--Appreciation of evidence--Recovery witnesses were discrepant--Chain of safe custody of property remained doubtful--

 PLJ 2021 Cr.C. (Lahore) 766 (DB)

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----S. 9(c)--Sentence--Challenge to--Chain of safe custody of property remained doubtful--Appreciation of evidence--Recovery witnesses were discrepant--Failed to prove custody of property--Where severe punishments are provided high standard quality of evidence is required to record conviction which is lacking in case in hand--Even otherwise, it is settled proposition of law that when prosecution evidence is found un-reliable, conviction cannot be recorded against an accused person--Prosecution has failed to prove charge against appellant beyond reasonable doubt--Resultantly, criminal appeal was allowed.                         [P. 769] A

M/s. Taimur Haider Khan and Rai Muhammad Ashfaq Kharal, Advocates for Appellant.

Mr. Muhammad Waqas Anwar, Deputy Prosecutor General for State.

Date of hearing: 11.2.2021.

 PLJ 2021 Cr.C. (Lahore) 766 (DB)
Present: Malik Shahzad ahmed Khan and Ch. Mushtaq Ahmad, JJ.
ABDUL RAUF--Appellant
versus
STATE--Respondent
Crl. A. No. 194420-J of 2018, heard on 11.2.2021.

Judgment

Ch. Mushtaq Ahmad, J.--Abdul Rauf, appellant has challenged his conviction and sentence through the above cited criminal appeal. He was tried by learned Additional Sessions Judge, Bhalwal in case FIR No. 196 dated 11.8.2015 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Phularwan, District Sargodha for the recovery of 06 Kilograms Charas.

2. At the culmination of trial, learned trial Judge vide his judgment dated 6.3.2018 convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997, PPC and sentenced to 08 Years R.I. He was also held liable to pay fine of Rs. 40,000/- and in case of default of payment thereof to undergo further imprisonment for six months S.I. with benefit of Section 382-B, Cr.P.C. Feeling aggrieved by that judgment the appellant preferred this appeal.

3. Prosecution case in brief was that on 11.8.2015 at 6.30 p.m. complainant Nasir Hussain, S.I. (PW-4) alongwith four police constables was on patrolling duty near Salim Interchange, Lahore-Islamabad Motorway where a person who subsequently disclosed his name as Abdul Rauf S/o Sultan Muhammad resident of House No. 1326, Ganj Mohallah, Peshawar (KPK) came towards Interchange. On seeing the police party he promptly returned back, however, on suspicion he was apprehended. At the time of arrest he was holding a shopper bag in his right hand containing Charas in the shape of six packets which on weighing came to six kilograms (P1). Weight of each packet was 1000 grams. Out of which, six grams substance was separated from each packet and prepared six separate sample parcels for sending it to the office of PFSA, Lahore for analysis purpose. Besides this police also recovered cash amount of Rs. 3000/- (P2) and a mobile phone set G-Five (P4) vide recovery memo Exh.PB.

4. After completion of investigation report under Section 173, Cr.P.C. was submitted in Court. Appellant was charge sheeted on 9.12.2015 in which he pleaded not guilty and claimed trial. Prosecution in order to prove its case got examined five witnesses in all. Learned DDPP after giving up Maqsood Elahi 219/C being unnecessary and tendering in evidence report of Punjab Forensic Science Agency, Lahore (Exh.PE) closed the prosecution evidence on 24.1.2018. After completion of prosecution evidence statement of appellant under Section 342, Cr.P.C. was recorded. In answer to a specific question ‘why this case against him and why the PWs have deposed against him’ he simply denied the charge rather alleged that he was implicated falsely by the local police in connivance with his opponents. However, in support of his assertion appellant did not produce any evidence in his defence.

5. Learned trial Court at the end of trial convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment.

6. Learned counsel for the appellant argued that impugned judgment is against law and facts of the case; that appellant has been implicated falsely as nothing was recovered from him; that prosecution has failed to prove safe custody of case property as well as sample parcels; that recovery witnesses were discrepant on material points of the case and that learned trial Court has not appreciated the evidence in its true perspective.

7. Conversely, learned law officer while defending the judgment of learned trial Court argued that appellant was caught red handed with huge quantity of contraband Charas; that during investigation he could not furnish any justification for being in possession of six kilograms Charas and that learned trial Judge after scrutinizing the entire record rightly convicted the appellant. Prays that this appeal may be dismissed.

8. Arguments heard. Record perused.

9. Facts contained in complaint (Exh.PC) on the basis of which FIR (Exh.PA) was registered are that on 1.8.2015 at 6.30 p.m. Nasir Hussain, S.I (PW-4) alongwith three police Constables was present at Lahore-Islamabad Motorway, Salam Interchange where the present appellant came on foot while holding a plastic bag in his right hand. On seeing the police party he quickly returned back but he was apprehended and the aforesaid plastic bag was taken into possession containing six kilograms Charas in the shape of six packets. On weighing, weight of each packet came to one kilogram and in this way total six kilograms Charas was recovered from the appellant at the spot. To prove the accusation, prosecution mainly relied on testimony of PW-4 Nasir Hussain, S.I./complainant and PW-3 Sajjad Hussain 1374/C marginal witness to recovery memo (Exh.PB) of 06 kilograms Charas. PW-5 Mazhar Ali, S.I. was Investigating Officer of this case. We have gone through the statement of complainant (PW-4). According to him, he handed over case property and custody of accused to the I.O. at the spot. Same was the statement of PW-3 Sajjad Hussain 1374/C. But PW-5/I.O. in his statement did not utter a single word regarding receiving case property from the complainant at the place of recovery. PW-5 simply stated that he handed over the case property to the Moharrir. Muhammad Aslam 837/MHC was posted as Moharrir in the Police Station Phularwan at the relevant time. While appearing before the Court as PW-2 this witness stated that on 3.9.2015 he handed over six sealed parcels said to contain Charas to Nasir Hussain, S.I. (complainant) for onward transmission to the office of PFSA, Lahore intact. However, complainant (PW-4) remained silent on this aspect of the case. It was nowhere mentioned in his statement that the date when he received the sample parcels from Moharrir for depositing the same in the forensic lab. In the given scenario, chain of safe custody of case property remained doubtful. In special enactment where severe punishments are provided high standard quality of evidence is required to record conviction which is lacking in the case in hand. Even otherwise, it is well settled proposition of law that when prosecution evidence is found un-reliable, conviction cannot be recorded against an accused person.

10. In the above backdrop, we have noted a number of variations in the prosecution evidence. Therefore, in our view prosecution has failed to prove charge against the appellant beyond reasonable doubt. Resultantly, this criminal appeal is allowed. The conviction and sentence of the appellant vide impugned judgment dated 6.3.2018 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