PLJ 2021 Cr.C. 1423 (DB)
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 9(c) & 48--Conviction and sentence--Challenge to--Benefit of doubt--Recovery of charas--As per prosecution version 5500 grains contraband Charas (P1) recovered from gas cylinder lying in dicky of Car case main, emphasis of counsel for appellant was that aforesaid gas cylinder was never produced before Court--No doubt recovery memo. indicates that alongwith 5500 grams Charas, Car In this its Registration Book was also taken into possession but it clarified by prosecution that as to whether gas cylinder was actually with car for CNG purpose and in that eventuality whether: it was nowhere functional condition--Technically there is no probability that a gas cylinder was containing 5500 grams Charas at same time would be functional for CNG purpose particularly when its one portion was cut and welded for switch on it--It is evident that it was a separate article of car which was kept in dicky of car for transporting above mentioned narcotics Besides this, dimension and size of cylinder was also not mentioned by prosecution as to whether such a huge quantity of contraband charas could be stored in it non-production of gas cylinder during trial makes case of proscription highly doubtful--In this special enactment when severe punishments are provided high standard quality of evidence is require to record conviction which unfortunately is lacking in case in hand--Even otherwise, when prosecution evidence is found un-reliable, conviction, cannot be recorded against an accused person--Appeal was allowed by extending benefit of doubt. [P. 1426] A
2012 SCMR 577.
Mr. Nasir Mahboob Tiwana, Advocate for Appellant.
Ms. Noshe, Deputy Prosecutor General for Sate.
Date of hearing: 3.12.2020.
PLJ 2021 Cr.C. 1423 (DB)
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan and Ch. Mushtaq Ahmad, JJ.
ZAR MUHAMMAD--Appellant
versus
STATE and another--Respondents
Crl. A. No. 202897-J of 2018, heard on 3.12.2020.
Judgment
Ch. Mushtaq Ahmad, J.--Zar Muhammad, appellant challenged his conviction and sentence through the instant appeal. He was tried by learned Additional Sessions Judge/Judge, Special Court (CNS), Bhalwal in case FIR No. 41 dated 1.2.2017 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Phularwan, District Sargodha for the recovery of 5500 grams Charas.
2. At culmination of trial, learned trial Judge vide his judgment dated 7.2.2018 convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 PPC and sentenced to undergo 7½ -Years R.I. with fine of Rs. 35000/- and in case of default of payment thereof to further undergo simple imprisonment for six months. Benefit of Section 382-B Cr.P.C. was extended to the appellant/convict. Feeling aggrieved by that judgment the appellant, preferred this appeal.
3. Prosecution case as formulated in ‘Murasila’ (Exh.PA) is that on 1.2.2017 at 6.10 p.m. Shahzad Faiz Inpector/SHO (PW-4) along with five police officials on Mobile-1 vehicle driven by Shahbaz Ahmed 732/C was on patrolling at SOS Salam Chowk where his source passed on information that a Car No. 8556-FDU (Sazuki Margala Gray Colour) is coming from Phularwan. As per informer in the said car huge quantity of contrabad Charas was concealed in gas cylinder after cutting it. On this information complainant along with his party started surveillance at Salam Chowk. After a short while said car came from Chakian side. The driver of the car was signled to stop who during interrogation disclosed his name as Zar Muhammad S/o Meer Alam Khan Caste Pathan, resident of Sango, Tehsil and District Peshawar (KPK). Dicky of the car was opened by the accused. The Gas Cylinder lying in the dicky was opened and found charas which on weighing came to 5500 grams (P1). Complainant after sealing the entire bulk of Charas sent it to the office of PFSA, Lahore for analysis purpose. Besides this, police also took into possession Car No. 8556-FDU, Cash Rs. 1200/- (P2), Mobile Phone Nokia (P3), Registration Book of Car No. 8556-FDU (P4), CNIC of accused (P5).
4. Prosecution got examined five witnesses to bring home charge against the appellant. Learned DDPP after giving up PW Naveed Khan 706/C being unnecessary and tendering in evidence report of Chemical Examiner (Exh.PE) closed the prosecution evidence on 28.11.2017.
5. Thereafter statement of accused under Section 342, Cr.P.C. was recorded who simply denied the allegations. However, appellant did not opt to record his statement under Section 340(2), Cr.P.C. in disproof of the charge levelled against him.
6. After conclusion of the case, learned trial Court convicted and sentenced the appellant as mentioned in opening paragraph of this judgment.
7. Learned counsel for the appellant argued that prosecution has failed to prove its case against the appellant beyond reasonable doubt; that as per prosecution version contraband Charas was recovered from gas cylinder lying in the dicky of the car but during trial that cylinder was not produced before the Court as case property; that PW Allah Ditta who took the complaint to the police station was not examined by the prosecution; that non-production of this important witness before the Court without any cogent reasons makes the case of prosecution doubtful. Reliance is placed on the case titled Minhaj Khan vs. The State reported as 2019 SCMR 326 and that learned trial Court did not appreciate the evidence in its true perspective.
8. Conversely learned Deputy Prosecutor General has defended the impugned judgment. It has been argued that prosecution has proved its case beyond reasonable doubt; that appellant was caught red handed while transporting huge quantity of charas to which he could not furnish any plausible explanation and that findings recorded by learned trial Court qua involvement of the appellant were based on sound and solid reasons not open to any exception.
9. Arguments heard. Record perused.
10. As per prosecution version 5500 grains contraband Charas (P1) was recovered from gas cylinder lying in the dicky of Car No. 8556-FDU. In this case main emphasis of learned counsel for the appellant was that aforesaid gas cylinder was never produced before the Court. No doubt recovery memo. Exh.PB indicates that alongwith 5500 grams Charas, Car No. 8556-FDU, and Registration Book was also taken into possession but it is nowhere clarified by the prosecution that as to whether gas cylinder was actually fixed with the car for CNG purpose and in that eventuality whether it was in functional condition. Technically there is no probability that a gas cylinder containing 5500 grams Charas at the same time would be functional for CNG purpose particularly when its one portion was cut and welded for fixing switch on it. It is evident that it was a separate article of the car which was kept in the dicky of the car for transporting above mentioned narcotics Besides this, dimension and size of the cylinder was also not mentioned by the prosecution as to whether such a huge quantity of contraband charas could be stored in it. The non-production of gas cylinder during trial makes the case of proscription highly doubtful. In this special enactment when severe punishments are provided high standard quality of evidence is required to record conviction which unfortunately is lacking in the case in hand. Even otherwise, when prosecution evidence is found un-reliable, conviction, cannot be recorded against an accused person. On the same proposition Hon’ble Supreme Court of Pakistan in Amjad Ali vs. The State (2012 SCMR 577) held as under:-
“Admittedly the case property, the stepney of the car was never produced during trial to verify as to whether it could contain such a huge quantity of the Narcotics in question. The afore referred elements of debut surrounding the prosecution case have led us to hold that the prosecution has failed to prove its case beyond reasonable doubt to sustain conviction.
11. On re-appraisal of evidence we are of the opinion that prosecution has failed to prove the charge against the appellant beyond reasonable doubt. Therefore, while extending benefit of doubt, we allow this appeal. The conviction and sentence of the appellant is set aside. He is acquitted of the charge. Appellant shall be released from jail forthwith. If not required in any other case.
(A.A.K.) Appeal allowed
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