PLJ 2022 Cr.C. 734 (DB)
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Conviction and sentence--Challenge to--Recovery of heroin and narcotics--Case was highly doubtful--Forensic report--As per prosecution case sealed sample parcel was submitted by 169/C (PW-1) with office of Punjab Forensic Science Agency--Whereas on perusal of Narcotics Analysis report of Punjab Forensic Science Agency it reveals that “W” submitted one (01) sealed parcel on--As it is case of prosecution that PW-3 moharrar handed over a parcel of sample to (PW-1) for onward transmission to office of Punjab Forensic Science Agency, Lahore, whereas--Narcotic-Analysis report of Punjab Forensic Science Agency available on record revealed that “W” deposited parcel of sample with office of Punjab Forensic Science Agency, Lahore, Whether sample deposited by “W” with office of Punjab Forensic Science Agency, Lahore relates to alleged contraband seized from possession of appellant has not been proved--There is, thus, no evidence to connect Narcotics Analysis report of Punjab Forensic Science Agency with substance that was seized from possession of appellant--The sample deposited in (he office of Punjab Forensic Science Agency could not he related with sample taken from seized substance from possession of appellant--This contradiction went to root of case--The said contradiction in deposition of aforementioned police officials as well as Narcotics Analysis report cannot be stated to he minor and irrelevant in absence of positive and material evidence.
[P. 736] A & B
Ch. Asghar Ali, Advocate with Appellant.
Mr. Muhammad Waqas Anwar, Deputy Prosecutor General for State.
Date of hearing: 19.1.2022.
Judgment
Miss Aalia Neelum, J.--Appellant-Mst. Phatain Bibi widow of Muhammad Hayat, Caste Kobhar, resident of Saboo Wala was involved in case F.I.R. No. 28/2014, dated 01.02.2014, offence under Section 9 (C) of The Control of Narcotic Substances Act, 1997, registered at Police Station Muhammad Wala, Tehsil Lalian, District Chiniot and was tried by the learned Additional Sessions Judge, Chiniot. The learned trial Court seized with the matter in terms of judgment dated 30.09.2014 convicted the appellant under Section 9 (C) of The Control of Narcotic Substances Act, 1997 and sentenced him to undergo two years simple imprisonment with the direction to pay
Rs. 25,000/- as fine and in case of default in payment of fine, the appellant would further undergo simple imprisonment for 01 month. The benefit of Section 382-B of Cr.P.C. was also extended in favour of the appellant. The appellant has assailed her conviction through filing instant criminal appeal.
2. The prosecution story as alleged in the F.I.R. (Ex.PB) lodged on the complaint (Ex.PC) of Ubaid Ullah, SI (PW-4) is that on 01.02.2014, he (PW-4) along with Zafar Ali 169/C (PW-1), Azhar Iqbal 406/C (given up PW) and Muhammad Ayub 77/C, while on official vehicle, driven by Basharat Ali 1131 /C, was present at Adda Sabo Wala, where, he (PW-4) received spy information that a notorious drug peddler namely Mst. Phatain Bibi was sitting outside the house and was selling heroin to the customers and if immediate raid was conducted, then she could be apprehended. On the information of the Informer, a lady constable Ambreen Bibi 591/LC (PW-2) was called and when he (PW-4) along with police officials reached near the house of the appellant, she tried to escape but was apprehended by way of chasing. During search of the appellant, heroine weighing 1150-grams was recovered, which was taken into possession vide recovery memo. (Ex.PA). Out of the recovered substance, one gram heroine was separated for chemical analysis and remaining parcel was sealed with stamp of A.K. The complainant (PW-4) drafted a complaint (Ex.PC) and sent the same to the police station for registration of formal F.I.R (Ex.PB).
3. After hearing the arguments advanced by the learned counsel appearing on both sides, the learned trial Court, while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.
4. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy Prosecutor General and have minutely perused the record available on the file.
5. After a careful scrutiny of the material available on record, we come to the conclusion that the prosecution has not established link between the recovered substance i.e. Heroin and Narcotics Analysis report of Punjab Forensic Science Agency (Ex.PE), making the case of the prosecution highly doubtful. Zafar Ali, 169/C (PW-1) (this witness was declared hostile) deposed during cross-examination conducted by learned ADPP that:
"It is correct that on 01.02.2014 Mohnrrar Inayat Ullah had handed over one parcel to me to present the same before the FSA. It is correct that I deposited the same in the said Office on 02,02,2014."
Similarly, Zafar Ali, 169/C (PW-1) deposed during cross-examination conducted by learned defence counsel that:
"The Moharrar handed over the case property to me on 01.02.2014 and I submitted said case property to the concerned office on 02.01.2014."
On the other hand, Inayatullah Khan, 285/MHC (PW-3) deposed during examination-in-chief that:
"On 02.02.2014 I handed over the sample parcel to Zafar Ali 169/C to send the same for chemical analysis in the office of Forensic Science Agency Lahore."
aforementioned police officials as well as Narcotics Analysis report (Ex.PE) cannot be stated to he minor and irrelevant in the absence of the positive and material evidence.
6. So after due consideration of the facts and circumstances of the case and point discussed above, we come to the conclusion that the prosecution has not been able to prove the charge leveled against the appellant. Since there was inherent illegality in the matter, the conviction cannot be upheld and finding in this regard is required to be set aside and the same is set aside and as a consequence whereof, the Appeal No. 1925 of 2014 is accepted and Mst. Phatain Bibi, the appellant is ordered to be acquitted of the charge in case FIR No. 28 of 2014, dated 01.02.2014, offence under Section 9(C) of the Control of Narcotic Substances Act, 1979, Police Station Muhammad Wala, District Chiniot. The appellant is on bail, therefore, her bail bonds stand discharged.
(A.A.K.) Appeal accepted
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