ABDUL HAMEED BALOCH, J.---- This Criminal appeal is directed against the judgment dated 28th February , 2018 (impugned judgment) passed by Special Judge CNS, Naseerabad at Dera Murad Jamali (trial Court), whereby the appellant was convicted under Section 9(c) Control of Narcotic Substances Act, 1997 (the Act) and sentenced to suffer rigorous imprisonment for a period of three (03) years with fine of Rs.15,000/- (Rupees fifteen thousand), and in default thereof to further undergo two, months simple imprisonment with benefit of Section 382-B, Cr .P.C.
2. Precise facts of the case were that on 23rd July, 2017 the complainant Ali Sher Qalandrani SI lodged FIR No. 101 of 2017, with Police Station City Dera Murad Jarnali, under Section 9(c) Control of Narcotic Substances Act, 1997, with averments that he received spy information to the effect that a perso n namely Lal Shah is going to Manjhoo Shori on motorcycle for selling charas. On this information they made blockade at Naka Farooq Shaheed and at about 9-15 a.m. they stopped a motorcycle rider and on search two packets baked charas weighing two kilograms was recovered from his Nefa. With these averments FIR was chalked.
3. After submission of challan and full dressed trial the learned trial court convicted the appellant in the manner as mentioned in para-1 above, hence this appeal.
4. Heard and perused the record. The prosecution in order to substantiate the accusation examined three witnesses. Among them PW-1 Ali Sher SI and PW-2 Manzoor Ahmed Constable are ocular witnesses. On written application of PW-1 FIR Ex: P/3-A was registered. As per prosecution on spy information PW-1 and PW-2 along with other police personnel made blocka de at Naka Farooq Shaheed, searched on going and coming vehicles.
Meanwhile the appellant came by motorcycle on Naka who was searched which resulted in recovery of two packets cannabinoids (charas) weighing two kilo grams from his Nefa, out of which 10/10 grams were separated.
PW-3 Nasrullah Rind SI/IO sent the alleged sample to Forensic Science Laboratory (FSL) which was received on 5th October , 2017. PW -3 produced FSL Report as Ex: P/3-D.
5. PW-1 Ali Sher Qalandrani SI in his deposition stated that on 23rd July, 2017 he was posted at Police Station City Dera Murad Jamali. On spy information he along with Manzoor Ahmed Constable and other police officials proceeded to Naka and 9:15 a.m. a person riding on motorcycle came from Dera Murad Jamali side, who searched and two packets of baked charas weighing were recovered from his Nefa. The witness in cross-examination stated that he searched one or two motorcycles. The accused did not try to run away . The witness admitted that FIR No.102 of 2017 has been registered in respect of recovered motorcycle against the accused. While PW-2, recovery witness, stated that on 23rd July, 2017 they with Ali Sher (PW-1) were on routine patrolling. The informer informed Ali Sher. They proceeded towards Naka. The witness in cross-examination stated that they proceeded from Thana at 8:00 or 8:30 a.m. and reached at Naka at 9:00 or 9:15 a.m. They searched 15/20 vehicles. Simultaneously stated that they only searched one or two motorcycles. There are discrepan cies and contradictions in the statements of above two witnesses, which could not be lightly ignored. Reliance is placed on the case of Minhaj v.
The State 2019 SCMR 326 . It was held therein.
"8. We have heard the learned counsel for the parties and with their assista nce examined the record. The petitioner's conviction primarily rests on the testimonies of police Constable Yasir Ali (PW-1) and Sub-Inspector and complainant Abid Hussain (PW-2). Both these witnesses stated that when they were deployed at Police Post Hattian they, in a private Honda car, drove to the place of occurrence where they saw in the petitioner's right hand a blue shopping bag which after it was searched had 1430 grams of suspected narcotic substance, which the chemical examiner's report states to be charas. Recovery memorandums were prepared and PW-1 was a witness to these recovery memorandums (Exhibits PA and PB) and the other witness to them was Constable Jehanzeb Khan, but the prosecution did not produce him as a witness. PW stated that the place of occurrence, that is the place where the petitioner was apprehended and arrested, "was at a distance of about 2/3 kilometer towards west from police post" but P W-2 stated that, "the place of occurrence is at a distanc e of 1 kilometer from the police post". The discrepancy in the distance becomes material when both these witnesses were shown to be performing duties in the area. PW-1 and PW-2 stated that in addition to them there was Constable Jehanzeb Khan and Constable Shoaib Afzal in the said car, but neither remembered who was sitting in the front seat next to the driving seat whilst remembering other minute details such as noting, that the petitioner was holding the blue shopping bag in his right hand. PW-1 did not know the owner of the car and PW-2 stated that he, "had the private car from someone on the basis of curtsy" [sic.] but did not disclose the name of the owner of the vehicle. The petitioner had throughout maintained that he was roped into a false case because he and his wife ran 'Muhammad Ali Public School' and an influential of the area who ran another school, 'Al-Meenar Public School', wanted to have the petitioner's school closed down as the petitioner and his wile's school competed with them. Both these witnesses professed complete ignorance about the schools, which is surprising considering they were serving in the area.
Another significant contradiction was that whilst PW-1 in his cross-examination stated that upon seeing the policemen the, "accused had not run. I and Shoaib Constable had over powered the accused" PW-2 stated that when the, "accused saw us, he tried to run away but he was over powered". An unusual facet of this case is that having apprehended and arrested the petitioner the PW-2 did not take him to Police Station Hazro to register the FIR and instead deputed Constable Jehanzeb Khan to take his written complain t, which he wrote out when the petitioner was apprehended, to Police Station Hazro Constable Jehanzeb Khan, "left place of occurrence on feet"
[sic] to the police station which was at a distance of 15/16 kilometers and the FIR was registered on the basis of said written complaint. Constable Jehanzeb Khan was not produced as a prosecution witness. Since Police Station Hazro was at a distance of 15/16 kilometers from the place of occurrence it does not stand to reason that Constable Jehanzeb Khan was directed to go there on foot with the written complaint, whilst PW-2 (the complainant) himself could easily have driven there in the said car. Constable Jehanzeb Khan with the written complain arrived at Police Station Hazro at 3:30 p.m. while PW-2 reached there much later, at 5:00 p.m. No explanation was offered by PW-2 what he was doing in the intervening period. The manner in which this case was split up is inexplicable; Constable Jehanzeb Khan was sent off with the written complaint to the police station on foot while the complainant with accused and the confiscated substance went there by car. Constable Jehanzeb Khan travelling by foot arrived at the police station an hour and a half earlier than the complainant PW -2."
6. PW-3 Nasrullah Abro SI/IO in court's deposition stated that during investigation the alleged samples were sent to FSL for analysis. The witness produced FSL report as Ex: P/3-D, which reveals that sample were received to FSL on 5th October , 2017 with the memorandum from SSP/N/Abad through Nasrullah SI. While the Investigating Officer stated that he sent the alleged material to FSL, meaning thereby that he himself has not dispatched the material to Forensic Science Laboratory . The material was received to FSL after more than 70 days without any explanation that during intervening period the alleged material was in whose custody/ possession. Reference is made to the case of Amjad Ali v. The State 2012 SCMR 577 . It was held therein: "5. Having heard learned counsel for the appellant and for the State, we find that the vehicle which was being driven by the appellant was intercepted by P. W2 Qaiser Ali Khan, SI, CIA, Distri ct Sawabi, who at the time was serving as SHO. A perusal of his examination-in-chief indicates that although the appellant never disclosed that the secret cavities of the car door and the stepney contained charas yet according to the said witness, he of his own found out that, uncovered the secret cavities of the door and the stepney without the help of any instrument. This on the face of it, is repellent to common sense. Then according to P. W.3 Manir Khan, SI, he came to the spot along with a foot constable on a motorbi ke whereas according to P. W.4 Safdar FC-333, the former came to the spot in a private vehicle and not on a motorbike. Although the prosecution sought to corroborate the testimony of P.
W. 2 and P.W. 3 with the report of the Forensic Science Laboratory to the effect that the contraband item recovered from the secret cavities was charas yet the sanctity of the said report (Exh. PK) was eroded when P. W.3 Manir Khan in cross-examination could not correctly reply as to where the samples remained between the dates those were allegedly taken into possession from the car and the date those were received by the Forensic Science Laboratory i.e. 26-5-2006 to 3-6-2006. He even could not tell the date as to when the samples were sent for examination and which official had taken the samples to the. Laboratory . Admittedly the case property , the stepney of the car was never produced during trial to verify as to whether it could contain such a huge quantity of the narcotics in question."
7. The prosecution has failed to prove the case against the appellant beyond reasonable doubt. It is settled law that prosecution must prove its case on its own strength by cogent and confidence inspiring evidence.
In view of what has been discussed above, we accept the appeal and the impugned judgment dated 28th February , 20918 passed by learned Special Judge CNS, Naseerabad at Dera Murad Jamali pursuant to FIR No. 101 of 2017 lodged with Police Station City Dera Murad Jamali is set aside. The appellant/convict Lal Shah son of Sardar Shah is acquitted of the charge under Section 9(c) CNS Act, 1997. He is on bail, his bail bonds stand discharged.