RAZA ALI KHAN, J.---The captioned appeals have been filed against the judgment passed by the learned Additional Sessions Judge/Empowered as Judge Anti-Narcotics, Muzaf farabad dated 22.03.2019, whereby , the accused/appellant has been convicted under section 9(c) CNSA, 2001 and has been awarded 8 years rigorous imprisonment and a fine of Rs.1,00,000/-.
'Precise facts of the case are that on the report of Zaffar Afsar , IHC Police Station Saddar , Muzaf farabad FIR No.22/18 was registered at Police Station Sadder Muzaf farabad in the offence under section 9(c) Control of Narcotic Substances Act, 2001 (hereinafter to be referred as CNSA) on 13.10.2018 against the accused/appellant, with the allegation that 1250 grams charas was allegedly recovered from him. Out of recovered substance a small quantity (10 grams) for the purpose of onward proceedings was transmitted to the office of Chemical Examiner .
Chemical Examiner , later on, found the sample sent to him is containing "charas " which could be used for causing intoxication. The police after investigation submitted challan before Additional Sessions Judge Muzaf farabad on 27.10.2018. The charge under section 265-D Cr.P.C. was framed on 15.11.2018. The accused pleaded not guilty and claimed to be innocent, whereupon, the prosecution was directed to lead its evidence in support of the allegation. The prosecution produced all the 5 witnesses cited in the challan/report under section 173 Cr.P.C. At the completion of prosecution evidence, the statement of the accused under section 342 Cr.P.C. was recorded who again pleaded not guilty and produced Muhammad Sarfraz Khan as witness in defence and also got recorded his statement under section 340(2) Cr.P.C. At the completion of trial, the Court below convicted the accused under section 9(c) CNSA and awarded him 8 years' rigorous imprisonment and fine Rs.1,00,000/- vide impugned judgment dated 22.03.2019. The prosecution has filed criminal appeal No.25/2019 for enhancement of serene while convict appellant filed appeal No.18/19 for setting aside the impugned conviction order .
The learned Advocate appearing for the convict appellant argued that the appellant is innocent and has been falsely implicated in the case. He submitted that the prosecution evidence is full of contradictions which create serious doubts in the prosecution story but the Court below failed to appreciate the evidence in its true perspective.
The learned Advocate submitted that under law, the police was bound to send the alleged recovered charas for chemical examination within the period of 72 hours from the time of recovery but in the instant case, the alleged recovered charas was sent for chemical examination after pretty long time which makes the recovery doubtful. The learned Advocate further contended that the laboratory to whom the alleged recovered charas was sent for chemical examination is not a registered laboratory for chemical examination, therefore, the report of the said laboratory is not acceptable in evidence. He finally prayed for acquittal of the convict/appellant. In support of his submissions the learned counsel for the convict/appellant placed reliance on the following case law:
1. 2015 SCMR 291 .
2. PLD 2009 Lahore 362 .
3. 2018 MLD 193 .
4. 2015 P .Cr.LJ 235.
5. PLD 2015 SC 380 .
6. 201 1 PCr .LJ 72.
7. PLJ 2010 Lahore 51 1
8. 2009 PCr .LJ 50 The learned AAG supported the impugned judgment and stated that the accused/appellant is nominated in the FIR, huge quantity of charas was recovered from him. The learned counsel contende d that all prosecution witnesses categorically supported the prosecution version. He submitted that minor discrepancies in such like cases should be ignored. He further submitted that the recovery of contraband is proved beyond any shadow of doubt and the accused is a habitual drug seller and prosecution has successfully proved its case beyond any shadow of doubt.
The learned AAG in support of his submissions placed reliance on 2009 SCMR 291 .
We have heard the learned counsel for the parties and gone through the record of the case as well as case law referred to by the learned counsel for the parties.
There are number of serious issues in this case which raise eyebrows, firstly , we have examined the Chemical Examiner report which reflects that the sample was sent to them on 26.10.2018. It was received in the office on 19.12.2018 and report was prepared and signed on 08.01.2019 and dispatched on the same day, there is no explanation available on record as to whether the sample of "charas" remained in safe custody from 13.10.2018 to 19.12.2018 or not. It is also not explained that who was custodian of the "charas" at Police Station. Secondly , the report of Chemical Examiner reveals one Abdul Khaliq submitted the parcel of "charas" on 19.12.2018. but astonishingly , Abdul Khaliq was not cited as witness in challan nor he was produced by prosecution as a witness. In this view of the matter , the prosecution had not been able to establish that after the alleged recovery of substance so recovered was either kept in safe custody or that the recovered substance had safely been transmitted to the office of chemical examiner without being tampered with or replaced while in transit. Reliance in this regard can be placed on 2015 SCMR 1002 , 2012 SCMR 577 and PLD 2019 Quetta 96. Thirdly , recovery of alleged contraband charas became more doubtful when we noticed that only 10 grams "charas" was sent to Chemical Laboratory for Chemical analysis, while in Laboratory 14.75 grams. "Charas " was received, reduction in weight of substance can be believed (due to dryness) but increase in weight is not possible, which makes the whole prosecution story doubtful. Fourthly , there are serious discr epancies and contradictions in evidence produced by prosecution in this case. The prosecution's case is that 1250 grams charas has been recovered from the convict appellant on 13.10.2018, when the complainant along with other police officials was on patrolling near Neelum Park, Saman Bandi. The prosecution, in order to prove the charge and substantiate the allegation leveled against convict- appellant, produced 5 witnesses at the trial namely Zaffar Afsar IHC (P.W.1), Muhammad Siddique SG 690, (P.W.2), Tanvir Hussain SG 479, (P.W.3), Chief Chemical Examiner , (P.W.4) and Syed Shuja-ul-Hassan (P.W.5).
Zaffar Afsar , P.W.1; complainant recorded his statement on 12.12.2018, wherein, he submitted that vehicle in which they were patrolling was belonging to him and the number of vehicle was ADX 433. Muhammad Siddique, P.W.2, one of the recovery witnesses in his Court statement deposed that they were patrolling in the vehicle which was in the ownership of Tanvir and its number was 812 MD. Tanvir Hussain, P.W.3 the other recovery witness also deposed that they were patrolling on the day of occurrence in his vehicle bearing No.812 AB/MD. Zaffar Afsar , P.W.1, complainant further deposed in this statement that I.D. Card and other documents were also recovered from the convict/appellant but the same were not mentioned in the recovery memo while the other two recovery witnesses deposed that no other thing except the alleged "charas" was recovered from the convict/appellant. The prosecution established the case in the FIR that during patrolling when they reached Saman Bandi near Neelum Park, found an unknown person holding a blue bag in his hand, who tried to hide his presence, whereupon, they caught him and during search under section 54 Cr.P.C. 1250 grams charas was recovered from him. Zaffar Afsar , complainant stated in his statement that at the time of recovery he was wearing uniform while the other recovery witnesses deposed that on the day of occurrence they were not in uniform. These circumstances make the whole prosecution story doubtful that the complainant and his companions were not in uniform but despite that the convict/appellant while seeing them tried to hide his presence because the convict/appellant was not aware of the fact that they are police officials. Although, now it is settled that police witness can be relied upon especially in the cases under CNSA but yet where only police personnel were witnesses, Court must securitize evidence with greater degree of circumspection. Contradictions in the deposition of the prosecution witnesses with regard to weight of contraband items had created serious doubts in prosecution's case. Fifthly , as per prosecution case, the search proceedings were conducted by P.W.1 Zaffar Afsar , IHC and he also prepared complaint Exh.P A as well as recovery memos Exh.PS, however , record of the case reveals that sealed parcels contained monogram of "RA" which does not correspond with the name of P.W.1 Zaffar Afsar and there is no explanation to this effect which is fatal to the prosecution case. In this regard, reliance can be placed on the judgme nt of Hon'ble Supreme Court of Pakistan titled Akhtar Iqbal v . The State ( 2015 SCMR 291 ) wherein at page 293 it has been observed as under:- After allegedly recovering the contraband substance from the boot of the motorcar driven by the appellant the parcels of the recovered substance were sealed with a monogram reading as SJ and it had been disclosed by Mati-ur-Rehman (P.W.2) before the learned trial Court that the said monogram belonged to one Sameen Jan Inspector who was not even posted at the relevant Police Station at the time of the alleged recovery from the appellant and as a matter of fact at the said time the said Inspector was serving at a Police Station in Quetta. Mati- ur-Rehman (P.W.2) had not been able to advance any explanation whatsoever as to why the recovery officer namely Assistant Director Rehmat had not put his own monogram on the seals of the parcels prepared by him and as to why he had used the monogram of some other officer who was not even posted at the relevant Police Station at the relevant time."
No doubt, there is a slight difference in the manners and standard of proof in the cases registered under the Control of Narcotic Substances Act but the prosecution always bound to discharge the basic onus of proof. It is well settled principle of Criminal Jurisprudence that burden to prove the guilt of an,, accused lies on the prosecution, though, Section 29 of CNSA, creates some exception to general principle but even in presence of Section 29 of CNSA, prosecution cannot be absolved from its basic duty to prove the case again st accused beyond any shadow of doubt. Evidence produced by the prosecution in this case is full of contradictions and discrepancies which make the whole prosecution story doubtful. It is also fundamental principle of Criminal Law that any doubt if arises in the prosecution story , the benefit of the same will go to the accused and it is not necessary that there should be many circumstances creating doubt, if single circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as matter of right.
It is pertinent to mention here that the illegal business of intoxicant substance narcotics is on its highest level in all over the Pakistan and Azad Jammu and Kashmir and to stop the same, the Police Department and Courts should have to take coercive steps, however , no one can be punished until the prosecuti on proves the allegation without any shadow of doubt and if the defence succeeds to create slightest doubt in the prosecution story then the benefit of same always -gives to the accused, which resulted into acquittal of the accused . The investigating Agency need to remain more conscious and careful during investigation of such like cases and especially while preparing challan must cite all the relevant witnesses, like complainant, recovery witness, persons in whose custody the alleged recovered substance remained and in whose hand the parcel was sent to Chemical Examiner . It is also necessary to send parcel for chemical examination well within time, so that no doubt could come in the mind of a prudent person.
The facts of the present case raised substantial concern pertaining to investigation of the case, particularly the manner in which recovery , safe custod y, transmission and safe transfer of the recovered contraband and investigation was conducted. We have found serious omissions and flaws in the investigation not only in the case in hand but it became the day by day practice, resultantly , these investigations lapses fortified the presumption of innocence in favour of the accused and in such cases, the benefit of doubt arising out of a faulty investigation, accrues in favour of the accused.
We would like to direct Inspector General of Police to sensitize the police officials about the safe custody , safe transmission and safe transfer of drugs/substance recovered from the place of recovery . He is further directed to issue guidelines/directives to all those police officials assigned cases under CNSA to comply with provision of law, rules and directions of the superior Courts. Inspector General Police is also directed to liaison with Director FSL and Chemical Examiner to comply with the full protocols as provided in Section 36 of CNSA, so that the cases under CNSA may not result in failure. In case of failure in future cases, concern ed police officials shall expose themselves to be dealt strictly in accordance with law .
As the prosecution has failed to prove its case beyond any shadow of doubt rather the prosecution story especially the Place of occurrence, recovery , safe custody and transmission of alleged contra band are highly doubtful, which cannot be ignored while deciding the case and no conviction can be recorded on the basis whereof, hence, the conviction recorded by the Court below is not justified, resultantly , the appeal filed by convict/appellant is accepted and he is acquitted of the charge and counter appeal No.25/19 filed by the State for enhancement of the sentence having no substance is dismissed. Copy of this judgment shall be transmitted to Inspector General of police Azad Jammu and Kashmir for compliance.