Muhammad Waseem vs The State and another

Ch. Sultan Mahmood-J: Muhammad Waseem son of Ghulam Yasin was tried by the learned Addl.

Sessions Judge/Judge Special Court (CNSA) 1997, Lodhran in case FIR No.418 of 2023 dated 06.03.2023 under section 9(1), entry No.3 column No. (1), entry(c) of the Control of Narcotics Substance Act, 1997 PS. Saddar Lodhran District Lodhran. The learned Trial Court through the judgment dated 19.10.2023 convicted the appellant and sentenced him as under: - Muhammad Waseem son of Ghulam Yasin was convicted u/s 9(1) 3-C of Control of Narcotics Substance Act 1997 and sentenced to Rigorous imprisonment for Nine years and to pay a fine of Rs.1,00,000/- (Rupees one lac only), in default thereof the convict shall further undergo simple imprisonment for six months. The appellant is however given the benefit of the Section 382-B of the Code of Criminal Procedure, 1898.

2. Being dissatisfied, the appellant lodged the instant Criminal Appeal No.448 of 2023 and impugned his conviction and sentence.

3. Briefly, facts of the matter are that the appellant was apprehended by the police on 06.03.2023 and two packets of charas weighing 1060 grams each (P1 & P2), total 2120 grams were allegedly recovered from his possession, which was taken into possession through recovery memo (Exh.PA).

4. On the above stated facts, FIR No.418 of 2023 (Exh.PD) dated 06.03.2023 under section 9-(1)3c of the Control of Narcotics Substance Act, 1997 PS. Saddar Lodhran District Lodhran was registered against the appellant.

5. After the formal investigation of the case, report under section 173 Cr.P.C. was submitted before the learned Trial Court and the present appellant was sent to face the trial. The learned Trial Court framed charge against the appellant on 22.05.2023, to which he pleaded not guilty and claimed trial and learned Trial Court proceeded to examine the prosecution witnesses.

6. In order to prove the facts in issue, prosecution got as many as six witnesses examined in total.

The prosecution got examined Munir Ahmad S.I. the complainant of the case as (P.W-2). He apprehended the present appellant on pointation of a spy and recovered 1060/1060 grams of chars (P1 & P2) from one sealed parcel of blue colour shopper (P3) and prepared and got attested the recovery memo (Exh.PA) by Muhammad Arif 389/C (P.W-5) & Ghulam Sajjad 315/C (P.W-6) and handed over the five parcels containing two samples of chars weighing 53/53 grams and two sealed parcels of the remaining case property less samples and one sealed parcel of blue shopper and also handed over the appellant to Shahid Iqbal S.I, (P.W-3). Munir Ahmad (P.W-2) recorded statements of P.W-2, P.W-5 & P.W-6 under section 161 Cr.P.C. prepared rough site plan of place of occurrence as (Exh.PC) and deposited the samples of chars and remaining case property to the Moharrir of the police station for keeping it safely in Mall Khana. On 07.03.2023, Muhammad Rashid (P.W 4) handed over to Munir Ahmad (PW-2) two sealed parcels of samples of chars for their onward transmission to PFSA, which he deposited on that very day. On 12.03.2023, Muhammad Rashid (P.W-4) handed over to (P.W-2) two sealed parcels of case property less sample alongwith one sealed parcel of shopping bag of blue colour for its onward deposit at Saddar Mall Khana Circle Lodhran. The same was deposited on that very day by said (P.W-2) and handed over to Allah Yar A.S.I/Incharge Saddar Mall Khana, Lodhran (P.W-1).

7. On 09.10.2023, Mr. Muhammad Usman Koreja, learned ADPP for the State after tendering computerized rappats, manual rapats, Road certificate bearing No.286/21, Road Certificate No.316/21 and report of Punjab Forensic Science Agency case No.PFSA2023-593268-NAR-153180 (Exh-PE to ExhPN), closed the prosecution evidence.

8. After completion of the prosecution evidence, the learned Trial Court recorded the statement of appellant under section 342 Cr.P.C. The appellant denied the charges and pleaded innocence. He opted not to appear in terms of section 340(2) of the Code of Criminal Procedure, 1898, however tendered (Exh.DC, Exh.DD, Exh.DE and Exh.DF) as defence evidence, whereby he tried to prove that prosecution story is false and he has been falsely implicated.

9. After conclusion of pro & contra evidence and hearing the parties the learned Trial Court convicted the appellant and sentenced him as narrated above.

10. The learned counsel for the appellant submitted that his client has been implicated in a false case and the case of the prosecution is marred by discrepancies and lope wholes. The conviction cannot be sustained on the basis of the sketchy evidence tendered by the prosecution in the instant case.

11. Learned Deputy Prosecutor General stated that appellant was apprehended red handed and chars was recovered from his exclusive possession. Chemical examination of the samples confirms that the recovered item was chars. The prosecution has proved the complete and exclusive chain of possession and its safe custody till its deposit in Saddar Mall Khana as mandated under the law.

The learned Trial Court has rightly convicted and sentence the appellant. There is no reason to interfere in the findings and sentence of the learned Trial Court. Lastly prayed for dismissal of the appeal in hand.

12. Heard the parties and perused the record.

13. Ghulam Sajjad 315/C (P.W-6) in his cross-examination has supported the prosecution case and narrated the sequence of events on the fateful day, 06.03.2023, when the appellant was arrested, which reads as follows:- "I joined my duty at 08:00 A.M on 06.03.2023. I remained present at the police station after 08:00 A.M. We left the police station for patrolling at about 02:10 P.M. Firstly we went to Kehror Chowk and remained there for about 4/5 minutes then we stopped for two minutes at bypass and then we proceeded towards Adda Nizam Abad. We remained present at Adda Nizam Abad for five minutes when the spy came there. It took 5-6 minutes to reach at the alleged place of recovery from Adda Nizam Abad. It took 20/25 minutes in the apprehension of accused till the draft of the complaint.

Arif 389/C returned to the place of recovery at about 04:15 P.M after registration of the FIR. We remained present at the place of occurrence for about 20/25 minutes after the arrival of Arif 389/C. It is incorrect to suggest that I am deposing falsely.

When confronted in the later part of that cross-examination, he told a totally different tale, which runs contrary to his previous statement made in case FIR No.421/2023 of the same police station.

His statement in this case reads as follows:- "It is incorrect that I have got recorded in my statement in another case/FIR No.421/23 u/s 9(1)3c dated 06.03.2023 at PS Saddar, Lodhran that "on 06.03.2023 at about 02:10 P.M we left the police station and firstly we reached at PSO Pump situated at Pathan Wala Phatak where we spent half an hour, then we slowly proceeded to Bhatti Hotel where we stayed for 10/15 minutes and spy came there and then we apprehended accused Saleem from Wadi-Nimal Hotel." Confronted with Exh.DB (consisting upon report u/s 173 Cr.P.C, statement of Ghulam Sajjad 315/C dated 10.07.2023, cross examination on Ghulam Sajjad 315/C dated 30.09.2023 before the Court of Mr. Asif Sial, Addl: Sessions Judge, Lodhran in case/FIR No.421/23, U/S 9(1)3c dated 06.03.2023 at PS Saddar, Lodhran) where it is not so recorded. It is incorrect to suggest that I have stated in my cross examination in the above said other narcotics case that "when we apprehended the accused it was 04:45/04:50 P.M." Confronted Exh.DB where it is not so recorded."

Whereas in case FIR No.421/23, U/S 9(1)3c dated 06.03.2023 at PS Saddar, Lodhran, this witness made a statement while appearing as (P.W-4), which read as under:- "When we left the P.S for patrolling at about 2:10 PM on the day of occurrence firstly we reached at PSO Pump situated at Pathan Wala Phatak where we spent half an hour, then we slowly proceeded to Bhatti Hotel where we stayed at 10/15-minutes and spay came there. Spy met with Munir Ahmad ASI and passed information to him that a person, who was resident of other district, was standing in front of Wadi-Niml hotel, he can be apprehended if raided upon and charas can be recovered. Where-after we proceeded towards the place of occurrence and spy head on us.

Spy pointed out towards the accused and sent away. Accused was standing alone. There was a hotel in the west of the side where the accused standing. There were many people at the hotel.

The accused was standing on the other road from the hotel. When we apprehended accused it was 04:45/04:50 PM. It took about one hour in preparing samples, preparing memo, drafting complaint after the arrest of the accused by Munir Ahmad ASI. Munir Ahmad ASI handed over to me complaint at about 05:50 PM."

14. This statement was brought on record by placing as (Exh.DB) and the witness was confronted with the same. Learned Trial Court incorrectly held "where it is not so recorded", whereas we have compared the statement with (Exh.DB) and it is so recorded in it. It does not apply to the prudent mind that a particular set of officials was preforming functions at two different locations at one point in time. This makes the case of prosecution highly improbable and the prosecution has failed to prove its case beyond shadow of doubt. It was faintly argued by Deputy Prosecutor General that statements made by the witnesses in other cases cannot be considered while deciding the case.

15. In this case, the defence has used the previous statement of witness to contradict him. Relevant provision of the Qanoon-e-Shahadat Order, 1984 its Article 151, which reads as follows: -

151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him.

(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit:

(2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence:

(3) by proof of former statements inconsistent with any part of his evidence, which is liable to be contradicted.

It is a method recognized by law under 151(3)^[1] of the Qanoon-e-Shahadat Order 1984 that the credit of a witness can be impeached by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted^[2]. If former statement was in writing or was reduced to writing, the attention of witnesses must be called to those part of it which are used for purpose of contradicting him^[3]. It is also admitted position of law that previous statement can be relied for the purpose of contradiction but not as substantive evidence^[4], so applying the above principles this Court has noted that defence has exhibited the previous statement of the witness and has confronted him with the same, so while it has been used for contradiction and has not been used as substantive, as not tendered in the statement of the Appellant, therefore, it is safe to use the contradiction as it passes the judicially approved standards of evidence. The contradiction so noted in the statement of PW 6 casts a serious doubt on the prosecution story.

16. In consequence of the aforementioned discussion, we are inclined to hold that the conviction and sentence recorded by the learned Additional Sessions Judge, Lodhran vide judgment dated 19.10.2023 in the circumstances are not sustainable. We, thus by allowing the instant criminal appeal No.448 of 2023, lodged by the appellant Muhammad Waseem s/o Ghulam Yaseen, set aside the judgment dated 19.10.2023 passed by learned Additional Sessions Judge/Judge Special Court (CNSA), 1997, Lodhran and acquit the appellant namely Muhammad Waseem son of Ghulam Yaseen of the charge levelled against him by extending him the benefit of the doubt. He is directed 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.