' FAZAL-UR-REHMAN, J.---This Criminal Appeal has been preferred against the judgment, dated 18- 8-1999 passed by the learned Judge of Special Court by which he convicted the appellant for the offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter called as Act) and sentenced him to suffer R.I. For 4 years and to pay a fine of Rs,10,000 (Rupees ten thousand), or in default of payment of fine to undergo S.I. For 5 months. The benefit of section 382- B, Cr.P.C. Was also extended to the appellant.
2. On 11-3-1999, on receipt of certain spy information to the extent that appellant Ghaus Bakhsh alias Ghausa was dealing in narcotics business and a transaction was to be carried out. P.W.1 Din Muhammad, Sub-Inspector of Crime Branch, Quetta heading a raiding party reached Link Road near Railway Phatak and started surveillance. It is stated that at about 5-00 p.m. The appellant was carrying a small bag on his shoulder and coming from railway line towards Sariab Road, Quetta. It is further stated that on the piontation of informer he was apprehended, the search of the plastic bag resulted into recovery of opium and Charas. The weighment was carried out, the Charas was found to be 3 Kgs. While opium 1-1/2 Kgs. The narcotics in question were taken into possession by P.W.1 Din Muhammad vide recovery memo. (Exh.P/1-A) in the presence of its marginal witnesses i.e Head Constable, Haji Sher Ahmed (P.W.2) and Constable, Muhammad Shafi (not produced). The Seizing Officer P.W.1 Din Muhammad then wrote Marasala (Exh.P/1-B) which was accordingly incorporated in the F.I.R. Being Crime No,22 of 1999 Police Station, Crime Branch under section 9 of the said Act. The investigation of the case was entrusted to P.W. Muhammad Tahir, S.I. After usual investigation the accused/appellant was sent up to face his trial.
3. On 19-5-1999, a formal charge under section 9(c) of the said Act was framed against the appellant to which he pleaded not guilty.
4. At the trial prosecution examined 4 witnesses. P.W.1 Din Muhammad, S.I. Is the complainant and at the relevant time he was posted as S.-I. Crime Branch who headed the raiding party. According to him on the pointation of informer the accused/appellant who was carrying a plastic bag on his shoulder was caught hold of by the police party. On checking the plastic bag contained 3 Kgs.
Charas and 1-1/2 Kgs. Opium and was taken into possession vide recovery memo. Exh.P.1-A and he then wrote Marasala which he has produced as Exh.P/1-B. In cross-examination he has admitted that neither any private witness was associated nor a search warrant was obtained from the Magistrate. He has also admitted that he knew the accused previously who is the resident of the area and had been using the same way for coming and going. He has also admitted that at the time of raid 4/5 persons were also found coming towards opposite direction. P.W. Haji Sher Ahmed who was also a member of the raiding party, acted as recovery witness. He has deposed that it was 5-00 p.m. Ghous Bakhsh alongwith 3/4 companions was found carrying a white bag and was overpowered while his companions ran away. The bag was taken into possession and recovery memo. Exh.P/1-A, was prepared. He has identified the seized Charas as Article 2 and opium Article
3. He did not identify the accused in the Court. He has however, voluntarily added that the accused is a fat person. In cross-examination he has admitted that he was examined by the police. He has also admitted that prior to raid Ghaus Bakhsh was not known to him. He has also admitted in his cross-examination that he has stated before the police that Ghause Bakhsh alongwith 3/4 companions were found coming and one of whom was carrying a bag on his shoulder, Ghaus Bakhsh was overpowered while his other companions by throwing the bag made their escape good. It is an admitted position that neither this witness has been disowned by the police nor he has been declared as hostile witness. It is also pertinent to note that the police statement recorded under section 161, Cr.P.C. Of co-Mashire, Constable Muhammad Shafi is on the same line as that of Haji Sher Ahmed. P.W.3. Syed Abdul Jabbar is a chemical expert whose statement is to the extent that he had carried out chemical examination in respect of suspected narcotics. Article A was found Charas (Cannabinoid) and Article raw opium. He has produced report as Exh.P/3-A. In cross- examination he has admitted that the laboratory where he is working was not a notified one under the provisions of the said Act The material was received on 16-3-1999 while the certificate was issued on 9-4-1999. P.W.4, Muhammad Tahir is the Investigating Officer and also a member of the raiding party. According to him the recovery was effected from the appellant. During investigation he had recorded statements of recovery witnesses under section 161, Cr.P.C. And sent the seized Charas and opium for chemical analysis. In cross-examination he has admitted that he had examined Haji Sher Ahmed and Muhammad Shafi under section 161, Cr.P.C. And it is maintained that accused alongwith 3/4 companions was found coming. He has also admitted that Sher Ahmed had stated to him that one of whom was carrying a plastic bag and an attempt was made to overpower him and his other companions by throwing the bag made their escape good. He has also confirmed the presence of Sher Ahmed and Muhammad Shafi being members of the raiding party.
5. In his statement recorded under section 342, Cr.P.C. The appellant has disputed the case of the prosecution and pleaded his innocence. According to him he was arrested from Bus Adda, when asked as to why the prosecution witnesses had deposed against him to which he stated that they have deposed with mala fide intention against him. The plea of the accused was that he was innocent and has falsely been implicated with the commission of alleged offence. He did not opt for making a statement on oath. He has, however, produced, D.W.1 Yasin Ahmed in his defence whose statement is to the extent that on 11-3-1999 at 4-30 p.m. Accused was present alongwith him in a company situated at Link Road Bus Adda. He has also stated that Feroze Lehri and Qurban were also present and they were taking tea. According to him accused had left for his house at 4- 45 p.m. And after a while he saw the police who gathered at Link Road and on his query he was told that they had arrested the proclaimed offender. According to him accused was empty-handed when he went away from company.
6. The learned Special Judge after assessment of the evidence came to the conclusion and expressed himself in the following terms:-- "In support of the case prosecution produced and examined four witnesses. A careful analysis of the evidence produced by the prosecution reveals that P.W.1 Din Muhammad, S.-I. (Complainant)
P.W.II Sher Ahmed, Head Constable and P.W.IV Muhammad Tahir, S.I. (I.0.) are direct ocular witnesses of the incident with regard to recovery of 3 Kgs. Baked Charas and 1-1/2 Kgs. Opium from exclusive possession of accused facing trial and there existed complete corroboration between their statements. All P.Ws. Were put to the test of lengthy cross-examination by learned counsel for the accused, but neither any discrepency was observed nor any contradiction came on record to shake the testimony of prosecution witnesses as truthful witnesses of the incident. P.W.III Syed Abdul Jabbar Chemical Expert conducted chemical analysis of recovered Charas and opium and issued report Exh.P/3-A, which has also supported the case of prosecution.
' The accused facing trial did not record his statement on oath, however, he produced defence witness namely Yasin Ahmed as D.W.1. D.W.1 stated that on 11-3-1999, he alongwith accused, Feroz Lehri and Qurban were present in his company and at about 4-45 p.m. The accused went towards his house and after some time police party were gathered at Link Road and they told that they apprehended an absconder accused. Thereafter, police party had taken the accused with them.
Statement of D.W.I proved that the accused was arrested at Link Road. According to the prosecution that the accused was apprehended at about 5-00 p.m. And statement of D.W.I shows that the accused went towards his house at about 445 p.m. From the company of D.W.I. D.W.1 admitted that arrest of accused meaning thereby that the accused is involved in dealing with the business of narcotics. In the instant case neither counsel for the accused nor the accused furnished any solid reason for his false implication in the instant case or to establish any enmity, I am not to doubt the testimony of prosecution witnesses who had given circumstances of the case in a very clear and consistent manner. Although P.W.II Sher Ahmed did not identify the accused present in the Court during recording his examination-in-chief but in his statement and cross- examination P.W.II admitted that in his police statement he stated that the accused Ghouse Bakhsh alongwith his 3/4 companions was seen by and out of them one was carrying a bag on his shoulder, the accused Ghous Bakhsh was apprehended while his companions ran away."
' The learned Judge accordingly convicted the appellant and sentenced him in the manner hereinabove mentioned. Hence this appeal.
7. We have heard Mr. Sohail Ahmed Rajput, Advocate learned counsel for the appellant and Mr. Ikhlaq Ahmed Shah, Advocate learned counsel for the State and have also examined the record.
8. In the case we have at one hand the evidence of the police personnel and on the other hand the statements of the appellant and his defence witness. We are not inclined to subscribe to the view of learned trial Court that the prosecution has established exclusive possession of the accused and there existed complete corroboration between the statements of prosecution witnesses. We also do not share with the view of the trial Court that no contradiction has been brought on record.
9. In the present case P.W. Din Muhammad, S.-I. Was the head of the raiding party. He knew the appellant previously. He is the complainant. According to him there was spy information that Ghaus Bakhsh was dealing in narcotics business. According to him the appellant was carrying a bag on his shoulder. The deposition of P.W.2 Haji Sher Ahmed, recovery witness is indicative of the fact that it was one of the companions of the appellant who was carrying the bag and after throwing the bag made their escape good. His statement is also indicative of the fact that appellant was not alone, but there were 3/4 persons who were found coming. The recovery witness has also not identified the accused in the Court. Similarly P.W.4, who had conducted the investigation of the case and recorded statements of the witnesses have also confirmed that the recovery witnesses in their statements had stated that the accused alongwith 3/4 companions were found coming. He has also confirmed that the recovery witness has stated to him that one of whom was carrying a plastic bag and an attempt was made to overpower him and his other companions by throwing the bag made their escape good. It clearly indicates that it was not the accused/appellant who was carrying the bag but someone else who made his escape good by throwing the bag, therefore, the prosecution has failed to establish exclusive possession of the appellant. Similarly, the statement of recovery witness who has not identified the accused/appellant in the Court made an attempt to improve his statement in the Court but in cross-examination have admitted to have stated before the police that Ghaus Bakhsh alongwith 3/4 persons were found coming and one of whom was carrying a bag on his shoulder, Ghaus Bakhsh was overpowered while his other companions by throwing bag made their escape good which position has also been confirmed by the Investigating Officer. The Investigating Officer is not merely a formal witness, several aspects of the case which the prosecution witnesses try to conceal from the Court can be brought out from the statements of the Investigating Officer.
According to Police Rules it is the 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 the real offender. He shall not commit himself pre-maturely to any view of the facts for or against any person.
10. Learned counsel has also contended that although the police of the Crime Branch had prior information but nobody from the public was associated with the recovery process although persons were available on the spot. He has also submitted that the prosecution has failed to establish exclusive possession of the accused persons and the recovery is doubtful, which cannot be relied upon. He has next argued that P.W. Sher Ahmed who is an important witness did not identify the appellant while recording the statement before the Court and there is gross contradiction in-between the statements of P.W.1 Din Muhammad, S.-I (complainant) and recovery witness. It has also been stated that there were 3/4 other persons who ran away from the spot but the police did not bother to chase them and recovery had not been effected from the accused. Site plan has also not been prepared.
11. There is also another aspect of the matter as perusal of record of the lower Court (page 37) indicates that the appellant has also been acquitted by the learned Sessions Judge, Quetta in a case being Hadd Case No,1 of 1999. There is mention of three F.I.Rs, which were registered by the Crime Branch Police against the accused as a result of raid laid down upon the wine store of accused/appellant Ghaus Bakhsh situated at Gharibabad on 9-3-1996. The cases were proceeded in absence of the appellant and another and thereafter, the files were kept on dorment files by the learned Sessions Judge. On his arrest he was sent to face his trial before learned Sessions Judge, Quetta. He has since been acquitted of the charge by the learned Sessions Judge vide his judgment, dated 7-7-1999 under section 265-K as there was no probability of the accused being convicted of the alleged offence. The appellant in his statement under section 342, Cr.P.C. Has stated that the witnesses had deposed against him on account of mala fide intention. It is also an admitted fact that the Seizing Officer knew the appellant previously. D.W.1 Yasin in his statement has also stated that he was told by the police that they had arrested proclaimed offender. In the presence of ill-motive imputed to the police and the defence evidence in rebuttal and the material discrepancies pointed out as above in the prosecution evidence furnished by the police make the prosecution case doubtful.
12. It is now well-settled proposition of law that in criminal cases the burden of proving its case rests on the prosecution which is duty bound to prove its case, against the accused, beyond reasonable doubt. This duty, it may be mentioned, does not change or vary even in a case in which no defence plea is taken by the accused. The defence plea. Is always to be considered in juxtaposition with the prosecution case and, in the final analysis, if defence plea is proved or accepted then the prosecution case would stand discredited/shattered. However, if the defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case, then in that case too, it would be enough. It may be noted that in case it is not established, at all, no benefit would accrue to the prosecution on that account and its duty to prove its case beyond doubt would not be diminished even if the defence plea is not proved or is found to be palpably false. (Reference is made to the authority reported in 1998 PCr.LJ page 808).
13. In the present case the defence has been able to put a dent to the prosecution case and the prosecution has not been able to establish the exclusive possession of the seized goods nor the recovery in view of material contradiction between the statements of police personnel as hereinabove mentioned.
14. From the above discussion we are of the view that the prosecution has failed to establish their case against the appellant beyond any reasonable doubt. Accordingly, we allow this appeal and set aside the judgment of the trial Court passed in Special Case No,10 of 1999 and also the conviction and sentence awarded to the appellant. By extending the benefit of doubt the appellant is acquitted and he be released forthwith if not required in any other case.