Sadiq Mahmud Khurram, J.--Zeeshan Ali son of Abdul Qayyum (appellant) was tried by the learned Additional Sessions Judge/MCTC, Layyah, in case FIR No. 28 of 2019 dated 22.01.2019 registered at Police Station Kot Sultan, District Layyah, in respect of an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 and the learned Additional Sessions Judge/MCTC, Layyah vide judgment dated 29.04.2019 convicted Zeeshan Ali son of Abdul Qayyum (appellant) and sentenced him as infra: Zeeshan All son of Abdul Qayyum: Rigorous Imprisonment for seven years under Section 9(c) of the Control of Narcotic Substances Act, 1997 and also burdened with fine of Rs. 50,000/-in default thereof, was directed to further undergo simple imprisonment for seven months.
The appellant was however , extended benefit available under Section 382-B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C".
2. Feeling aggrieved, Zeeshan Ali son of Abdul Qayyum (convict) lodged the instant Criminal Appeal No. 426 of 2019, challenging the judgment dated 29.04.2019, passed by the learned Additional Sessions Judge/MCTC, Layyah, whereby the appellant was convicted and sentenced for an offence punishable under Section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as "the Act") as mentioned above.
3. Precisely the facts necessary , as divulged in the statement of Nazir Ahmad, ASI (PW -3) are as under: "On 22.01.2019, I. was posted as ASI at Police Station Kot Sultan Tehsil and District Layyah. On the same day at about 9.50 a.m. I along with Muhammad Iqbal 329/C, Ghulam Shabbir 64/C, Muhammad Safdar 165/C, Riaz Ahmad PQR and Haq Nawaz 95/C driver on official Vehicle No. LYG/24 was standing near Choudhary Petroleum in connection with patrolling duty. In the mean time, a spy informer informed me that a person having narcotic was going on foot on Muslim School Road towards railway line and if a raid is conduc ted, he would be apprehended.
After that I, constituted a raiding party and conducted raid at the spot mentioned above. On said raid, accused Zeeshan Ali son of Abdul Qayyum present in Court going on foot on Muslim School road tried to flee away but he was apprehended by me with the help of other police officials. On arrest of accused, search of accused was made who was holding a shopper in his right hand. On checking of said shoper , "heroin weighing 2120 gram was recovered from the same which was held by accused in his right hand. After that, I prepared two sealed parcels of 'Heroin' i.e. one parcel weighing 106 gram for onward transmission to the office of PFSA Lahore and second sealed parcel weighing 2014 gram P-1 for keeping the same in safe custody in 'Mal Khana'. I prepared recovery memo.
Exh ,PB attested by Muhammad Iqbal 329/C and Muhammad Safdar 165/C. After that drafted complaint Exh.PC at about 10.20 at about 10.20 a.m. on the some day and sent the same to the police station for registration of case through Riaz Ahmad PQR. After that Muhammad Umer Khan SI came there who prepared rough site-plan of the place of occurrence. I handed over sealed parcels of narcotic and body of accused to Muhammad Umer Khan SI and afterwards I returned at police station Kot Sultan. On 24.01.2019, Ghulam Abbas 528/HC handed over to me one sealed parcel weighing 106 grams through road certificate for its onward transmission to PFSA Lahore which was deposited by me on 25.01.2019 in the concerned office. On 26.01.2019, I handed over road certificate No. 109/21 to Ghulam Abbas Moharrar of police, station. So long as parcel remained in my custody , no body tampered with the same. My statement was recorded in this regard on 26.01.2019 by the I.O."
4. On the above stated facts FIR No. 28 of 2019 (Exh.P A) dated 22.01.2019 was registered at Police Station Kot Sultan, District Layyah, in respect of an of fence under Section 9(c) of the Control of Narcotic Substances Act, 1997.
5. After the formal investigation of the case, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court wherein the appellant was sent to face trial. The learned trial Court framed the charge against the accused on 21.02.2019 under Section 9(c) of the Control of Narcotic Substances Act, 1997.
The appellant pleaded not guilty and claimed trial and the learned trial Court proceeded to examine the prosecution witnesses.
6. In order to prove the facts the prosecution examined as many as five witnesses. The prosecution examined Nazir Ahmad, ASI (PW-3) and Muhammad Safdar 165/C (PW-4) as witnesses to the recovery of narcotics. Mureed Hussain SI (PW-1) stated that on 22.01.2019, he got recorded the formal FIR (Exh.P A). Ghulam Abbas 528/HC (PW-2) stated that on 22.01.2019, Muham mad Umar Khan, SI (PW-5) handed over to him two sealed parcels said to contain "Heroin" and on 24.01.2019, he handed over one of the sealed parcels to Nazir Ahmad, ASI (PW-3) for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Muhammad Umar Khan, SI (PW- 5) investigated the case and made a detailed statement before the learned trial Court in this regard.
7. On 06.04.2019, learned DDPP gave up PW Muhammad Iqbal 329/C as being unnecessary and closed the prosecution evidence after tendering in evidence report of Punjab Forensic Scienc e Agency (Exh.PE), Rapet No. 9 as (Exh.PF) and Rapat No. 22 as (Exh.PG).
8. After closing of prosecution evidence the statement of appellant was recorded under Section 342 of Code of Criminal Procedure, 1898 and the appella nt pleaded his innocence and in reply to as to why the PWs had deposed against him, he stated that the witnesses were police officials who deposed falsely against him just to strengthen the prosecution being subordinate to the Investigating Officer. The appellant claimed that he had been arrested on 17.01.2019 by Nazir Ahmad, ASI (PW-3) and his arrest was shown subsequently . The appellant however opted that to appear in terms of Section 340(2) of the Code of Criminal Procedure, 1898 but produced attested copy of FIR No. 27 of 2019 (Exh.DA) and Call Data Record as (Mark-A) in his. defence. The appellant closed the defence evidence on 09.04.2019.
9. After completion of evidence and hearing both the parties the learned trial Court held the appellant guilty of offence and sentenced the appellant as referred to above.
10. Learned counsel for the appellant submitted that the prosecution has failed miserably to prove the case against the appellant. Learned counsel further argued that these were glaring contradi ctions in the statements of the witnesses hitting at the very root of the prosecution case. Learned counsel also stated that nothing was recovered from the appellant and pleaded for acquittal of the appellant.
11. On the other hand learned Deputy Prosecutor General appearing on behalf of the State submitted that the prosecution has proved the charge by producing admissible and relevant evidence. He further submitted that all the witnesses have corroborated each other . He requested that the appeal be dismissed.
12. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General and perused the record.
13. At the very outset, we have noticed that as far prosecution case is concerned, the most important witness is Nazir Ahmad, ASI (PW-3), who not only was the complainant of the case but also the person who allegedly took the sample parcel to the office of Punjab. Forensic Science Agency , Lahore for its analysis. We have very carefully perused the statement of said witness namely Nazir Ahmad, ASI (PW-3) and the other witnesses produced by the prosecution . We find that there are more than one circumstance which point towards the false involvement of the appellant in this case by the said Nazir ' Ahmad, ASI (PW-3) the complainant of the case. After perusal of the evidence on record we find that the prosecution in this case has failed to establish the safe custody of the recovered "Heroin". (Exh.P1). We have observed that Muhammad Umar Khan, SI (PW-5) admitted during cross- examination as under: "It is incorrect that there is only one main Mal Khana which is situated in P.S Saddar Layyah. I did not submit the said parcels to Incharge Mal Khana Saddar Layyah. However , I handed over the same to Moharrar . It is correct that I did not record the statement of Moharrar/Incharge Mal Khana Saddar Layyah in my investigation."
Ghulam Abbas 528/HC (PW-2) stated that on 22.01.2019, Muhammad Umar Khan, SI (PW-5) handed over to him two sealed parcels said to contain "Heroin" and on 24.01.2019, he handed over one of the sealed parcels to Nazir Ahmad, ASI (PW-3) for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. During cross-examination Ghulam Abbas 528/HC (PW -2) admitted as under: "On 25.01.2019 I sent sealed parcel of 2014 gram "Heroin" to "Mal Khana" of police station saddar Layyah. through Ijaz Ahmed Naib Moharrar . "Mal Khana" is situated in police station Layyah and no other "Mal Khana" is in District Layyah."
Both these witnesses namely Muhammad Umar Khan, SI (PW-5) and Ghulam Abbas 528/HC (PW-2) admitted that the recovered contraband had to be kept in "Mal Khana" of Police Station Saddar Layyah. No such facility for safe deposit and custody of recovered contraband was available at the police station Kot Sultan, to which this case related. The prosecution has not produced Ijaz Ahmad, Naib Moharrar , who took the parcel said to contain 2014 grams of recovered "Heroin" to the Police Station Saddar Layyah for its deposit and safe custody . The said Ijaz Ahmad, Naib Moharrar , was neither cited as a witness nor his statement under Section 161, Cr.PC was recorded nor he was examined as a witness during the trial of the case though he was the person who had taken the 2014 grams of recovered "Heroin" from the Police Station Kot Sultan to Police Station Saddar Layyah. This aspect of the case has convinced our minds that the whole prosecution case is faulty beyond repair . There is no explanation available on record as to why the recovered contraband was kept at Police Station Kot Sultan when admittedly there existed no provision for safe deposit and custody of recovered contraband at the said Police Station. The Investigating Officer admittedly did not deposit the recovered contraband at the Police Station Saddar Layyah. In absence of such evidence prosecution which must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure, has failed td do so. The break in the chain of custody and lapse in the control of possession of the recovered contraband, casts doubts on the safe custody and safe transmission of the articles and impairs and vitiates the conclusiveness and reliability of the report of the Punjab Forensic Science Agency , Lahore (Exh.PD) thus, rendering it incapable of sustaining conviction. To prove the safe custody of the recovered narcotics was pivotal for the prosecution, as the entire construct of the Control of Narcotic Substances Act, 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001 rested on the report of the Punjab Forensic Science' Agency , which in turn rested on the process of sampling and its safe and secure custody . The prosecution case is silent in respect of these vital aspects of the case and hence it is impossible for us to determine safe and secure custody of the recovered narcotics.
14. We have also noted with grave conce rn thai there were many discrepancies in the statements of the witnesses produced by the prosecution. Nazir Ahmad, ASI (PW -3) during cross-examination stated as under: "The alleged recovered Heroin was in white coloured shopper".
Contrary to this Muhammad Safdar 165/C (PW -4) stated as under: "The alleged recovered Heroin was packed in Khaki envelope paper . Nazir Ahmad, ASI weighed the alleged recovered Heroin with Khaki enveloped paper"
Moreover , Nazir Ahmad, ASI (PW -3) stated during cross-examination as under: "I prepared the parcels of alleged recovered, Heroin while sitting on ground.
Whereas Muhammad Safdar 165/C (PW -4) stated as under: "After apprehending the accused we set in official vehicleldala on back side. Nazeer Ahmad ASI drafted the complaint Ex. PC while sitting three. The alleged recovered Heroine was also weighed there".
Then Nazeer Ahmad, ASI (PW -3) stated during cross-examination as under: "Riaz PQR was sent by me for registration of FIR to P.S Kot Sultan on a motorcycle of a passerby . Riaz Ahmad PQR came back at the place of recovery within a half hour. When Riaz Ahmad PQR returned back at the place of recovery he was accompanied with (sic) Muhammad Umar Khan SI and a constable."
Muhammad Safdar 165/C (PW -4) stated contrary to this and deposed as under: "Nazir Ahmad ASI send the written complaint for registration of FIR through Ghulam Shabbir Constable to the police station."
Muhammad Umar Khan SI (PW-5) stated that he came to the place of recovery on official motorcycle along with Muhammad Iftikhar constable and not with Riaz Ahmad PQR. He further submitted that he came back to the police station alongwith Iftikhar constable and Qasim PQR. All these contradictions lay bare the false claims of the prosecution witnesses and work to smas h the prosecution case to smitherings. It is an accepted principle of law that a tainted piece of evidence cannot corroborate another tainted piece of evidence. Another aspect of the case is that both the witnesses namely Nazeer Ahmad, ASI (PW-3) and Muhammad Safdar 165/C (PW-4) admitted that a mobile phone was also recovered from the appellant at the time of his arrest and it had two subscriber identification modules (SIM) bearing No. 0303-8464100 and 0314-5380066. Despite the allegation of the appellant that he had not been arrested on 22.01.2019, still the Call Data Record relating to the said recovered subscriber identification modules (SIM) bearing No 0303-8464100 and 0314-5380066 was not produced before the learned trial Court.
Article 129 of the Qanun-e-Shahadat Order , 1984 allows the Courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus presume the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order , 1984, that had the Call Data Record relating to the said recovered subscriber identification modules (SIM) bearing No. 0303-8464100 and 0314-5380066 been procured and produced before the learned trial Court it would have supp orted the stance of the appellant. It it is also being presumed that had the said Call Data Record been produced, it would have not supported the prosecution case.
15. We have also noted that Nazir Ahmad, ASI (PW-3) also did not proceed to the police station after the arrest of the accused for getting the FIR recorded rather deputed Riaz Ahmad PQR (not produced) to get the FIR registered.
It is unexplainable as to why . Nazir Ahmad, ASI (PW-3) himself did not proceed to the Police Station when he himself had arrested the accused and prepared the recovery memo. (Exh.PB). Furthermore the police station was just at a distance of three miles from the place of occurrence and there was nothing further to be done at the spot by Nazir Ahmad, ASI (PW-3) or indeed the other witnesses for them to have kept standing at the place of occurrence . Additionally the said Riaz Ahmad, PQR, who took the complaint (Exh.PC) to the police station for the registration of FIR, was neither cited as a witness nor his statement under Section 161, Cr.PC was recorded nor he was examined as a witness during the trial of the case though he was also an eye-witness of the occurrence. This aspect of the case has convinced our minds that the whole prosecution case is a figment of imagination of Nazir Ahmad, ASI (PW-3), the complainant of the case. The august Supreme Court of Pakistan in the case of Minhaj Khan vs. The State ( 2019 SCMR 326 ) has held as under: "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 complaint, 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 complainant whilst PW-2 (the complainant) himself could easily have driven there in the said car. Constable Jehanzeb Khan with the written complaint 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.
9. The discrepancies in the testimonies of the two witnesses: the purported lack of knowledge about, certain things which they ought to have remembered whilst having a photographic recollection of other insignificant things; not knowing those things which they should, have; the fact that Constable Jehanzeb Khan reached the police station before the complainant PW-2; the non-pro duction of Constable Jehanzeb Khan who took the written complaint and was an eye-witness of the occurrence and of the recovery memorandums; and the inexplicable conduct of the complainant PW-2 in not proceeding to the police station himself to register the FIR are matters of concern and collectively of incredulity . The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable doubt, or, at worst, that the petitioner was involved in a false case for ulterior reasons. "
We have also observed with grave concern that the recovery memo. (Exh.PB) relating to the recovery of "Heroin" from the possession of the appellant namely Zeeshan Ali son of Abdul Qayyum, bears the FIR number whereas the said recovery memo was prepared prior to the recording of the complaint (Exh.PC) which was prepared at 10.20 a.m., when at such time the FIR (Exh.P A) had not been registered and its number was not known whereas the FIR (Exh.P A) was recorded at 10.40 a.m. This also proves the manipulation of the recovery memo (Exh.PB) and it remains irreconcilable with the rest of the prosecution case. In absence of this certa inty we cannot believe the case of the prosecution as it is. Keeping all these possibilities in mind and raising necessary inferences from the facts available on the record we have arrived at a conclusion that a possibility cannot safely be ruled out of consideration regarding the appellant having been false ly implicated in the present criminal case and, thus, we have decided to extend the benefit of doubt to him. We have noticed that there are serious discrepancies in the evidence of material witnesses which cannot be ignore d though there is a slight difference by virtue of Narcotic Substances Act, 1997 in the manner and standard of proof in cases registered under the said Act but the prosecution is always bound to discharge the initial onus of proof. This is now a settled principle of law that in every case the burden to prove the guilt of the accused always lies on the prosecution. Even the slightest doubt results in failure of the case of the prosecution. Benefit of doubt is not to be granted as a concession but as of right. The prosecution by mishandling the case has badly failed to bring on record unimpeachable and cogent evidence to prove culpability of the appellant. In the light of the above noted infirmities, we are inclined to observe that prosecution has miserably failed to bring home the guilt of the accused. The prosecution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in cases titled Ikramullah and others vs. The State (2015 SCMR 1002 ), Akhtar Iqbal v. The State (2015 SCMR 291) and Muhammad Hassain vs. The State (2008 SCMR 345). The august Supreme Court of Pakistan in the case of Muhammad Mansha vs. The State ( 2018 SCMR 772 has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt,' not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State ( 2009 SCMR 230 ) and Muhammad Zaman v . The State ( 2014 SCMR 749 )".
16. For what has been discussed above, we are persuaded to hold that the convi ction and sentence recorded by the learned Additional Sessions Judge/MCTC, Layyah, vide judgment dated 29.04.2019, in the circumstances, are not sustainable. We, thus while allowing the Criminal appeal No. 426 of 2019 filed by Zeeshan Ali son of Abdul Qayyum, set-aside the judgment dated 29.04.2019 passed by the learned Additional Sessions Judge/MCTC, Layyah and acquit the appellant of the charge leveled against him. He is directe d to be released forthwith if not required in any other case.
17. The case property shall be dealt with as directed by the learned trial Court. The record of the learned trial Court be sent down immediately .