Ch. Abdul Aziz, J. Muhammad Imran (appellant) involved in case FIR No.212/2020 dated 22.05.2020 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as CNS Act 1997) at Police Station Kacha Khuh, Khanewal, was tried by learned Sessions Judge/Judge Special Court (CNS), Khanewal. Trial Court vide judgment dated 10.06.2022 proceeded to convict and sentence the appellant in the following terms:- "Under Section 9(c) of CNS Act 1997 to suffer rigorous imprisonment for life along with fine of Rs.50,00,000/- and in default whereof to further undergo simple imprisonment for 01-year. Benefit of Section 382-B Cr.P.C., however, was extended to the appellant.
Challenging his conviction and sentence, appellant filed the instant criminal appeal.
2. Precisely stated the case of the prosecution as unfolded by Hassan Iqbal SI (PW.2) in FIR (Exh.PD) is to the effect that on 22.05.2020 he along with Muhammad Azhar 718/C, Tariq Mahmood 1477/C and Muhammad Irfan 885/C was present at a place known as Vehari Morr in connection with official duty; that meanwhile, he received a spy information that a drug seller namely Imran having huge quantity of narcotics was scheduled to reach Vehari Morr in a car and if raided could be apprehended; that upon receiving this information, he after constituting a raiding party established a picket adjacent to Raja Palace; that shortly thereafter a silver coloured car having registration No.LEH14-4720 reached there which was stopped by the police party; that a person de-boarded from the car and made an attempt to run away but apprehended by the police; that the person so nabbed disclosed his name as Muhammad Imran (appellant) who was accordingly arrested; that on his personal search narcotic sale proceed of Rs.3000/- with denomination of Rs.1000/- each was recovered; that upon checking, one black coloured bag was found placed on the front seat of the car from which 19-packets of heroin each weighing 1000 grams (total 19 kilograms) were recovered; that out of the recovered packets, 50-grams each were separated for chemical analysis. Thereafter, he drafted complaint (Exh.PC) and sent it to the police station through Muhammad Irfan 885/C for the registration of formal FIR.
3. Following a comprehensive investigation the case was placed before the trial Court through 173 Cr.P.C report upon which the trial was held. The prosecution in order to secure conviction for the appellant called five witnesses, namely, Hafiz Abdul Rehman SI (PW.1) who investigated the case, Hassan Iqbal SI (PW.2), Muhammad Irfan 885/C (PW.4) and Tariq Mahmood 1477/C (PW.5) claimed to have witnessed the recovery proceedings and Muhammad Waheed Iqbal 285/HC (PW.2) as Moharrar/Station clerk at the relevant time. Upon the closure of the prosecution evidence, the trial Court conducted the examination of the appellant in terms of Section 342 Cr.P.C.
During this examination, the appellant was confronted with questions relating to the prosecution s evidence to which he responded through simple denial and pleaded innocence and claiming that he had been falsely implicated in the case. The appellant neither opted to appear as his own witness under Section 340(2) Cr.P.C. nor did he produce any evidence in his defence. After the conclusion of the trial, the appellant was found guilty and sentenced as previously mentioned which has led to the present appeal.
4. It is contended by learned counsel for the appellant that at the first glance the case of the prosecution seems to be skeptical in nature; that although it is alleged that 19-kilograms of heroin was seized from the appellant's vehicle, but prosecution significantly failed to establish the validity of this recovery during trial; that the accusation so made by the prosecution indicates that the narcotic substance was recovered from a public place but no witness therefrom was produced during trial; that the recovery witnesses contradicted each other on all material aspects which rendered their testimonies unworthy of any credence; that from the perusal of the prosecution evidence though a reasonable doubt qua the guilt of the appellant arises but its benefit was not extended to him. In the light of these submissions, it was requested that the conviction inflicted upon the appellant be overturned.
5. Contrarily, the learned law officer strongly contested the arguments presented on behalf of the appellant asserting that a sufficient amount of narcotic substance was seized from the appellant for which he provided no satisfactory explanation; that there was no justification for the police officials to wrongly place such a significant amount of heroin on an innocent individual; that the prosecution witnesses effectively recounted the specifics of the recovery proceedings during trial; that the defence remained unable to derive any advantage from the prosecution witnesses even after extensive cross-examination, thus the conviction imposed on the appellant requires no alteration.
6. Arguments heard. Record perused.
7. A wade through the record reveals that on the evening of 27.07.2021, Hassan Iqbal SI (PW.2) along with four other police personnel was present in a neighbourhood known as Vehari Morr, in connection with his official duties. Meanwhile, a spy approached Hassan Iqbal SI (PW.2) and imparted information about the expected arrival of a notorious drug peddler Imran in his car along with sizeable cache of narcotics. The receipt of this information prompted Hassan Iqbal SI (PW.2) to erect barricade on the road adjacent to Raja Palace so as to foil the transportation of narcotic substance. Shortly thereafter, a silver coloured car upon which registration No.LEH-4720 was displayed emerged on the scene which was signaled by the police officials to stop. From this vehicle Muhammad Imran (appellant) alighted and made an attempt to decamp therefrom but was overpowered by the police. On the front seat of the vehicle a black bag was placed from which 19 kilograms of heroin was recovered.
8. Before inching any further, we consider it appropriate to mention here that from the defence perspective, the provisions of CNS Act 1997 are stringent in nature. On one hand the provisions of Section 103 Cr.P.C. are excluded and thereby police officials are made as good witnesses as anyone else. On the other hand, through necessary implication of Section 29 of CNS Act 1997 the burden to prove its case upon the prosecution is not made as heavier as under the ordinary law.
Besides that the delinquencies arising out of the CNS Act 1997 are made punishable with sentences on higher side. Indeed, the accused charged in such cases is left with little scope to knit his defence. The things get more complex when seen in the context that on occasions innocent people are falsely grilled in the case under CNS Act 1997 either on account of suspicions or in pursuance of some nefarious designs hatched by motivated quarters. Due to foregoing reasons, the record of such cases calls for circumspective scrutiny from the courts. In order to secure conviction for an accused, the prosecution is generally required to prove the flawless recovery proceedings of contraband substance, doubt-free dispatch of complaint from the spot to the police station for the registration of FIR, impeccable procedure of safe custody of the recovered narcotics along with its transmission to the office of PFSA and above all the origin of the recovered substance as narcotics.
9. In the above backdrop, we meticulously scanned the record of the case and it is noticed that the complaint (Exh.PC) was prepared at the place of recovery and shortly thereafter was dispatched to the police station through Muhammad Irfan 885/C (PW.4) upon which formal FIR (Exh.PD) was chalked out by Muhammad Waheed Iqbal 285/HC (PW.3). We have anxiously noticed that though Muhammad Waheed Iqbal 285/HC (PW.3) claimed in his examination-in-chief to have registered the formal FIR (Exh.PD) after the receipt of complaint (Exh.PC) but during cross-examination it turned out to be an outcome of dishonest improvement. As a matter of fact, in his 161 Cr.P.C. statement (Exh.DB) nothing as such was mentioned by Waheed Iqbal 285/HC (PW.3) which may give some clue about the receipt of complaint and registration of FIR and he covered this deficiency by making additions in his examination-in-chief. Since this is an important aspect, hence an extract from his cross-examination is being reproduced hereunder:- "I had got recorded in my statement that on 22.5.2022 Muhammad Irfan 885 C produced written complaint Exh.PC confronted with Exh.DV wherein it is not so recorded. I also got recorded that after registration of formal FIR upon which I got lodged FIR No.212/2020 u/s 9C CNSA PS Kacha Khoh through PSA without any addition, deletion or omission, confronted with Exh.DB wherein it is not so recorded".
The question arises that what legal impact the afore-mentioned aspect has upon the case of prosecution. In a wrestle with the proposition, we came across observation of the Supreme Court of Pakistan given in case reported as Muhammad Arif v. The State (2019 SCMR 631) wherein it is held that the portion of deposition of a witness which is brought on record through dishonest improvement is destined to be discarded from consideration. For the clarity of proposition the relevant extract from the afore-mentioned case is mentioned hereunder:- "It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge."
In the given circumstances, we do not have any other option but to hold that prosecution failed to substantiate the claim of preparing the complaint at the spot and its dispatch to police station for the registration of formal FIR. It appears that all the proceedings pertaining to the preparation of complaint etc. were carried out while sitting in the police station.
10. During trial the details of recovery proceedings were brought on record through a set of three witnesses comprising upon Hassan Iqbal SI, Muhammad Irfan 885/C and Tariq Mehmood 1477/C (PWs 2,4 & 5). It is observed by us that none out of the three recovery witnesses uttered anything about the make, model or registration number of the vehicle from which the narcotic substance was recovered. It sounds strange that even in the wake of recovery of narcotics contained in the bag placed on the front seat of a vehicle, still the case of prosecution is in eternal silence about the details and description of such car. The things got more complicated for the prosecution when seen in the context that no material was collected at investigative phase to establish a nexus between Muhammad Imran (appellant) and the vehicle. It was candidly conceded by the witnesses that no efforts were made to ascertain the ownership of the vehicle so as to structure its link with the appellant. The afore-mentioned task could easily be executed through a scrutiny from its registration, chassis and engine numbers but no step in this regard was taken. The failure of prosecution in establishing nexus between the accused and vehicle in such like cases was described by the Supreme Court of Pakistan, sufficient ground for acquittal in case reported as Said Wazir and another v. The State and others (2023 SCMR 1144) in the following words:- "Even the prosecution failed to prove the ownership of the vehicle. This Court in the cases of Qaiser Khan v. The State through Advocate General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Mst.Razia Sultana v. The State and another (2019 SCMR 1300), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) has held that in a case containing the above mentioned defect on the part of the prosecution, it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt."
11. It is further noticed that the recovery witnesses contradicted each other on material points pertaining to the manner in which Muhammad Imran (appellant) was arrested, the mode of securing the recovered heroin and the preparation of sample parcels. The expression "contradiction" is wide in scope and brings within its compass all the legal omissions, shortcomings and lacunas, besides that is applicable in situations when the acceptance of deposition of one witness necessitates the rejection of another. In P Ramanatha Aiyar's Advanced Law Lexicon 4th Edition volume 1, the term "contradiction" is characterized in the following way:- "The word contradiction means the setting of one statement against another and not the setting up of a statement against nothing at all."
The Supreme Court of India in case reported as Shashidhar Purandhar Hegde and Anr. v. State of Karnataka (AIR 2004 Supreme Court 5075) provided a definition for the word contradiction as follows:- "The word contradiction is of a wide connotation which takes within its ambit all material omissions and under the circumstances of a case a Court can decide whether there is one such omission as to amount to contradiction."
While reverting back to the record of the case, firstly, it is noticed that Hassan Iqbal SI (PW.2) claimed during cross-examination that Muhammad Imran made an endeavour to decamp from the spot after alighting from the vehicle but was apprehended. On the other hand, Muhammad Irfan 885/C (PW.4) and Tariq Mehmood 1477/C (PW.5) mentioned nothing to this effect while providing the details of recovery proceedings witnessed by them. Secondly, it is observed that according to Hassan Iqbal SI (PW.2) he prepared the sample parcels after separating through knife the required amount of heroin from the main chunk. On the other hand, Muhammad Irfan 885/C and Tariq Mehmood 1477C (PWs 4 & 5) described altogether a different mode adopted by Hassan Iqbal SI (PW.2) for separating the heroin to prepare sample parcels. Both the recovery witnesses deposed that the samples were prepared by Hassan Iqbal SI by using a piece of paper. Thirdly, it is found discerning from record that the delinquency of possessing narcotics attributed to Muhammad Imran (appellant) culminated in the registration of instant case having FIR No.212/20 (Exh.PD). The recovered heroin was placed in a black bag which was exhibited during trial and upon it the particular of the case was mentioned as 351/19. Inescapably, the afore-mentioned anomaly by no stretch can be ignored as it gives a picture that the black bag was probably an article of some other case. No explanation for the afore-mentioned shortcoming was offered by the prosecution which leans us to hold that the bag produced during trial had no concern with the case in hand. If the black bag is excluded, the detail of crime put forth by the prosecution becomes dubious as the recovered heroin was placed in it. Fourthly, it is found divulging from record that Investigating Officer Hafiz Abdul Rehman SI (PW.1) while appearing before the trial court provided the details of recovery proceedings carried out by him. In the examination-in-chief of Hafiz Abdul Rehman SI (PW.1) though he referred to the seizure of narcotic substance, securing of personal search articles and taking in possession the car but none out of these was exhibited. For tendering in evidence, the articles having incriminating worth, guidelines are provided in the Rules & Orders of the Lahore High Court Lahore Volume-III, Chapter-24 Part-B. In the referred chapter the procedure is provided for bringing on record the articles and documents having nexus with the case. For reference sake Rules 14-F & 14-H are being referred hereunder:- "14-F.Every article to be produced.---Clothes, weapons, money, ornaments, food and every article which forms a part of the circumstantial evidence should be produced in Court and their connection should be proved by the witnesses.
14-H.Exhibits.- All exhibits should be marked with a letter or numbers. Articles which are produced in evidence should have a label attached to them bearing a number, and that number should be quoted throughout the record wherever any such article is referred to and should be distinctly marked as "admitted or not admitted". If the exhibits have already been assigned numbers by the police, that series of numbers should be mentioned to avoid confusion.
A printed label should be affixed or attached to each exhibit containing the following particulars:-
(i) Number of exhibit
(ii) Produced by
(iii) Admitted(Signature of Court)
(iv) Date
(v) Case
(vi) Description of exhibits.
The Sessions Judge, should see that these entries are properly made."
The incriminating articles recovered from the appellant were not produced and tendered in accordance with Rule 14-F & 14-H (ibid), thus cannot be read in evidence. The phraseology of these Rules is explicit in sense and depicts the requirement of proving the connection of the recovered article with the case and lays emphasis on authenticating their identity through the statements of the witnesses. The abortiveness in fulfilling the required criteria leads to the exclusion of evidence so tendered, providing no option to the Court for placing reliance upon them. Indeed, the recovered articles and relevant documents are exhibited to prove the fact so alleged against the accused facing trial. Besides that the purpose of exhibiting a case property during trial is aimed at providing an opportunity to the accused for cross-examining the witnesses in reference to it so as to extract something beneficial in his favour. In support of the view so formed by us reference can be made to an observation of Supreme Court of Pakistan given in case reported as Mst.Noor Jehan and another v. Saleem Shahadat (2022 SCMR 918), which for reference sake is reproduced hereunder:- "It is hardly needs any emphasis to convey that a document which has not been lawfully produced and exhibited in the Court is not worthy of being considered as evidence/proof of a fact."
Fifthly, we have anxiously noted another legal deficiency deciphering from the date of preparing the un-scaled site plan. Hafiz Abdul Rehman SI (PW.1) stated in his examination-in-chief that he prepared the site plan on 22.05.2020 at the time of his first visit to the place of recovery. During cross-examination, it turned out that site plan (Exh.PA) was having date of 01.06.2020 at its bottom.
There is no need to shed light upon the point that the site plan was required to be prepared on the pointing out of the recovery witnesses but Muhammad Irfan 885/C (PW.5) stated beyond any ambiguity that subsequent to 22.05.2020 he and the remaining witnesses never accompanied the Investigating Officer Abdul Rehman SI (PW.1) to the eventful place. If it was so, then how the site plan (Exh.PA) was prepared on 01.06.2020 but this query remained unaddressed during trial as well as before us. Beyond everything it spells out from the site plan (Exh.PA) that though at point No.2 the presence of witnesses, namely Muhammad Azhar 718/C (given up) and Tariq Mehmood 1477/C (PW.5) was shown but no reference to Hasan Iqbal SI (PW.2) and Muhammad Irfan 885/C (PW.4) is made therein. In these circumstances, no reliance can be placed upon the site plan (Exh.PA). The legitimate legal inference which can be drawn from such shortcoming is to the effect that Hassan Iqbal SI and Muhammad Irfan 885/C (PWs 2 & 4) since had not witnessed the recovery proceedings, hence their presence was not shown in the site plan (Exh.PA). We are invigorated in our opinion from the observation of the Supreme Court of Pakistan expressed in the case reported as Imran Ashraf and 7 others v. The State (2001 SCMR 424) and an extract therefrom is quoted below:- "We are conscious of the fact that as far as site plan is concerned it has no evidentiary value but its importance can also not be denied to determine the location of the incident as well as the position of the witnesses particularly in those maters where presence of otherwise of the witnesses has been challenged. Reference may be made to 1997 SCMR 89."
12. It is jaw-droppingly noticed by us that though the case on account of volume of recovered narcotics was on higher pedestal in reference to the sensitivity but even then the prosecution failed to immaculately prove the safe custody of recovered substance and its onward transmission to the office of PFSA. Before dilating in-depth upon the point of safe custody of recovered substance and its onward transmission to the office of PFSA, we intend to recapitulate here that according to case of prosecution, 19-sample parcels were separately prepared and the main chunk of remaining heroin was packed in altogether a different parcel. All these parcels along with articles recovered from the personal search of Muhammad Imran were handed over to Abdul Rehman SI (PW.1) upon his arrival at the spot. During trial, Hassan Iqbal SI (PW.2) candidly conceded that in his 161 Cr.P.C. statement (Exh.DC) he did not mention the handing over of 19-sample parcels of case property to Abdul Rehman SI (PW.1) after his arrival at the place of recovery as is evident from the following excerpt of his cross-examination:- "It is correct that Exh.DC is my statement u/s 161 Cr.P.C. It is correct that I did not get record in my statement u/s 161 Cr.P.C that 19 parcels of case property were handed over to IO. It is correct that I have got recorded in my statement that I handed over a parcel of case property to Abdul Rehman."
More or less similar situation cropped up from the perusal of the testimony of Muhammad Waheed Iqbal 285/HC (PW.3) who on the eventful day was performing duty as Moharrar/station clerk. Even during his cross-examination it emerged that in 161 Cr.P.C. statement (Exh.DB) he simply stated to have received only one sealed parcel of the case property and mentioned nothing about the receipt of 19-sample parcels. Inexorably, the facts mentioned above are sufficient to expose the fragility of the prosecution case regarding the most important point of safe custody of sample parcels. The adverse impact of the aforementioned omission upon the case of prosecution can be evaluated from the fact that on the same nineteen sample parcels the PFSA through its report (Exh.PE) opined that the recovered substance is heroin. The failure of prosecution to prove safe custody of recovered substance in cases arising out of CNS Act 1997 is always considered incurable defect, sufficient to ward off punishment. Reference in this regard can be made to the case reported as Ikramullah and others v. The State (2015 SCMR 1002) wherein the Supreme Court of Pakistan observed as under:- "In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit."
If any further reference is needed on the subject that can also be made on cases reported as The State through Regional Director ANF v. Imam Baksh and others (2018 SCMR 2039) and Mst.
Sakina Ramzan v. The State (2021 SCMR 451).
13. The dismissal of instant appeal against conviction is mainly urged by the learned law officer on the ground that the appellant failed to attribute any malice to the witnesses for falsely implicating him in the case and as a necessary consequence he remained unable to dislodge the presumption of his guilt to be drawn in terms of Section 29 of CNS Act 1997. The arguments of learned law officer since are not in consonance with the legislative intent of Section 29, thus need not to be given any credence. We are not oblivious of the fact that the presumption postulated in Section 29 is a deviation from the general law wherein throughout a criminal trial, the burden of proving a case is upon the shoulders of prosecution. According to Section 29 though in the wake of recovery of some contraband substance a presumption adverse to the accused facing trial is to be marked but still prosecution cannot be absolved from obligation of proving its case beyond shadow of any doubt. The burden of Section 29 will tilt towards accused only if the recovery of narcotics, its nexus with the accused along with origin as contraband substance is proved by the prosecution beyond shred of any ambiguity. The language of Section 29 is akin to the wordings of Section 8 of The Suppression of Terrorist Activities (Special Court) Act 1975, Section 9 of the Offences In Respect of Banks (Special Courts) Ordinance 1984 and Section 14 of the National Accountability Ordinance, 1999. All the afore-mentioned provisions came under judicial scrutiny and it was resolved by the courts that prosecution cannot be given leverage of not proving its case against the accused beyond any doubt and failure to discharge such obligation will culminate in judgment of acquittal. A Division Bench of this Court in the case reported as Dost Muhammad alias Dooso v. The State (PLD 1991 Lahore 415) while interpreting Section 8 of The Suppression of Terrorist Activities (Special Court) Act 1975 observed as under:- "Learned Special Judge has not cared to mention as to under what law he was recording the conviction of the appellant and sentencing him to such a severe punishment. He has grossly misconceived the import of law relating to the presumption of guilt against the appellant. This presumption, in our opinion, would arise only when the prosecution brings on record some evidence against him prima facie showing that he had committed the crime charged against him.
In the absence of any such evidence no presumption of guilt could have arisen against the appellant."
Similar was the interpretation made regarding Section 9 of Offences In Respect of Banks (Special Courts) Ordinance 1984 in the cases reported as Nazar Karim v. The State (1992 MLD 137) and Muhammad Akram Sheikh v. The State (PLD 1997 Karachi 311).
So far as, Section 29 of CNS Act 1997 is concerned, it was expounded by the Supreme Court of Pakistan in case reported as Muhammad Imran v. The State (2011 SCMR 1956) with the following observation:- "It is pertinent to mention here that section 29 of C.N.S.A, 1997 cast a duty upon the Court to presume in a trial under the Act that the accused has committed the offence under the Act unless contrary is proved. However, firstly, the prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused. If the prosecution proves the recovery of narcotics from the physical custody of accused, then the burden of proving that he was not knowingly in possession of the article is upon him."
Further reliance on the subject may also be placed upon the cases reported as Ameer Zeb v. The State (PLD 2012 Supreme Court 380) and Muhammad Shahid v. The State (2022 PCrLJ 1492).
14. It explicates from the facts mentioned in the preceding paras that the case of the prosecution is replete with contradictions pertaining to the mode and manner of recovery, description and ownership of the vehicle used in the crime, safe custody of the recovered substance as well as its origin. The rigors and horrors emanating from the stringency of punishment provided for a felony in a statute must not drive a Court to dispatch an accused to jail for serving an imprisonment of longer duration even in the wake of failure of prosecution to prove its case beyond scintilla of any doubt. After thoroughly reviewing the record with utmost care, we conclude that the prosecution has miserably failed to prove its case against Muhammad Imran (appellant). In consequence thereof while allowing the instant criminal appeal, the conviction and sentence of Muhammad Imran (appellant) are set aside and he is acquitted of the charge. He shall be released forthwith if not required to be detained in any other criminal case.