Sardar Muhammad Sarfraz Dogar , J.--Tanveer Akhtar , and Shafqat Hussain (appellants) were entangled in case FIR No. 13/2012, dated 28.05.2012, registered with the Police Station ANF, Faisalabad, in respect of an offence under Section 9(c) of The Control of Narcotic Substances Act, 1997 and were tried by the learned Judge Special Court CNS, Faisalabad. The learned trial Court seized with the matter in terms of judgment dated 30,05.2013 convicted the appellants under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced them to undergo Imprisonment for Life, Tanveer Akhtar appellant was directed to pay Rs. 4,00,000/-as fine and in case of default thereof, further undergo Simple Imprisonment for four months whereas fine of Rs. 10,00,000/- was imposed upon Shafqat Hussain, in default whereof, he was directed to serve Simple Imprisonment for one year. The benefit of Section 382-B, Cr .P.C, was also bestowed upon them.
2. Being aggrieved of the convictions and sentences, the appellant Tanveer Akhtar challenged the same by filing Criminal Appeal No. 892 of 2013 and appellant Shafqat Hussain preferred Criminal Appeal No. 1584 of 2013 whereas appellant Riaz Ahmad lodged Criminal Appeal No. 355 of 2015 against confiscation of Suzuki-Pick Up No. LES-10-5907. All these matters being outcome of the same judgment arising out of the same FIR as well as interlinked with each other are disposed of together through this consolidated judgment.
3. The prosecution story according to the written complaint (Exh.P A) of Muhammad Farooq Azam Inspector (PW- 3), on the basis whereof formal FIR (Exh.PA/1) was chalked out wherein it was alleged that on 28.05.2012 upon spy information that accused Shafqat Hussain would come at Faisalabad near Bando Khan Hotel/PSO Pump Jaranwala Road for delivery of narcotics to his customer at 3:30 P.M. On this information complainant constituted raiding party consisting upon Maqbool Ahmad ASI, Shahbaz Anjum constable driver and other officials of P.S. ANF Faisalabad under the supervision of A.D. Afzal Asim left the police station through official vehicle alongwith informer and reached pointed place, Jaranwala road Faisalabad at about 3:00 and started secret surveillance. At about 4:00 PM on vehicle LES-5907 Pickup Suzuki white colour came within view from side of Faisalabad to Jaranwala Road.
On person was in the vehicle who stopped near petrol pump PSO about whom the informer told that the said person is accused Shafqat. After some time one person came from opposite direction of the petrol pump and met Shafqat and they remained busy in conversation with each other . After some time Shafqat accused from rear portion of the pick up took a tora of white colour and delivered it to the said person. On this the accused persons were apprehended. The person who came on foot there on asking told his name Tanveer Akhtar whereas the person who was in pick up told his name Shafqat Hussain. On interrogation about the narcotics accused Tanveer Akhtar produced himself 13 packets of charas and 4 packets of opium from the tora of white colour which was in his hand whereas Shafqat Hussain produced 90 packets of charas from the secret cavities of the said vehicle, taken into possession vide (Exh.PB/PC). The charas and opium recovered from Tanveer Akhtar accused was weighed and each packet of charas and opium was of 1200/1200 grams. In this way, total charas is 15 kilograms & 600 grams and opium is 4 K.G & 800 grams were recovered from the possession of Tanveer Akhtar accused. Out of recovered charas/opium, 10 grams from each packet was extracted for chemical analysis and the case property was sealed into two bags (toras) whereas charas recovered from Shafqat Hussain was also weighed and each packet of 1200/1200 grams, total 108 kilograms. Investigating Officer separated 10/10 from each packet and prepared 90 sealed parcels for chemical analysis and remaining was also sealed into three separate parcels as case property .
4. After registration of formal FIR (Exh.P A/I), investigatibn was conducted by Muhammad Farooq Azam Inspector /Investigating officer (PW-3), who, after completing the investigation declared the appellants guilty of offence and prepared report under Section 173, Cr .P.C. which' was forwarded to the court ofcompetent jurisdiction for trial.
5. The learned trail Court formally charge sheeted the appellants, to which they pleaded not guilty and claimed trial.
The prosecution has produced as many as four witnesses besides tendering reports of Punjab Forensic Science Agency (Exh.PM, Exh.PN and Exh.PQ) in documentary evidence. By closing the prosecution case, the learned trail Court examined the appellants under Section 342, Cr.P.C. wherein they professed their innocence. The appellants did not opt to appear as her own witness in terms of Section 340(2), Cr.P.C. After hearing the arguments advanced by the learned counsel appearing on both sides, the learned trail 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.
6. Learned counsel for the appellants have contended that the appellants have been entangled in a false case by the police because of animosity with Muhammad Boot, who close to the Investigating Officer; that all the prosecution witnesses are police officials so there is a clear violation of Section 103. Cr.P.C. that the occurrence as narrated in the FIR had not taken place at all and that during the course of investigation nothing has been recovered from the possession of the appellants; that there are material contradictions in the prosecution evidence with regard to the mode and manner of recovery as well as sampling of alleged recovered narcotic substance, which are sufficient to prove that the prosecution has failed to prove its case beyo nd any shadow of doubt against the appellants, therefore, appellants deserve acquittal.
7. On the other hand, learned Law Officer has opposed the contentions advanced on behalf of the appellants and stated that in view of the huge quantity of recovered narcotic substance, the learned trial court has rightly convicted the appellants and that the prosecution has proved its, case by producing reliable and independent evidence beyond any shadow of doubt.
8. We have heard the arguments advanced by the learned counsel for the appellants as well as learned Law Officer and have minutely perused the record available on the file.
9. After careful scrutiny of the materials on record, we come to the conclusion that the prosecution has to prove its case beyond any reasonable doubt against the appellants as the depositions of material prosecution are tainted with contradictions as well as discrepancies, which leads us to formulate an opinion that the prosecution evidence is not up to the mark and no conviction can be based upon it.
10. First of all we discuss the case of Tanveer Akhtar accused. PW-2/Abu Zar Muhammad Afzal/Moharrir , who chalked out the FIR (Exh.P A/1), deposed that I.0 of this case handed over me 103 scaled parcels samples of Charas and four sealed parcels of opium and five parcels of remaining case property and other articles as per recovery memos for onward transmission to the office of Chemical Examiner , Lahore and same samples handed over to Muhammad Qasim Constable on 30.05.2012 for its onward transmission to the office of Chemical Examiner Lahore. Whereas Muhammad Qasim Constable (PW-1) deposed that Abu Zar Muhammad Afzal ASI/Moharrir handed over me 103 sealed parcels of Charas and four sealed parcels of opium total 107 parcels for its onward transmission to PFSA, Lahore and I deposited the same in the said office same day while facing cross-examination deposed that on 28.05.2012 I received the parcels early at 5:45 AM and deposited in the concerned office at 02;00 PM. How it is possible that raid was conducted on 28-5-2012 at 8:00 p.m while the carrier Muhammad Qasim Constable (PW-1) deposed that he received the samples parcels at on 28-5-2012 at 5:45 a.m. Meaning thereby , the prosecution witnesses are not consistent with regard to receiving the case property and sample parcels in the Police station and keeping in the same in safe custody as well as safe transmission to the Punjab Forensic Science Agency , which creates dent in the prosecution case.
11. Apart from what has been discussed above, it is also noticed that Muhammad Qasim Constable (PW-1) deposed that on 30.05.2012 he received 103 sealed parcels said to contain sample of charas and four sealed parcels of opium for its onward transmission in the office of chemical examiner Lahore, which he deposited on the same day intact. Whereas, a bare look of report of the Punjab Forensic Science Agency Reports (Exh.PM/Ex.PN) reflects that the sample parcels had been dispatched by the Excise and Taxation Office Faisalabad. We have required the learned counsel for the State to explain as to how the samples of the recovered substance had come in the hands of the Excise and Taxation Office, Faisalabad and what was the evidence available on the record to confirm that the same had been kept in safe custody while in possession of the Excise and Taxation Officer, Faisalabad but after going through the record of this case from cover to cover he has failed-to explain the same as there is no evidence whatsoever available on the record in those respects. Guidance is sought from Muhammad Abbas v . The State (2006 YLR 2378 ). The relevant extract from the said judgment is reproduced as under: "The report of the Chemical Examiner (Exhibit-PE), however , shows that the docket of the samples of the recovered substance had been prepared on 6.7.1998 and the said samples had been dispatched by the Excise and Taxation officer, Sheikhupura and not by the local police. We have required the learned counsel for the state to explain as to how the samples of the recovered substance had come in the hands of the Excise and Taxation Officer; Sheikhupura and what was the evidence available on the record to confirm that the same had been kept in safe custody while in possession of the Excise and Taxation Of ficer."
In view of the above quoted dictum and the evidence available on the record, it is crystal clear that not only the reports of Punjab Forensic Science Agency (Exh.PM/Ex.PN) are in opposition with the prosecution evidence but the safe custody of the recovered substance as well as sampling process of alleged recovered narcotic substance and safe transmission of sample parcels to the office of PFSA had also not been established by the prosecution.
There are contradictions in the case of the prosecution case. The Court has to examine the evidence from the starting point in order to reach to an inescapable conclusion on the basis of reasoning keeping in mind the legal principles and after satisfying the following constituents:--
(i) Recovery of narcotics from the accused;
(ii) Safe custody of recovered substance;
(iii) Safe transmission of recovered substance to Government Analyst/Chemical Examiner and
(iv) The proof that the recovered substance is narcotics/contraband substance within the purview at CNSA, 1997.
Needless to mention here that the chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory . The prosecution must "establish that the "chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. In this regard, guidance can be sought from the case of The State through Regional Director ANF versus Imam Bakhsh" (2018 SCMR 2039 ).
12. There were so many omissions and contradictions in the testimonies of prosecution witnesses affecting the entire fabric of the prosecution case. All the above contradictions are material in nature and cogitates that the material prosecution witnesses of the case are inconsistent and thus their testimonies lacks intrinsic value and inherent worth and cannot be safely relied upon. There were so many omissions and contradictions in the testimonies of witnesses affecting the entire fabric of the prosecution case. All the circumstances mentioned above are sufficient to believe that the prosecution case is highly doubtful and based on un-natural and unbelievable story .
Guidance is sought from "Muhammad Rafique and others v. The State and others " (2010 SCMR 385) and "Lal Khan v . The State " (2006 SCMR 1846 ).
13. Our careful appraisal and independ ent analysis of the evidence on the record, the prosecution evidence deserves to be rejected, creating an impression on our minds that the prosecution has failed to prove the case against the appellant beyond a reasonable doubt. Keeping all the above possibilities in mind and raising necessary inferences from the facts available on the record we have arrived at conclusion that a possibility cannot safely be ruled out of consideration regarding the appellants having been falsely implicated in the present criminal case and, thus, we have decided to extend the benefit of doubt to the appellants.
14. The crux of above discussion is that the prosecution has badly failed to prove its case against the appellant beyond any shadow of doubt, therefore, we have inferred the conclusion that the findings of learned trial Court regarding conviction of the appellant are based on misreading, non-reading and mis-appreciation of evidence available on record and are not sustainable in the eye of law , therefore, the appellants deserve acquittal.
15. For the above reasons, Crl. Appeal No. 892 of 2013 is allowed the judgment dated 30.05.2013 to the extent of Tanveer Akhtar appellant is set aside, and he is acquitted of the charge. The appellant is in custody . He be released forthwith if not required in any other case.
16. As far as case of Shafqat Hussain, appellant is concerned the prosecution in the instant case was set into motion with the complaint (Exh.P A) which was lodged by Muhammad Farooq Azam Inspector (PW-3) on the basis of alleged recovery of 108 kilograms charas from the possession of the appellant, which resulted into registration of FIR (Exh.P A/1). Shafaqat Hussain got recovered 90 packets each containing 1200 grams total weighing 108 kilograms of charas from the secret cavities of vehicle Suzuki Pick up No. LES-590 7. In order to prove its case, the prosecution produced Muhammad Shahbaz Constable (PW-4) being one of the recovery witnesses, who deposed in line with the prosecution case and fully supported the recovery proceedings conducted by the complainant of the case. The other material witnesses were Muhammad Farooq Azam, Inspector complainant/Investigating Officer (PW-3), Muhammad Qasim (PW-1) and Abu Zar Muhammad Afzal/Moharrir (PW-2). In their &positions, they categorically narrated the manner of recovery. The charas which was taken into possession vide recovery memo (Exh.PC) was also produced before the learned trial Court and it was marked as P-3. Perusal of record reveals that both these witnesses were though thorou ghly cross-examined by the defence but they remained consistent on all the material points and fully supported the recovery ef fected from the appellant.
17. Abu Zar Muhammad Afzal (PW-2) deposed about the safe custody of the case property and transmission of the sample parcels to the office of Chemical Examiner/Punjab Forensic Science Agency . While analyzing the preponderance of prosecution evidence we have also gone through the report of PFSA which was tendered in evidence as (Exh.PQ), the same provides due corroboration to the prosecution case.
18. After having a critical analysis of the prosecution evidence, we are of the considered view that, prosecution has successfully discharged the initial onus of proof and after leading cogent and convincing evidence in support of the charge, prosecution has successfully shifted the onus of proof towards the appellan t, who in terms of Section 29 of CNSA, 1997 was obliged to refute the same through a tangible defence. We when examined the statement of appellant recorded under , Section 342 of, Cr.P.C., it appears that defence plea was of general and vague nature which in no way can be termed as sufficient to rebut the overwhelming and confidence inspiring evidence of the prosecution. Even the appellant has failed to produce any witness in support of his defence.
19. So far non-association of public witnesses in, the recovery proceedings is concerned, we are inclined to observe that CNSA, 1997, being special law was promulgated to curb the menace of smuggling of narcotics. The legislature has incorporated Section 25 in CNSA, 1997 by virtue of which the applicability of Section 103 of, Cr.P.C. was specifically excluded to the procee dings conducted under the said Act. The prosecution witnesses being members of the raiding party were the natural witnesses and their testimony cannot be thrown away merely on the ground that they were the employees of the police force. Even otherwise in absence of any animosity , the evidence of police witnesses cannot be discarded. The police witnesses are as good and reliable witnesses as any private witness can be. Reliance in this respect if needed, can be placed on Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar (PLD 2009 Supreme Court 39).
20. In the light of evidence produced by the prosecution, we are of the considered opinion that the prosecution has successfully discharged initial onus of proof beyond any shadow of doubt. Resultantly , the burden shifted to the defence to discharge said onus and prove innocence but the defence has miserably failed to discharge the said burden in terms of Section 29 CNSA, 1997. Apparently there is no plausible reason for false implication of the appellant.
21. For what has been discussed above, we have no doubt in our mind that the prosecution has successfully proved its case against the Shafqat Hussain appellant without any hint of doubt by producing cogent and convincing evidence, both oral as well as documentary . The oral version was even supported by the report of PFSA. The learned trial Court in the circumstances has rightly recorded the conviction of the appellant after properly appraising the evidence. We find no illegality or infirmity in the impugned judgment of the learned trial court, which in all respects is unexceptionable. The judgment under challenge requires no interference by this Court in exercise of appellate jurisdiction.
22. The nutshell of the above discussion is that we do not find any substance in this appeal. Resultantly the same is hereby dismissed while maintaining the conviction and sentence of Shafqat Hussain appellant as awarded by the learned trial Court by way of judgment dated 30.05.2013.
23. The facts in necessary for adjudication of Crl. Appeal No. 355 of 2015 are that on 28.6.2012 the complainant alongwith other police officials, in respon se to a spy information, apprehended the appellants by intercepting the car in question, which was driven by the appellant and huge quantity of contraband was allegedly recovered from their possession.
24. Undoubtedly , the vehicle can only be confiscated in the light of Section 32 of The Control of Narcotic Substances Act, 1997 which reads as under:
32. Article connected with narcotics .--(1) Whenever any offence has been committed which is punishable under this Act, the narcotic drug, psychotropic substance or controlled substance, materials, apparatus and utensils in respect of which or by means of which such of fence has been committed shall be liable to confiscation.
(2) Any narcotic' drug, psychotropic substance or controlled substance lawfully imported, transported, manufactured, possessed, or sold alongwith, or in addition to, any narcotic drug, psychotropic substance or controlled substance which is liable to confiscation under subsection (1) and the receptacles or packages, and the vehicles, vessels and other conveyances used in carrying such drugs and substances shall likewise be liable to confiscation: Provided that no vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the of fence was being, or was to be, committed.
Underlining is for emphasis .
It is discernible from the above that the above-said provision of law casts a duty upon the Court that before passing an order for confiscation of a vehicle to determine the fact that as to whether the owner of such vehicle was aware of the fact that offence was being, or was to be, committed by way of such vehicle, whereas, it is evident from the impugned order that this mandatory provision was not adhered by the learned , trial Court, while passing the order of confiscation of the velficle in question. Although the prosecution has alleged 90 packets of charas were recovered from a secret cavity of car in question albeit with absence of site-plan regarding impounded the vehicle in question.
25. Apart from the above discussion, this Court in the case of Javed Havat and another vs. The State (PLD 2006 Lahore 167), while interpreting the scope of Section 32 of "The C.N.S.A., 1997" has outlined three implied situations which may make it permissible for seizure of a vehicle or conveyance in a case of narcotics. The relevant extract from the same is reproduced below: "7. xxxx However , sub-section (2) of Section 32 of the said Act is the only provision which expressly allows confiscation of a conveyance implying that a conveyance can also be seized but the said section is confined in this respect only to a particular and specified situation, i.e. where the conveyance is carrying unlawful narcotics along with lawful narcotics. Even in such cases the proviso to sub-section (2) of Section 32 hastens to add that "no vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the offence was being, or was to be, committed". We may add here that Section 12 of the Control of Narcotic Substances Act, 1997 contains a prohibition against acquisition and possession of assets derived from narcotic offences and the word "assets" has been defined in Section 2 (b) of the said Act, By virtue of the provisions of Section 19 of that Act the assets of a person convicted for an offence under the said Act shall, in a particular situation, stand forfeited to the Federal Government. It goes without saying that in a given case such assets may include a conveyance. A forfeiture of such a conveyance may be possible after a seizure and confiscation thereof.
This is the second situation whereby implication a seizure of a conveyance may be contemplated under the Control of Narcotic Substances Act, 1997. A possible third situation can also be visualized by us in this context and that is where the conveyance is seized because the conveyance itself is to provide proof regarding possession and recovery of narcotics. Such a seizure may be authorized by the provisions of clause (c) of sub-section (1) of Section 21 and also clause (a) of Section 22 of the Control of Narcotic Substances Act, 1997 but in order to call the said provisions in aid for this purpose we would have to equate a conveyance with an "article" as the said provisions expressly speak of an "article" which "may furnish evidence of the commission of an offence punishable under this Act." We may observe in this context that when a conveyance is used for keeping or concealing narcotics in its secret chambers, cavities or compartments, etc. then such secret chambers, cavities or compartments, etc. may become evidence which may be seen by a Court trying such a case and, thus, seizure of such a conveyance may be necessary to "furnish evidence of the commission of an offence punishable under this Act." Apart from the above mentioned three implied situations we have not been able to find any other express or implied situation or provision in the context, of the Control of Narcotic Substances Act which may make it permissible for seizure of a vehicle or conveyance in a case of narcotics."
26. It is manifest from the above referred portion of judgment that a vehicle can be seized under the Control of Narcotic Substances Act, 1997 only in three situations, i.e. Firstly , where it is carrying unlawful narcotics along with some lawful narcotics, secondly , where it is a part of the assets derived from narcotic offences and, thirdly , where narcotics have been recovered from its secret chambers, cavities or compartments, etc. In the case in hand, it is not disputed that the narcotic substance was allegedly recovered from the dickey of the car and the same had not been recovered from any secret chamber , cavity or compartment, etc. of the vehicle in question, therefore, it cannot be said that vehicle was being used for transporting the recovered narcotics. Thus, seizure of the vehicle in question has appeared to us to be not only'unnecessary but also unwarranted under the Control of Narcotic Substances Act, 1997. Hence, we are entertaining no amount of doubt that the order passed by the learned Judge Special Courts CNS, Faisalabad is bereft of legal worth/judicial efficacy , therefore, no reliance can be placed on the same.
27. For the foregoing reasons, the impugned judgment dated 30.05.2013 passed by the learned Judge, Special Court CNS, Faisalabad to the extent of confiscating the car bearing Registration No. LES-5907 in favour of the State is illegal and unlawful and the same is set-aside. As a sequel of same, the instant appeal is allowed and the impugned judgment dated 30.05.2013 to the extent of confiscation of Suzuki Pick up No. LES-5907 is set aside and the said car is directed to be handed over to its original owner after due verification by the concerned SHO. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.