.28-2007, dated 20.03.2007, offence under section 9(c) of The Control of Narcotic Substances Act, 1997, registered at Police Station, ANF, Lahore. The appellants-Ghulam Abbas and Zeeshan Haider are on bail. Therefore, their sureties stand discharged.