KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.549 of 2001 filed by Shahzad Ghaffar, appellant who was convicted, under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to 10 years' R.I. And to pay a fine of Rs.50,000, in default one year R.I. By learned Additional Sessions Judge, Toba Tek Singh vide judgment dated 24- 3-2001. '
2. Briefly stated the facts of the case are that as a result of Naka, the present appellant alongwith his two accused was apprehended and as a result of the search 1200 grams heroin was recovered from the possession of the appellant. The Police .Also recovered Rs.30,000 from the appellant. Out of the recovered quantity of the heroin, 10 grams were sent for analysis. After completion of the investigation, the accused was challaned to face the trial. It may be noted here that the Police recovered Charas from Muhammad Sarwar co-accused of the appellant while nothing was recovered from Saeed another co-accused of the appellant.
3,. At the trial, prosecution in order to prove its case produced 6 witnesses in all. Then the learned DDA tendered in evidence report of the Chemical Examiner Exh.P.E. And closed the case of the prosecution. After that statements of the accused were recorded without oath and also on oath and in their defence also examined 4 D. Ws. However, after conclusion of the trial, the appellant was convicted and sentenced as stated above.
4. Learned counsel for the appellant in support of this appeal submits that the learned Additional Sessions Judge who tried the case had no jurisdiction to try the case and that the procedure having been prescribed in section 193, Cr.P.C. Having not been followed, the trial stands vitiated. Pith regard to notification produced by Mr. Muhammad Bilal Khan, the learned Additional Advocate-General, learned counsel submits that it is general in nature and that appointment of a Special Court should be by name. As to merits of the case are concerned, learned counsel submits that all the P.Ws. Are police officials and no independent witness has been either cited or produced before the trial Court. Adds that complainant is also the Investigating Officer which is against the law declared in 1999 PCr. LJ 1572 and that in fact amounts to mockery of law. Further adds that against the S.H.O./Investigating Officer, this Court had ordered for registration of a case under the Narcotics Act and in fact F.I.R.
No.344 dazed 29-9-2002 stands registered against him. Learned counsel submits that case of the present appellant is at par to case of the two acquitted co-accused. According to the learned counsel, on the basis of same evidence, co-accused of the appellant have been acquitted while the appellant has been convicted and sentenced which is against the principle of even handed treatment. Further submits that the appellant is not a previous convict. Also submits that there, are material contradictions in the statements of P.Ws. 5 and 6. It is argued that the sample was sent for analysis after a period of 3 months and 10 days. Learned counsel submits that according to Articles 49 and 87 of the Qanun-e--Shadadat, 1984 the judgments rendered in the cases of Saeed and Sarwar co-accused of the appellant can be taken judicial note of. Adds that appellant also made statement on oath as required under section 340(2), Cr.P.C. And produced 4 D.Ws. To depose that the appellant was arrested on 16-1-2000. Further adds that 1200 grams of heroin was recovered from the appellant at the time of occurrence but when the case property was produced in Court it was weighed as 1150 grams. Concluding his submissions, learned counsel submits that the prosecution has miserably failed to prove its case against the appellant and he is entitled to acquittal.
5. Learned A.A.-G. Assisted by learned counsel for the State submits that in view of the Notification, a copy whereof has been placed on record, the learned Additional Sessions Judge, Toba Tek Singh had the jurisdiction to try the case. As to merits of the case, it is submitted that in view of the law declared by the. Hon'ble Supreme Court in PLD 1997 SC 408, the 'Police witnesses are as good witnesses as public witnesses. Further submits that there was no previous background of enmity so as to falsely implicate the appellant. Adds that report of the Chemical Examiner is positive and that all the witnesses have supported the case of the prosecution.
6. We have heard learned counsel for the parties and have gone through the record. In view of the Notification issued by the Home Department, Government of Punjab dated 18th March, 1998, a copy whereof has been placed on record, the objection of learned counsel for the appellant with regard to jurisdiction of the trial Court to try the case is overruled. The crucial question in this case is that alongwith the present appellant, two accused naively Saeed and Sarwar were also apprehended from one and the same car. We have gone through the certified copy of the judgment dated 23-7- 2002 passed by Malik Falak Sher Farooka, Additional Sessions Judge in the case of Muhammad Saeed co-accused of the appellant whereby the said accused was acquitted. It has been stated by learned counsel for the appellant at bar after getting instructions from his client that Sarwar co- accused of the appellant from whose possession Charas was recovered has also been acquitted by the same learned trial Court. It is worth-mentioning that all the three accused were reported against through 3 different F.I.Rs. And trial was also held separately and that complainant in all the three cases was the same, Investigating Officer was the same and the evidence produced before the trial Court was also the same. The judgments of acquittal passed in favour of co-accused of the appellant were never challenged any further either by the State or the Anti-Narcotics Force.
Learned A.A.-G. Has not been able to convince us as to acquittal of co-accused of the appellant is concerned, and to our mind, the case of present appellant is at par to that of his acquitted two co- accused. The present appellant had also made statement under section 340(2), Cr.P.C. To rebut the evidence of the prosecution and also produced 3 D. Ws. To show that he was not arrested on the day of the alleged occurrence but was arrested on 16-1-2000 while the occurrence had taken place on 22-1-2000.
7. Learned counsel for the appellant has also placed on record a certified copy of F. I. R. No. :344 registered on 29-9-2002 under section 9-A of C.N.S.A., 1997 against Ikhlaq Raza, S.-I./Investigating Officer of the instant case. The complainant of the said F.I.R. Was involved by said Ikhlaq Raza, S.-I.
And the accused in the said case was sentenced to imprisonment for life by Malik Falak Sher Farooqaa Additional Sessions Judge, Toba Tek Singh. In appeal before this Court, a Division Bench consisting of Mr. Justice Karamat Nazir Bhandari, as his lordshil then was and our learned brother Mr. Justice Ijaz Ahmad Chaudhary acquitted the accused-complainant of F.I.R. No:344 dated 29-9- 2002 and an order for registration of a criminal case against Ikhlaq Raza, S.-I. And others were passed. There is also shocking delay of 3 months and 20 days in sending the sample of heroin for analysis which casts serious doubts about veracity of the prosecution story.
After taking into consideration the entire facts and circumstances of the case, that is, delay of 3 months and 20 days in sending the sample for analysis, acquittal of Saeed and Sarwar co- accused of the appellant on the same evidence, the date of rendering the judgment in favour of Mohammad Saeed being later in point of time to that of the appellant, their acquittal having not been challenged any further and registration of the F.I.R. Under the direction of this Court against Ikhlaq Raza, S.-I./S.H.O.; Investigating Officer in the instant case, sufficiently demonstrates that case against the appellant is of doubtful nature. So, while extending the benefit of doubt, we accept the appeal and set aside the conviction and sentence recorded against the appellant by the trial Court. The appellant is in jail and he shall be released forthwith, if not required to be detained in any other case.
N.H.Q./S-563/L