ABDUL HAMEED BALOCH, This criminal acquittal appeal has been directed against the judgment dated 13th October, 2021 (impugned judgment), passed by Judge Special Court (CNS) Balochistan, Quetta (trial court), whereby the respondent/accused was acquitted of the charge under Section 9(c) Control of Narcotic Substances Act, 1997 in case FIR No. 19 of 2018, registered with Police Station ANF Quetta.
2. Succinct facts of the case are that on 26th September, 2018, case FIR No. 19/2018, under above mentioned section was registered with Police Station ANF Quetta, on the report of Muhammad Jawad Ali Sub-Inspector Thana ANF Quetta on the allegation of recovery of 1800 grams charas from the possession of the respondent/accused.
3. After registration of FIR, the investigation of the case was conducted, whereafter, challan of the case was submitted before the trial court.
4. After legal formalities and full dress trial, the learned trial court vide impugned judgment acquitted the respondent/accused of the charge, hence this appeal.
5. Heard. We have gone through the record. The record reveals that on written. application of complainant Muhammad Jawad Ali Sub-Inspector Thana ANF Quetta crime No. 19 of 2018 under Section 9 (c) Control of Narcotic Substances Act, 1997 (Act 1997) was registered with Thana ANF Quetta on 26th September, 2018. The investigating officer after completion of investigation submitted challan for trial. The prosecution in order to prove accusation produced four witnesses.
PW-1 Constable Munir Ahmed is the witness of recovery memo. of charas Ex: P/1-A; PW-2 Constable Shafi Muhammad is witness of sending contraband material to FSL examination; PW-3 Muhammad Suleman ASI registered FIR and send the contraband material to FSL for examination, PW-4 Inspector Muhammad Jawad Ali is complainant as well as investigating officer of the case. As per PW-4 on 26th September, 2018 he received information that Muhammad alias Abdul Hadi used to sell narcotics at Western Bypass near Government High School Kharootabad Quetta, on which they reached near bypass where a person was going carrying polythene bag who was apprehended and on search charas was recovered. The witness produced Murasila as Ex: P/4-A, FIR as Ex: P/4-B, site plan Ex: P/4-D, analysis report of FSL as Ex: P/4-E to Ex: P/4-G, incomplete challan as Ex: P/4-H.
The witness also produced another FSL report as Ex; P/4-K to Ex: P/4-M.
6. The case of prosecution is that on spy information that respondent/accused was selling narcotic near Government High School Kharootabad. The prosecution has failed to make an effort for sending fake purchaser to the respondent/accused in order to confirm that actually, the respondent/accused was selling narcotic. The prosecution story is doubtful, as on seeing the police party the accused tried to escape but did not throw the polythene bag from his hand. Even the prosecution has not made effort to record statement of the persons in order to confirm their contention. Reliance is placed on case Daulat Khan v. The State, 2018 YLR 1528, wherein it was held: "6. it is, however, noteworthy that despite so-called complaints against the appellant/accused of his involvement in selling narcotics/chars, neither any such complaint was brought on the record, nor statement of a complainant or a witness from the general public was recorded to that effect; and, likewise, no test purchase was conducted in order to lend credence to the aforesaid version of the prosecution. Similarly, no warrant under section 22 P.O. was obtained by the complainant/SI inspire of his receiving prior information regarding involvement of the appellant/accused in the unsavoury business. At least, the complainant/SI could have procured presence of witnesses from the general public in view of the fact that the reported place of recovery was situated in the midst of populated area. No doubt, police officials are as good witnesses as any other witness may be: but when evidence of the prosecution comprise only of police officials, and both margial witnesses to the recovery memo were police constables and subordinates to the complainant/SI, then their testimony was to be accepted with extreme care and caution for making the same a basis for conviction of the accused and awarding him sentences of imprisonment and fine."
7. The record, depicts that the complainant himself investigated the case and submitted challan.
This of-course could be considered to have caused prejudice to the accused because all the witnesses in the case were subordinate to him. The role of investigating officer is of a neutral authority whose object is to unearth the truth. In this regard reliance is placed on Rule 25.2(3) of Police Rules 1934 (Rules 1934), which reads as under: "It is duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person"
Reliance is placed on case Nazir Ahmed v. The State, PLD 2009 Karachi 191, it was held therein: "12. Justice is to be done not only in Courts. Every person, particularly the one who is entrusted with public power, is required to do justice at his level. An officer of police or such other force, invested with enormous powers, is also obliged in law to do justice and conduct investigation fairly and independently. He is required to collect and preserve all the relevant evidence, even if it be favourable to an accused.
13. An officer, who is himself complainant in the case, cannot be excepted (-) to collect and preserve evidence, which goes against his case. He cannot properly perform duties of an independent and fair investigating officer. It is, therefore, that the superior Courts have never approved the practice of complainant Police Officers acting as Investigating Officers.
5. In the case of the State v. Bashir and others, reported in PLD 1997 SC 408, the Supreme Court, referring to the above Police Rule observed: It could hardly be expected that a police officer, who is heading a raiding party and is a witness, also becomes the complainant and lodges an FIR against the accused, and then becoming an Investigating Officer of the same case, will comply with the aforesaid Police Rule. In the circumstances, the practice of seizing officer or the head of a police party who is also a witness to the crime becoming or being nominated as an Investigating Officer of the same case should be avoided and if any other competent officer is available in the police station, he may be nominated as the Investigating Officer rather than the head of the police party. As observed Investigating Officer is as important witness for the defence also and in case the head of the police party also becomes the Investigating Officer he may not be able to discharge his duties as required of him under the Police Rules."
16. The Supreme Court directed the Ministry of Law, Justice and Parliamentary Affairs, Islamabad and also the Interior Division of the Federal Government as well as the heads of the Investigating Agencies to issue instructions and see that such officers do not act as Investigating Officers and some other officers are assigned the duty of Investigating Officers in such cases. In order to achieve to objects of impartiality and fairness in investigation, the legislature, by promulgating the Police Order, 2002, separated the investigation branch from operation and other branches of police."
8. The record transpires that the investigating officer produced FSL report as Ex: P/4-E to Ex: P/4-G wherein the protocol has not been observed. Subsequently the investigating officer produced another FSL report as Ex: P/4-K to Ex: P/4-M. As per Ex: P/4-K to Ex: P/4-M the material received to Federal Narcotic Laboratory for re-testing on 25th February, 2019, meaning thereby that approximately after nine months of registration of FIR which contained protocol. It appeared that second report received after nine months delay without any justification which lost its evidentiary value. The Honorable Supreme Court in Khair-ul-Bashar's case (2019 SCMR 930) held: "6. Re-testing of the drug, as argued by the DPG, in case of a deficient report would amount to giving a premium to the prosecution for its mistakes and lapses. In any case any flaw in the case of the prosecution must only benefit the accused. Sending the alleged drugs for re-testing would be giving another chance to the prosecution to build its case, which is not the role or business of the court. Besides there is a likelihood that the chain of custody of the alleged drug is compromised with the passage of time.----"
Reliance is also placed on case Muhammad Naeem v. The State PLD 2019 SC 669, wherein it was held:
6. In the present case the direction of the High Court for obtaining fresh samples of the alleged intoxicating substance and preparing a fresh report of the Chemical Examiner amounts to granting the prosecution a premium on its failure to put up a proper case in the first instance.
Such judicial intervention is opposed to the adversary principle and offensive to the fundamental right of fair trial and due process guaranteed under the Constitution. See Dildar v. State; Painda Gul v. State and State v. Amjad Ali. The High Court has traveled beyond its lawful powers under section 423(1) (a) Cr.P.C. and has infact directed to conduct re-investigation or further investigation of the case, which is not permissible under the law. Even otherwise, calling for fresh examination of the intoxicating substance at the appellate stage after all these years may frustrate the settled law as to safe custody and safe transmission of the recovered substance making the report of the chemical examiner suspect and unreliable."
Reliance is also placed on case Amjad Ali v. The State 2012 SCMR 577.
9. In criminal cases every accused is innocent unless proven guilty and upon acquittal by the court of competent jurisdiction such presumption diminishes. Very strong and cogent reasons are required to dislodge such presumption. Reliance is placed on case The State v. Abdul Ali, 2019 SCMR 1102, wherein it was held: It is argued that there was no occasion for the learned High Court to acquit the respondent in the face of overwhelming evidence, singularly pointed on respondent's culpability when intercepted with huge quantity of contraband that cannot be conceivably foisted upon him. Forensic evidence confirming the narcotic character of the contraband his next argument is to seek reversal of the impugned judgment.
Quantity of contraband notwithstanding, view taken by the learned High Court to acquit the respondent is neither artificial nor perverse inasmuch as discrepancy between the stated date of respondent's arrest and his remission into police custody for registration of a criminal case sans any plausible explanation. Contradictions in the statements of Mir Badshah Khan, PW-3 and Sabz Ali, PW-4 in the above backdrop cannot be received as trivial and thus it is rightly held that the local police and FC personnel, being out of tune, the charge against the respondent is not free from doubt. Impugned view being a possible rendition warrants no interference. Appeal is dismissed."
In view of above discussion the criminal acquittal appeal is dismissed in limine.