---S. 9(c)--Case property not produced in Court--Acquittal of--Appellant was apprehended with 2250 Grams opium out of which 113 grams separated for chemical analysis--

 PLJ 2022 Cr.C. 254 (DB)

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

----S. 9(c)--Case property not produced in Court--Acquittal of--Appellant was apprehended with 2250 Grams opium out of which 113 grams separated for chemical analysis--Actual fact case property was not produced before the Court--Even in the statement of accused recorded under section 342, Cr.P.C. no specific question in this regard was put to the appellant--Appeal is allowed.

                                                                          [Pp. 256 & 257] A & B

M/s. Sheikh Javed Akhtar and Mian Arshad Waqas, Advocates for Appellant.

Mr. Muhammad Ali Shahab, Deputy Prosecutor General for State.

Date of hearing: 12.2.2020.

 PLJ 2022 Cr.C. 254 (DB)
[Lahore High Court, Multan Bench]
Present: Ch. Mushtaq Ahmad and Farooq Haider, JJ.
HASHMAT AHMAD--Appellant
versus
STATE and another--Respondents
Crl. A. No. 787 of 2019, heard on 12.2.2020.

Judgment

Ch. Mushtaq Ahmad, J.--Hashmat Ahmad, appellant has challenged his conviction and sentence through the instant appeal. He was tried by learned Additional Sessions Judge, Layyah in case FIR No. 17 dated 21.1.2019 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Saddar, Layyah for the recovery of 2250 grams Poast from his possession.

2. At culmination of trial, learned trial Judge vide his judgment dated 28.8.2019 convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997, PPC and sentenced to undergo 04-Years R.I. with fine of Rs. 8500/-and in case of default of payment thercol to undergo further imprisonment for 4½ months S.I. 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. FIR (Exh.PA) was registered on the complaint (Exh.PB) lodged by Akhtar Hussain, S.I (PW-4) mentioning therein that on 21.1.2019 at 1.40 p.m. he alongwith Irshad Ali C/307, Kashif Numan C/689, Ghulam Hashim C/227, Khalid Iqbal PQR was on patrolling duty on official vehicle No. LYG-25 driven by Ghazanfar Abbas C/714 near Heera Adda where a person who subsequently disclosed his name as Hashmat Ahmad S/o Shaukat Ali on seeing the police party walking towards Western side who on suspicion was apprehended. On personal search a polythene bag carrying on right hand was checked and found Opium (Poast) which on weigh came to 2250 grams out of which 113 grams was separated for analysis purpose. Hence, this case.

4. Prosecution got examined five witnesses to bring home charge against the appellant. Learned DDPP tendering in evidence report of Chemical Examiner (Exh.PF) closed the prosecution evidence on 21.8.2019. Thereafter statement of accused under Section 342, Cr.P.C. was recorded who simply denied the allegation. However, appellant did not opt to record his statement under Section 340(2), Cr.P.C. in disproof of the charge levelled against him.

5. After conclusion of the case, learned trial Court convicted and sentenced the appellant as mentioned in opening paragraph of this judgment.

6. Learned counsel for the appellant argued that prosecution has failed to prove its case against the appellant beyond reasonable doubt; that case property was not got exhibited during trial which makes the entire prosecution case doubtful even no question qua case property was put to the appellant while recording his statement under Section 342, Cr.P.C. Learned counsel vehemently argued that when a piece of evidence not put to an accused under Section 342, Cr.P.C. the same could not be used against him for recording conviction and sentence; that there are contradictions in depositions of the prosecution witnesses on material points and that learned trial Court did not appreciate the evidence in its true perspective.

7. Conversely learned Deputy Prosecutor General has defended the impugned judgment. It was argued that prosecution has proved its case beyond reasonable doubt; that appellant was caught red handed with huge quantity of Opium 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.

8. Arguments heard. Record perused.

9. Facts narrated in coomplaint (Exh.PB) on the basis of which First Information Report (Kxh.PA) was registered are that on 21.1.2019 at 1.40 p.m. PW-4/complainant Akhtar Hussain, S.I. alongwith four police officials was on patrolling duty on official Vehicle No. LYG-25 driven by Ghazanfar Abbas C/714 near Heera Adda where Appellant was apprehended with 2250 grams Opium out of which 113 grams was separated for Chemical Analysis. In order to prove this assertion prosecution got examined five witnesses besides positive report of PFSA (Exh.PF). Out of them PW-4/complainant and PW-3 Kashif Nauman 689/C were the recovery witnesses of 2250 grams Opium (Post) allegedly recovered from the appellant whereas PW-5 Muhammad Umer Khan, S.I. was Investigating Officer of this case. Neither in the statements of recovery witnesses (PW-3 & PW-4) nor in the statement of I.O./PW-5 exhibition of case property has been mentioned. We have also gone through the recovery memo. Exh.PC wherein mentioning of case property as P1 or P2 has not been found. It means in actual fact case property was not produced before the Court. This alone is sufficient to make the case of prosecution highly doubtful. Even in the statement of accused recorded under Section 342, Cr.P.C. no specific question in this regard was put to the appellant. It is now well settled that a piece of evidence not put to the accused during his examination under Section 342, Cr.P.C. that could not be used against him for maintaining conviction and sentence. It is worth mentioning that statement of accused u/S. 342, Cr.P.C. is not a mere formality rather its primary object is to afford him an opportunity to explain the circumstances which-are likely to influence the mind of the Judge in arriving at a conclusion adverse to him. In this backdrop, prosecution has failed to bring on record any cogent evidence to prove the guilt of accused. It is well settled that earning the relief of acquittal the accused person is not obliged to establish number of circumstances creating doubts but even a single circumstance creating a reasonable doubt in the prudent mind about guilt of accused is sufficient to extend the benefit of doubt to him.

10. 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 change. Appellant shall be released from jail forthwith, if not required in any other case.

(K.Q.B.)          Appeal allowed