PLJ 2023 Cr.C. (Note) 141
[Lahore High Court, Multan Bench]
Present: Shakil Ahmad and Muhammad Amjad Rafiq, JJ.
Mst. SHABANA BIBI--Appellant
versus
STATE and another--Respondents
Crl. A. No. 554 of 2022, heard on 21.11.2022.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9-C--Affixation of seal ‘S.S’--Signatures of constable--Acquittal of--Personal search was conducted and in a bag that she was containing in her left hand, two packets of charas were recovered and on weighing, each packet came to 1100 grams. 55 grams charas was separated from each packet for sample--Recovery memo. attested by two police constables--Names of witnesses are also written with the same pen--Their signatures in urdu are also shown to have been made thereon--Name of one constable is not written on the recovery memo. along with her place of posting and only her signatures are shown to have been taken through a different pen--It transpires that signatures of said constable has been taken subsequently and same were not in fact taken while preparing recovery memo--PW-4 in his examination-in-chief stated to have affixed seal ‘S.S’ on all the four sealed parcels--PW-7 / S.I stated to have received four parcels in all--He did not state in his examination-in-chief that seal of S.S was affixed on all the four sealed parcels--None of the PWs deposed about the presence of seal namely SS on the sealed parcels--Prosecution failed to establish the chain of safe custody of sample parcels--Even a single reasonable doubt in the prosecution case is sufficient to acquit the accused not as a matter of grace but as matter of right--Harder the sentence is, stricter the standard of proof should be--Appellant is acquitted.
[Para 2, 9, 12, 13 & 14] A, B, C, D, E, F, G
2022 SCMR 1627; 2018 SCMR 2039; 2020 SCMR 687;
PLD 2012 SC 380; 2009 SCMR 230; 1995 SCMR 1345 ref.
Syed Imran Abbas Kazmi, Advocate for Appellant.
Mr. Shahid Aleem, Additional Prosecutor General for State.
Date of hearing: 21.11.2022.
Judgment
Shakil Ahmad, J.--Mst. Shabana Bibi (appellant herein) after having been tried by the learned Additional Sessions Judge, Lodhran in case FIR No. 44 of 2022 dated 10.01.2022 for the offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 (“CNSA, 1997”) registered at Police Station City, Lodhran, was convicted under Section 9(c) of the CNSA, 1997 and sentenced vide judgment dated 01.06.2022 (impugned judgment) as under:
To undergo simple imprisonment for 3½ years along with fine of Rs. 10,000/-or in default, to further undergo simple imprisonment for three months. Benefit of Section 382-B of, Cr.P.C. was also extended in favour of the convict/appellant.
2. Muhammad Shoaib Saeed TASI (PW-1) reported the matter to Station House Officer, Police Stat on City, Lodhran through written Complaint Ex.PB drafted on 10.01.2022 at 07:30 A.M, by stating therein that he along with Abdul Maalik 372/C, Zawar Hussain 1031/C, Shaukat 705/C, Farhana Aslam 1085/LC was present at thana Balochan Phatak in connection with patrolling duty when spy information was received that a woman named Shabana having huge quantity of charas was present at Lataska Hotel Morr at Super Chowk Kehror Pacca and she could be apprehended and charas could be recovered if raid was conducted. Thereupon, by constituting raiding party, complainant reached Super Chowk Kehror Pacca and on pointing out of spy, apprehended a woman, who disclosed her name as Shabana widow of Muhammad Babar (appellant), whose personal search was conducted through Farhana Aslam 1085/LC and in a bag that she was containing in her left hand, two packets of charas were recovered and on weighing, each packet came to 1100 grams. 55 grams charas was separated from each packet for sample and made the same as well as remaining charas into separate parcels. Recovery memo. was prepared whereupon signatures of witnesses were obtained. Complainant drafted complaint Ex.PB and sent the same to police station through Shaukat 705/C (PW-4) on which, formal FIR Ex.PD was registered by Qaisar Ameer 83/HC (PW-5).
3. Muhammad Irfan (PW-7) having received police file for investigation, proceeded to the place of recovery. According to PW-7, Muhammad Shoaib Saeed TASI handed over to him four parcels, two sample parcels and two parcels of remaining case property as well as custody of accused. He claimed to have inspected the place of recovery and prepared rough site plan (Ex.PE); recorded statements of PWs under Section 161 of Cr.P.C; formally arrested the accused, recorded her first version, returned to police station, confined her to the police lock up and handed over the parcels of case property and sample parcels to Moharrir and on 10.01.2022 sent the accused to judicial lock up. According to PW-5, on 12.01.2022 Moharrir Qaisar Ameer 83/HC handed over to him two sample parcels for onward transmission and he deposited the same in the office of Punjab Forensic Science Agency, Lahore on the same day.
4. Report under Section 173 of, Cr.P.C. was prepared by SHO and sent to the Court. Appellant was formally indicted on 17.03.2022. She pleaded not ginilty and the trial commenced.
5. In order to prove its case, the prosecution examined as many as eight witnesses whereas Abdul Maalik 372/C was given up being unnecessary and learned ADPP, by placing on record report of PFSA Ex.PC and certain other documents as Ex.PF to Ex.PJ, closed the prosecution evidence on 30.05.2022.
6. Statement of the appellant was recorded under Section 342 of Cr.P.C. She mainly pleaded her innocence and in reply to the question that why case was registered against her and why the PWs deposed against her, appellant took the following stance:
“The recovery is fake and planted one. Nothing was recovered from me. No independent/private person of the locality supported the version of the complainant. In order to show his performance, complainant lodged this false case against me a ad planted fake recovery against me”
Appellant neither opted to appear in the witness box in disproof of the allegations under Section 340(2) of Cr.P.C, nor produced defence evidence.
7. Learned trial Court on conclusion of trial, convicted and sentenced the appellant in terms as hinted in the opening paragraph of this judgment, hence this appeal.
8. Heard. Record perused.
9. Having scanned the whole evidence produced at trial by the prosecution to prove its case, with the able assistance of learned counsel for the appellant and learned APG, we are constrained to observe at the outset that there exist material inconsistencies and discrepancies in prosecution’s evidence qua initial and basic version of prosecution case besides some fundamental flaws in handling and safe custody of sample parcels which create serious doubts. As per F.I.R, the police contingent comprising of Muhammad Shoaib Saeed TASI (PW-1) along with Abdul Maalik 372/C, Zawar Hussain 1031/C (PW-3), Shiukat 705/C (PW-4), Farhana Aslam 1085 LC (PW-2) and Muhammad Nadir 378/C, driver of the official vehicle after conducting raid following a tip off, apprehended the appellant and upon her personal search that was carried out by lady constable Farhana Aslam, recovered two packets of charas weighing 1100 grams each from a bag carried by the appellant in her left hand. As per narration of events in the complaint Ex.P-B as well examination in chief of Muhammad Shoaib Saeed TASI PW-1, after recovery of charas from the accused, 55 grams charas was separated from each packet and two sample parcels were prepared, thereafter two sample parcels and two parcels of remaining charas were taken into possession by the complainant through recovery memo. (Ex.PA) whereafter complaint was drafted and sent to Police Station. In this way, the first document shown to have been prepared by the police in this case, at the place of recovery, is the recovery memo. Ex.PA, attested by Abdul Maalik 372/C, Zawar Hussain 1031/C and Farhana Aslam 1085/LC. The whole writing of the recovery memo. Ex.PA is with a blue ball point pen. Names of witnesses Abdul Maalik 372/C and Zawar Hussain 1031/C are also written with the same pen along with place cf their posting i.e. Police Station City, Lodhran and their signatures in urdu are also shown to have been made thereon. However, name of Farhana Aslam 1085/LC is not written on the recovery memo. Ex.PA along with her place of posting and only her signatures are shown to have been taken through a different pen i.e gel pen. From bare perusal of Exh.PA, it transpires that signatures of Farhana Aslam Exh.PA/2 has been taken subsequently and same were not in fact taken while preparing Exh.PA, leading to unference that name of Farhana Aslam 1085/LC initially was not written on the recovery memo. at the time of its preparation and her signatures were obtained on this document subsequently. Muhammad Shoaib Saeed TASI PW-1 during the course of his cross examination admitted it correct that name of Farhana Aslam is wriiten with different pen. However, he made an attempt to explain the said position by volunteering that Farhana Aslam signed with her own pen but the fact remains that name of Farhana Aslam was not written on the recovery memo. in the way names of other witnesses Abdul Maalik 372/C and Zawar Hussain 1031/C were written on said document and that position was admitted by PW.1 in his cross examination. Had Farhana Aslam 1085/LC made signatures on Ex.PA with her own pen at the place of recovery, her name as well as place of posting should have been written by the complainant/author of Ex.PA with the same pen with which names of other two witnesses were written. Relevant to note here is that Farhana Aslam 1085/LC appeared as PW-2 and in her cross examination admitted it correct that in her statement recorded under Section 161, Cr.P.C. she did not mention that she signed the recovery memo. Ex.PA.
10. It may also be seen that investigation of this case was conducted by Muhammad Irfan SI who after inspecting the place of recovery, stated to have prepared site-plan Ex.PE. Point No. 2 shown in the site plan Ex.PE is the place where witnesses Abdul Maalik 372/C and Zawar Hussain 1031/C were present at the time of recovery of charas. Name of Farhana Aslam 1085/LC on the document Ex.PE too, appears to have been inserted subsequently with a different pen on the margin of the paper by making an abortive attempt to adjust said name in the narration of writing of point No. 2 so as to show her presence during the alleged recovery proceedings.
11. In his examination-in-chief, Muhammad Irfan SI PW-7 who is the investigator of this case, stated that he formally arrested the accused lady, recorded her first version, returned to police station, confined the accused in police lock up and handed over the case property and samples of charas to the Moharrir concerned for safe custody. During the course of his cross examination, PW-7 stated that after completion of whole proceedings at the place of recovery, he came back to police station and also written rapat No. 05/02 and he entered no other rapat in this regard. A copy of rapat No. 05/02 dated 10.01.2022 shown to have been incorporated at 09:00 A.M. by Muhammad Irfan SI is available on the record as Ex.PF/1, according to which after investigation of this case Muhammad Irfan SI returned to Police Station after formally arresting accused Shabana and after her personal search, she was confined in police lock up. Quite surprisingly, there is no mentioning in the said rapat as to the conducting of personal search of accused through a lady constable. Likewise, there is no mentioning in the said rapat as to handing over of any parcel of charas to Moharrir by Muhamamd Irfan SI. Similarly, Qaisar Ameer 83/HC Moharrir PW-5 in his cross examination stated that he did not get incorporated any rapat qua receipt of case property from Muhammad Irfan SI. In this backdrop, the fact of handing over of sample parcels of that of case property in this case by Muhammad Irfan SI to Moharrir PW-5 is nowhere mentioned in the daily diary register of police station and the said fact only finds mention in the statement of Moharrir but quite astonishing to observe here is that Moharrir PW-5 in the course of his cross examination admitted it correct that in his statement under Section 161, Cr.P.C. he did not get recorded specifically the number of parcels received by him, rather he stated to have received the case property. Prosecution version, as per the complaint, was that two sample sealed parcels were made at the spot in addition to two sealed parcels of remaining recovered charas, however, taking the examination in chief of Moharrir PW-5 as a whole, number of parcels shown to have been received by him from the Investigating officer comes to more than four parcels presumably eight in number inasmuch as he stated that Muhammad Irfan SI handed over to him four sealed parcels of charas and their samples for keeping into safe custody. Relevant excerpt of the statement of PW-5 is reproduced hereunder for the facility of ready reference:
“On the same day, Muhammad Irfan SI handed over to me four sealed parcels of charas and their samples for keeping into safe custody and their further transmission which I kept in maal khana for safe custody.”
12. According of Muhammad Shoaib Saeed TASI (PW-1), two packets containing Charas were recovered from the appellant and he separated 55-grams Charas from each packet and made them into sealed parcels. PW-4 in his examination-in-chief stated to have affixed seal ‘S.S’ on all the four sealed parcels. According to him, he handed over two sealed sample parcels and remaining parcels to Muhammad Irfan S.I. PW-7 Muhammad Irfan S.I stated to have received four parcels in all. He did not state in his examination-in-chief that seal of S.S was affixed on all the four sealed parcels. He further deposed that all the sealed parcels were handed over to Moharrar Qaisar Ameer 83/HC. Qaisar Ameer 83/HC Moharrar while appearing as PW-5, in his examination-in-chief said to have received total four sealed parcels of charas and their samples from Muhammad Irfan SI, out of which two sealed parcels containing 55/55 grams each were handed over to Muhammad Irfan SI on 12.01.2022. From the above, it clearly transpires that except PW-1 none of the PWs deposed about the presence of seal namely SS on the sealed parcels particularly on the sample sealed parcels. We have also seen the contents of report of PFSA Ex.PC, according to which two sample parcels were received in the lab on 12.01.2022 but there is also no mentioning of presence of seal SS on any of the sealed parcels that were received at PFSA. From the whole prosecution evidence it cannot be established that sample parcels said to have been prepared at the spot were in fact the parcels which were transmitted, received and examined by PFSA authorities. In the face of these inherent flaws in handling of sample sealed parcels and also parcels of remaining case property, serious doubt qua the safe transmission of the sample parcels to the PFSA as well as safe custody of the case property has been created and in consequence whereof recovery of narcotics substance and even positive report of Forensic Science Laboratory would become of less value and conviction based on such report can hardly be maintained. It is by now an established principle of law that where prosecution fails to establish safe custody of sample parcels that commences with the moment when the narcotics substance is recovered, till its’ dispatch to the concerned laboratory, it is considered unsafe to convict an accused on the basis of report of PFSA. In the instant matter, prosecution failed to establish the chain of safe custody of sample parcels, therefore, positive report of PFSA would be insufficient to be made basis for conviction of the appellant. Reliance in this regard may safely be placed on case titled “The State through Regional Director ANF vs. Imam Bakhsh and others” (2018 SCMR 2039). It is pertinent to mention here that the damage caused to the prosecution case by not proving the safe custody of the recovered substance at police station, as hinted in the preceding paragraph, could not be repaired and benefit of same would also go to the appellant. Reliance in this regard may be placed on case “Haji Nawaz v. The State” (2020 SCMR 68”), wherein it was held as under:
“Apart from that we have further observed that no evidence worth its name had been produced by the prosecution before the trial Court establishing safe custody of the recovered substance at the local Police Station or safe transmission of the samples of the recovered substance form the Police Station to the office of the Chemical Examiner. This Court has already held in the case of Amjad Ali v. The State (2012 SCMR 577) and Ikramullah and others v. The State (2015 SCMR 1002) that in the absence of any proof regarding safe custody or safe transmission of the recovered substance or the samples thereof a conviction cannot be recorded in a case of this nature “
13. Another defect in the prosecution case which has been noticed by us is that according to the prosecution’s case, charas was placed in a bag that the accused was carrying in her left hand, however, no description as to colour or make of bag was mentioned and the bag neither was shown to have been taken into possession nor the same was produced at trial, further creating doubt in the prosecution story. It is an established principle of law that even a single reasonable doubt in the prosecution case is sufficient to acquit the accused not as a matter of grace but as matter of right. Reliance in this regard may safely be placed on case reported as “Akhtar Gul vs The State” (2022 SCMR 1627) whereas in the instant case, statements of prosecution witnesses when are seen in their entirety, same neither are coherent nor confidence inspiring and in consequence whereof cannot be made basis for conviction of the appellant.
14. Since provisions of CNSA, 1997 provide severe punishments, proving of the case up to hilt, in such cases has been emphasized by the august Supreme Court of Pakistan in case “Ameer Zeb v. The State” (PLD 2012 SC 380), wherein it was observed that harder the sentence is, stricter the standard of proof should be. Assessing the present case on the touchstone of the dicta laid down in Ameer Zeb’s case, we are constrained to observe that prosecution failed to prove its case beyond the shadow of a reasonable doubt. It is by now a settled principle of law that prosecution primarily is bound to establish the guilt of accused beyond the shadow of a reasonable doubt by producing trustworthy, convincing and reliable evidence and even a single doubt in the prosecution story is fatal rather disastrous for the prosecution case and benefit of the same would go to the accused being favourite child of law who is to be treated as innocent unless his guilt is proved up to the hilt. Reliance in the respect may safely be placed on case “Muhammad Akram v. The State” (2009 SCMR230). In case “Tariq Pervaz v. The State” (1995 SCMR 1345) while elaborating the principle of benefit of doubt, august Supreme Court observed as under:
“It is well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicial mind is sufficient for acquittal of the accused”.
15. The upshot of the above discussion is that findings of conviction recorded against appellant by learned Additional Sessions Judge, Lodhran in the impugned judgment dated 01.06.2022 are not sustainable, which are hereby set aside by allowing instant Criminal Appeal No. 554 of 2022. Consequently, appellant Shabana Bibi is acquitted of the charge by extending benefit of doubt to her. Appellant is in jail. She is ordered to be released forthwith, if not required/detained in any other case. Case property shall be dealt with in accordance with taw.
(A.A.K.) Appeal accepted
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