PLJ 2024 Cr.C. (Note) 184
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum and Raja Shahid Mehmood Abbasi, JJ.
versus
STATE and another--Respondents
Crl. A. Nos. 207 & 122-J of 2016, decided on 24.10.2017.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Recovery of heroin 1035 gms--Conviction and sentence--Challenge to--The prosecution has miserably failed to prove safe custody of case property/sample relating to allegedly recovered contraband from possession of appellant--In trial, prosecution was legally required to establish, by cogent evidence that alleged heroin weighing 1035 grams was seized from possession of accused and was kept in safe custody in Malkhana at police station and thereafter was sent to office of PFSA, Lahore but there is no explanation for its failure to establish safe custody of recovered contraband--In this way, contraband so deposited in office of PFSA, Lahore on 25-03-2015 could not be tagged with from seized substance from possession of appellant--There is, thus, no evidence to connect report of PFSA, Lahore with substance that was seized from possession of appellant--The prosecution has failed to prove case beyond reasonable doubt to sustain conviction--The prosecution has not been able to establish that after alleged recovery substance so recovered was either kept in safe custody or that samples taken from recovered substance had safely been transmitted to office of PFSA, Lahore without same being tampered with or replaced while in transit. [Para 8 & 9] A & B
2015 SCMR 1002.
Hafiz Khalil Ahmad, Advocate and Ch. Muhammad Naseer Kamboh, Defence Counsel for Appellant (in Crl. Appeal No. 122-J of 2016).
Mr. Nisar Ahmad Virk, DDPP for State
Date of hearing: 24.10.2017.
Judgment
Raja Shahid Mehmood Abbasi, J.--Through this single judgment, we intend to dispose of Crl. Appeal No. 207 of 2016 and Crl. Appeal No. 122-J of 2016 filed by the appellant-convict Irfan alias Fana, through which he assails the vires of judgment dated 16-01-2016, passed by the learned Additional Sessions Judge/Judge Special Court (Control of Narcotic Substances Act). Samundri, whereby he convicted the appellant under Section 9-C of The Control of Narcotic Substances Act, 1997 and sentenced him to six years R.I. with fine of Rs. 30,000/- and in default whereof he was further held liable to undergo six months S.I. The appellant was also granted benefit as contained in Section 382-B of The Criminal Procedure Code, 1898 in case FIR No. 150 dated 20-03-2015, u/S. 9-C of the Control of Narcotic Substances Act, 1997 registered at Police Station City Samundari, District Faisalabad.
2. Briefly, the facts of prosecution case are that on a tip off. received from informer by Talib Hussain SI, complainant (PW.4) that Irfan alias Fana a narcotic drug peddler was selling narcotic in front of his house situated at Christian Colony. Considering the said information a credible one, he alongwith other police officials proceeded to Christian Colony and on the pointation of informer, they apprehended the accused Irfan alias Fana. The aforementioned complainant made personal search of accused and got recovered a polythene bag containing heroin weighing 1035 grams (P1). Out of the recovered contraband one gram heroin was separated for the purpose of chemical analysis. Hence, the crime report.
3. After completion of investigation, the report under Section 173, Cr.P.C. was sent to the Court of Learned Additional Sessions Judge. Samundri and the appellant was sent up to face the trial, where charge was framed to which he pleaded not guilty and claimed trial.
4. Prosecution in order to prove its case examined four witnesses namely Azhar Munir 6001/HC (PW.1), Nazar Muhammad 2153/C (PW.2), Shabbir Ahmad 6759/C (PW.3) and Talib Hussain, SI (PW.4). The prosecution gave up Zulfiqar, constable, PW being unnecessary and after after tendering in evidence, report of Forensic Science Agency, Lahore (Ex.PE), closed its evidence.
5. After completion of evidence on behalf of the prosecution, the statement of appellant/accused was recorded under Section 342 of The Criminal Procedure Code, 1898. To question why this case against him and why the PW’s have deposed against him, he replied as under:
“It is a false care. Nothing was recovered PWs are police officials and despite availability of private witnesser from the place of recovery and raid nome was made to Join recovery proceedings.”
The appellant/accused neither opted to appear as his own witness u/S. 340(2), Cr.P.C. in disproof of the allegation leveled against him nor produce any defence evidence.
6. After completion of evidence from both the sides, the learned trial Court, after holding the appellant guilty of the offence, convicted her as mentioned in preceding paragraph No. 1 above.
7. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy District Public Prosecutor and have gone through the record with their able assistance.
8. According to the prosecution, Irfan alias Fana, appellant/accused was apprehended by raiding party and got recovered 1035 grams heroin from his possession wrapped in different shoppers. Consolidated sample of one grams of heroin was separated for its onward transmission to the office of Punjab Forensic Science Agency, Lahore and subsequently said agency had submitted a report (Ex.PE) maintaining that the sample so sent contained heroin. The prosecution in order to prove the guilt of the appellant and recovery of contraband heroin got examined four prosecution witnesses. We have straightaway observed that Azhar Munir, 6001/HC (PW.1), Nazar Muhammad 2153/C (PW.2) and Talib, SI (PW.4) were the star witnesses of the prosecution. Azhar Munir, 6001/HC (PW.1), during his examination in chief deposed that “... On 13-03-2015, Talib Hussain, SI/IO also handed over to me a sealed parcel said to contain heroin for onwards transmission to the office of Punjab Forensic Science Agency, Lahore which I handed over to Nazar Muhammad 2153/C on 14-03-2015 for onwards in the said office intact. Whereas Nazar Muhammad 2153/C (PW.2) during his examination-in-chief deposed that “.On 14-03-2015, I was posted in P.S. City Samundri. On the same day, Moharrar handed over to me a sealed parcel for onward transmission to the office of Punjab Forensic Science Agency, Lahore which I transmitted in the said office on the same day intact.” We have noted that Talib Hussain, SI (PW.4) was the complainant as well as Investigating Officer of the case and his entire testimony is silent about the fact that when and to whom the case property was handed for safe custody. On the other hand, Azhar Munir, 6001/HC (PW.1), Moharrer, Police Station City Samundari also deposed nothing about the fact that from where he received the case property. He simply stated that a sealed parcel said to contain heroin was received by him which he handed over to Nazar Muhammad 2153/C (PW.2) on 14-03-2015 for onward transmission to the office of chemical examiner. In this way, safe custody of recovered substance as well as safe transmission to the office of Chemical Examiner has not been established by the prosecution as required under the law. We have also noticed that according to Nazar Muhammad 2153/C (PW.2) on 25-03-2015 while he was posted at Police Station Samundari, Azhar Munir, Moharrar (PW.1) handed over to him a sealed parcel for onward transmission to the office of PFSA. Lahore but surprisingly according to PFSA, report (Ex.PE) said sample of one gram of suspected heroin was received in the said office on 25-03-2015. The entire prosecution evidence is silent on the fact that if the sample was handed over to Nazar Muhammad 2153/C (PW.2) on 14-03-2015 and the said parcel was deposited to the office of PFSA, Lahore on 14-03-2015 then where the case property remained from 14-03-2015 to 25-03-2015, this aspect of the case cast serious doubts in the story of the prosecution. In this way, the prosecution has miserably failed to prove safe custody of the case property/sample relating to allegedly recovered contraband from the possession of the appellant. In the trial, the prosecution was legally required to establish, by cogent evidence that the alleged heroin weighing 1035 grams was seized from the possession of the accused and was kept in safe custody in the Malkhana at police station and thereafter was sent to the office of PFSA, Lahore but there is no explanation for its failure to establish safe custody of recovered contraband. In this way, the contraband so deposited in the office of PFSA, Lahore on 25-03-2015 could not be tagged with from the seized substance from the possession of the appellant. There is, thus, no evidence to connect the report of PFSA, Lahore (Ex.PE) with the substance that was seized from the possession of the appellant Reliance is placed on Ikramullah and others vs. The State (2015 SCMR 1002).
9. The aforementioned elements of doubt surrounding the prosecution case have led us to hold that the prosecution has failed to prove the case beyond reasonable doubt to sustain the conviction. The prosecution has not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of PFSA, Lahore without the same being tampered with or replaced while in transit.
10. For what has been discussed above, we are inclined to hold that the prosecution evidence is highly deficient and the conviction recorded by the learned trial Court in the circumstances is not sustainable. We thus while allowing the Crl. Appeal No. 207 of 2016, set aside the judgment dated 16-01-2016 and acquit the appellant Irfan alias Fana from the charge against him. He is in jail. He be released forthwith if not required in any other case.
11. In view of above findings, Crl. Appeal No. 122-J of 2016 filed by the appellant/accused through jail is disposed of as stands redundant.
(A.A.K.) Appeal disposed of
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