AALIA NEELUM, J.---The appellant-Syed Moon Ali Shah son of Sved Ghulam Hamdani, caste Syed, resident of Khuoo Pak Police Station Satghara, District Okara, was involved in case FIR No.378 of 2017, dated 15.04.2017, offence under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Saddar Okara, District Okara and was tried by the learned Addl. Sessions Judge, Okara. The learned trial court seized with the matter in terms of judgment dated 08.11.2018, convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo rigorous imprisonment for life with the direction to pay Rs.1,00,000/- as fine and in case of default in payment thereof, to further undergo simple imprisonment for 06-months. The benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant, Feeling aggrieved, the appellant has assailed his conviction through filing the instant appeal.
2. The prosecution story as alleged in the FIR (Ex.P A) lodged on the complaint (Ex.PC) of Aziz Ahmad Inspector (PW-2) is that on 15.04.2017 at about 7:30 a.m., he (PW-2) along with Muhammad Aslam, SI (PW-5), Muhammad Ahmad TASI (given up PW), Ghulam Farid 1215/C, Noor Sultan 808/C and Naveed 1428/C was present at Chowki Faisalabad Road in connection with establishing picket, where he (PW-2) received spy information that Cultus Car having white colour bearing No. 1859-LEA was coming from the side of Gogera and if intercepted the opium could be recovered from the secret cavities of the said car. On this information, he (PW-2) along with police employees started checking of the vehicles after establishing pickets and in the meanwhile, a car came from the Gogera side, which was stopped and during checking 7-1/2 packets of opium were recovered under the driver seat and under left side seat of the Driver from the secret cavities of seat eight packets of opium were recovered. During weighing each packet was found 1200-grams opium and on weight of 1/2 packet, it was found 500-grams. Out of the recovered substance 60-grams opium was separated for chemical analysis and from 500-grams, 25-grams opium was separated for chemical analysis. The recovered substance and Cultus car were taken into possession vide recovery memo (Ex.PB). Thereafter , the complainant (PW-2) drafted complaint (Ex.PC) and sent the same through Naveed 1428/C to the Police Station for registration of the formal FIR (Ex.P A).
3. Thereafter , the investigation was entrusted to Muhammad Aslam SI (PW-3), who being investigating officer of the case visited the place of occurrence and prepared the site plan (Ex.PD) of the place of recovery , recorded the statements of the prosecution witnesses under section 161, Cr.P.C. and also sent the appellant to judicial lock up by the order of the learned Area Magistrate. Having found the accused guilty , the Investigating Officer (PW-3) prepared report under section 173, Cr.P.C., while placing his (the appellant) name in Column No.3 of the challan and sent the same to the court of competent jurisdiction.
4. The learned trial court formally charge sheeted the appellant on 29.07.2017, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as five witnesses. Muhammad Raza Khan, ASI (PW-1) drafted the formal FIR (Ex.P A), Aziz Ahmad Cheema, Inspec tor (PW-2) is the complainant, Muhammad Aslam, SI (PW-3) is the recovery witness, Waris Ali 639/HC (PW-4) is the witness, who received 32 sealed packets said to contain opium for keeping the same in Malkhana for safe custody along with cultus car and Muhammad Aslam, SI (PW -5) is the Investigating Of ficer.
5. On 10.10.2018, the learned ADPP gave up PW-Muhammad Ahmed, ASI as being unnecessary and after tendering the report of Punjab Forensic Science Agency , Lahore (Ex.PE and Ex.PE/1) closed the prosecution evidence.
6. The appellant was also examined under section 342, Cr.P.C, wherein he neither opted to appear as his own witness in terms of section 340(2), Cr.P.C, nor opted to produce any defence evidence and while replying to a particular question that why the PWs had deposed against him, the appellant made the following deposition:- "All the PWs are police officials and the complainant of this case was Inspector/SHO whereas the other recovery witnesses namely Muhammad Raza ASI and Waris All 639/HC were subordinate to the complainant of this case, whereas Muhammad Aslam SI the Investigating Officer of this case was also subordinate in rank to the complainan t of this case and also being SHO, the complainant of this case was senior to the said investigating officer. None of the independent pers on had supported the false prosecution case. The complainant of this case registered a false case against me by fabricating a false and afterthought version by showing fake place of occurrence and that by maneuvering the alleged contraband and the car by showing fake proceedings while sitting at police station. It is pertinent to mention here that nothing was recover ed from me. As per prosecution's own case, the alleged car was not owned by me and that I have no nexus with the said car. As per prosecution own evidence, there was no secret cavity available underneath the seats from where the alleged narcoti c was stated to be recovered.
The alone fact is sufficient to discard the false prosecution case. There is material contradiction in the statement of PWs as well. On the alleged night of occurrence two FIRs 239/17 under section 9-C, CNSA was registered at Police Station Goger a against Manawar Hussain, ASI whic h is Ex.DA and FIR No.663/17 dated 15.04.2017 was registered at Police Station A-Division Okara against Muhammad Saleem Mochi and Shoukat alias Shouki Nai under section 9-C CNAS at Police Station A-Div ision Okara which is Ex.DB.
During the course of investigation, the factum of registration of above said cases were very much in the knowledge of the I.O. and complainant of this case and that I pleaded from very outset that I have no nexus with the said person and that the complainant and other higher police authorities made me scape goat and victimized me by lodging this false case against me under the influence of the then MNA who was my political rival. I belongs to Syed Family . I also hail from a respectable political family who is contesting the election in the local constituency for a long time and the then MNA just to take the revenge of political vendetta while using his influence managed the police and lodged this false FIR to defame me and my political family . I have no any criminal record at my back and it is the first ever case which was registered against me due to the above said reason falsely . I am innocent."
7. After hearing the arguments advanced by the learned counsel for the appellant as well as the learned ADPP , 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 appellant in the above stated terms.
8. We have heard the arguments advanced by the learned counsel for the appellan t as well as the learned Deputy Prosecutor General and have minutely perused the record available on the file.
9. After a careful examination of the statements adduced by the prosecution witnesses in the Court it has become clear that so far as the recovery of 7-1/2 packets of Opium (P-2) from secret cavities under the driving seat and 8 packets of Opium (P-2), from secret cavities under the left side seat of the car, total weighing 18500 grams, driven by the accused has not been proved by the prosecution. Aziz Ahmad Cheema, Inspector (PW-2) the complainant has admitted that, "As per recovery memo Ex. PB the key of alleged car was not taken into possession by A me...As per my complaint Ex.PC I straightway mentioned the name Syed Moon Ali son of Ghulam Samdani Caste Syed resident of Khuoo Pak. It is correct that as per complaint drafted by me, I had not interrogated Syed Moon Ali accused regarding his name or his parentage and address etc....It is however correct that the alleged parcels neither signed by me nor signed by the PWs of this case. It is correct that parcel P-2 is before me, the same also did not bear my seal AA and that the same was also not signed by me." In view of above deposition of Aziz Ahmad Cheema, Inspector (PW-2)-the complainant, it is to be examined, as has rightly been pointed out by the learned counsel for the appellant that the prosecution has to prove that the recovered contraband was recovered from the secret cavities of the vehicle allegedly driven by the appellant. In the present case Muhammad Aslam S.I. (Retd) (PW-5)-investigating officer has admitted that, "As per rough site plan Ex.PD, the only point "B" shows the presence of Muhamm ad Aslam SI and Muhammad Ahmad ASI at that point. No other place was pointed out to me where Aziz Ahmad Cheemab Inspector the complainant of this case was allegedly present at the place of recovery . Nothing was added or omitted by me during preparation of the rough site plan Ex.PD. Had presence of complainant pointed out to me, I would have shown the same in the rough site plan." He (PW-5) also admitted that, "I have also perused the proceedings of recovery prepared by complainant of this case and even key of the alleged car was not recovered from the accused and that the same was not taken into possession by the complainant of this case." This creates doubt about the prosecution case. On the other hand, the Investigating Officer has not cared to inspect the secret cavities of the vehicle from which alleged contraband substance. was recovered. Muhammad Aslam S.I. (Retd) (PW-5) investigating officer has admitted that, "As per record, I did not inspect the alleged car which was taken into possession by the complainant of this case. I had not inspected the said car from where allegedly the alleged narcotics was recovered, therefore I did not make any sketch of the inspection of the said car. "Failure of the Investigating Officer to inspect the alleged vehicle further strengthens the presumption favourable to the appellant. However , the learned trial court inspected the alleged vehicle. In this regard evidence of Muhammad Aslam S.I. (Retd) (PW-5) investigating officer reads as following, "At this stage, counsel for accused requested the court to examine car parked out side the court room. Request is allowed. I along with Rao Asghar Ali ADPP for the State, Mr. Akhtar Hussain Bhatti, Advocate, learned counsel for accused Investigating Officer Muhammad Aslam examined the car in their presence.
Muhammad Aslam Inspector/I.O. said that secret cavities were present under the driving seat but now no such secret cavity is available in the car underneath the seats. Even court has sought the assistance of denter who pulled out the seat and examined minutely and there was not any kind of sign of any cavity was found underneath the seats." Non presence of cavities in the vehicle throws clouds of doubt on the testimony of prosecution witnesses. It is mandatory on the part of the prosecu tion to prove that accused was transporting the contraband in the manner alleged in the complaint (Ex.PC) and FIR (Ex.P A). All ingredients of the offence for which the appellant was convicted and sentenced were to be proved by the prosecution to the satisfaction of the Court. It is also a well-settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof and for that a high degree of assurance is necessary to convict the accused. It was for the prosecution to prove that the alleged opium (P-2) was recovered from E the secret cavities of the alleged vehicle. But the prosecution failed to establish that the alleged contraband substance was recovered from the secret cavities of the alleged vehicle driven by the appellant.
10. There is another aspect of the case, we come to the conclusion that the prosecution has also not established safe custody of recovered substance. There are contradictions in the case of the prosecution as to preparation of parcels of samples and the remaining case property by Aziz Ahmad Cheema, Inspector (PW-2)-the complainant.
It is the prosecution case that on 15.04.2017, Aziz Ahmad Cheema, Inspector (PW-2)-the complainant recovered 7- 1/2 packets of Opium (P-2) from secret cavities under the driving seat and 8 packets of Opium (P-2), from secret cavities under the left side seat of the car, total weighing 18500 grams. On weighing 15 packets, each weighing 1200 gram and one packet contained 500 grams opium. From 15 packets, Aziz Ahmad Cheema, Inspector (PW-2)- the complainant separated 60 grams opium from each packet containing 1200 grams whereas from one packet containing 500 grams separated 25 grams opium and prepared separate sealed parcels of samples and remaining contraband substance. Aziz Ahmad Cheema, Inspector (PW-2)-the complainant did not state exact number of parcels prepared by him (PW-2). Howev er, Waris Ali 639/HC (PW-4) deposed during examination-in-chief, "That on 15.04.2017 I was posted at P.S Saddar Okara as Moharrar . On the same day, the I.O. of this case handed over me 32 sealed parcels said to contain opium for safe custody in Mal Khana along with a Cultus Car." Similarly Muhammad Aslain S.I. (Retd.) (PW-5)-investigating officer deposed that, "I reached police station, locked the accused in police lock up and handed over the case property opium (32 sealed parcels) along with car Cultus white colour to Moharrar of police station." Whereas, Aziz Ahmad Cheema, Inspector (PW-2)-the complainant deposed during cross-examination that, "Learned counsel for accused stated that only one bag has been produced before court while it has been mentioned in examination in chief that two bags P-2 and P-3 were produced. The contention of learned counsel for accused carries weight.
Witness Aziz Ahmad at this stage informed that all the recovered packets were sealed in bag P-2 which were recovered from secret cavities of car. The case property was sealed in one bag. Learned prosecutor objected its de-sealing, therefore, it is appropriate that P-3 will not be read in evidence. The entire narcotics/case' property will be considered P-2." The material contradictions in between the evidence of the prosecution witnesses were really omissions as regards details of the number of percales prepared by the complainant and handing over to the Moharrar . It is unsafe to rely upon the eviden ce of eye-witnesses because of contradictions and inconsistencies in their evidence. In the trial, it was also necessary for the prosecution to establish by cogent evidence that the alleged opium weighing 18500 grams seized from the vehicle was kept in safe custody . There is no explanation for this failure to establish safe custody of recovered opium weighing 18500 grams. From time of the seizure at 01:00 a.m. (night) on 15.04.2017, till its depos it in the 'Malkhana' on the same day, it is not established that the samples and the recovered substance were kept in the "Malkhana" on 15.04.2017. Waris Ali 639/HC (PW-4) deposed durin g cross-examination that, "As per Madd No.83 in case FIR No.378/17 Muhammad Aslam Majhayana Inspector had deposited opium weighing 18,500 grams on 19.04.2017. As per Madd No.83 at serial No.2 in case FIR No.378/17, the quantity of opium 60/60 grams is mentioned which was forwarded to the PFSA. Similarly in the column of detailed report it is only mentioned that 60/60 grams recovered opium was sent to the office of PFSA Lahore. As per serial No.3 Madd No.83 in case FIR No.378/17 Aziz Ahmad Inspector had deposited something which was written as Maqdar-1 (urdu text) on 19.04.2017 in this case." The prosecution failed to establish by cogent evidence that the alleged opium (P-2) seized from the vehicle was kept in safe custody . Mere oral evidence of the prosecution witnesses i.e Aziz Ahmad Cheema, Inspector (PW-2)-the complainant and Muhammad Aslam S.I (PW-3) as to the recovery of opium weighing 18500 grams does not discharge the heavy burden of responsibility , which lies on the prosecution.
Practically the prosecution took upon itself the risk of losing the case. We are of the considered opinion that the aforesaid inconsistencies and contradicti ons considered cumulatively do lead to an irresistible inference that the prosecution has not been able to prove safe custody of the recovered substance through material and cogent evidence.
11. We observe that the manner in which the prosecution registered and has investigated the case deserves our serious condemnation. Conduct of Aziz Ahmad Cheema, Inspector (PW-2)-the complainant, Muhammad Aslam, SI (PW-3)-the recovery witness and Muhammad Aslam S.I. (Retd.) (PW-5)-investigating officer in the circumstances needs serious scrutiny by the top police authority . A copy of this judgment be sent to the Inspector General of Police for scrutiny and necessary action.
12. Consequently the appeal is allowed . The appellant is acquitted. The conviction and sentence passed by the learned trial Court is hereby set aside. The judgment dated 08.11.2018 passed by the learned Additional Sessions Judge, Okara, in ease FIR No.378 of 2017, dated 15.04.2017, under section 9-C of the Control of Narcotic Substances Act, 1997, Police Station Saddar Okara is hereby set aside. This appellant is in jail. He shall be set at liberty forthwith if not required in any other case.