PLJ 2025 Cr.C. 106 (DB)
[Lahore High Court, Rawalpindi Bench]
Present: Sadaqat Ali Khan and Ch. Abdul Aziz, JJ.
MUHAMMAD SARFRAZ alias AOLIA--Appellant
versus
STATE--Respondent
Crl. A. No. 965 of 2023, heard on 2.4.2024.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(1)3(c)--
Recovery of charas--Conviction and sentence--Challenge to--Benefit of doubt--In order to prove recovery proceedings prosecution banked upon statements of two recovery witnesses--Before dilating upon intrinsic worth of two PWs, it cases arising out of CNS Act, 1997 had limited scope for defence keeping in view stringent provisions--Through necessary implication of Section 25 of CNS Act, 1997 recovery proceedings attained acceptance even if not conducted in adherence to Section 103, Cr.P.C--False implication of an accused due to some personal grudge is difficult to prove and inexorably is hard nut to crack for prosecution--Discrepancies which give a reasonable clue about absence of witnesses from spot were to be given effect and benefit arising out of it ought to be extended to accused facing trial--During examination-in-chief same stance which was laid down in FIR, did not describe about particular of person who was driving private vehicle on day of recovery--According to contents of F.I.R. digital scale was used for weighing recovered narcotics and sample parcel--According to PW.1 he separated 55 grams from recovered narcotic substance, however perusal of PFSA report showed that net weight of sample sent for chemical analysis was 53.65 grams--Stance taken by prosecution stand negated from PFSA report--According to prosecution case Charas was recovered from white coloured polythene bag wrapped in insultation tape but perusal of recovery memo. showed that said polythene bag and insulation tape were not taken into possession by complainant--The anomalies were sufficient to create serious doubts qua veracity of prosecution case--Appeal was allowed. [Pp. 108 & 109] A & B
Mr. Saad Waqas, Advocate for Appellant.
Mr. Naveed Ahmad Warraich, Deputy District Public Prosecutor for State.
Date of hearing: 2.4.2024.
Judgment
Ch. Abdul Aziz, J.--Muhammad Sarfraz alias Aolia (appellant) involved in case F.I.R No. 280/2023 dated 19.06.2023 registered under Section 9(1)3c of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as CNS Act, 1997) at Police Station Pindigheb, was tried by learned Additional Sessions Judge, Pindigheb, who vide judgment dated 23.10.2023 convicted and sentenced him as under:
Under Section 9(1)3c of CNS Act, 1997 to suffer rigorous imprisonment for 09-years along with fine of Rs. 80,000/- and in default whereof to further undergo 02-months S.I. Benefit of Section 382-B, Cr.P.C. was, however, extended to the appellant.
Challenging his conviction and sentence, the appellant filed the instant criminal appeal.
2. Precisely stated the facts of the prosecution case as unfolded by Sajid Habib SI (PW.1) in F.I.R (Exh.PD) are that on 19.06.2023 he along with Sajid Mehmood 1423/C, Samar Zaman 1369/C and Muhammad Ramzan 129/HC was present at Banora Chowk Pindigheb in a private vehicle for the purpose patrolling and search of drug dealers; that in the meantime he received spy information regarding the presence of Muhammad Sarfraz alias Aolia at cattle Market Pindigheb in a veranda waiting for his specific customers so as to sell the narcotics and if raided he could be arrested; that after the receipt of this information, the police party under the supervision of Sajid Habib SI reached the afore-said place at about 2:10 p.m. where a person on seeing the police party tried to slip away who was apprehended at a distance of 5/6 paces; that the person so nabbed disclosed his name as Muhammad Sarfraz (appellant) and from the blue coloured shopping bag in his right hand Charas weighing 1100 grams wrapped in yellow coloured insultation tape was recovered, out of which 55 grams were separated for chemical analysis. Thereafter, he drafted complaint (Exh.PC) and sent it to the police station through Sajid Mehmood 1423/C for the registration of formal F.I.R.
3. The matter after investigation was placed before the trial Court where prosecution in order to prove its case against the appellant produced 05-witnesses, namely, Sajid Habib SI (PW.1) and Sajid Mehmood 1423/C (PW.3) are the witnesses of recovery, Zia Mehmood Butt SI (PW.2) after the receipt of complaint got registered F.I.R (Exh.PD) through front desk official, Muhammad Ishfaq 1841/HC (PW.4) was performing his duties as Moharrar/Station clerk at the relevant time and Muhammad Anwar SI (PW.5) investigated the case. After the conclusion of prosecution evidence, the learned trial Court also examined the appellant under Section 342, Cr.P.C. during which he was asked the questions arising out of the prosecution evidence but he denied almost all such questions while pleading his innocence and false involvement in the case. Appellant neither opted to make statement under Section 340(2) of, Cr.P.C. nor produced any evidence in his defence. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence, the instant criminal appeal.
4. Arguments heard. Record perused.
5. It is discernible from the review of record that on 19.06.2023 Sajid Habib SI (PW.1) while being present along with other officials at Banora Chowk Pindigheb received spy information about the presence of Muhammad Sarfraz alias Aolia at cattle Market Pindigheb awaiting the customers for selling narcotics. Upon the receipt of such information, the raiding party under the supervision of Sajid Habib SI reached the afore-said place and apprehended Muhammad Sarfraz alias Aolia (appellant). From a blue coloured shopping bag which the appellant was holding in his right hand, Charas weighing 1100 grams was recovered, out of which 55 grams were separated for chemical analysis.
6. It is noticed that in order to prove the recovery proceedings the prosecution banked upon the statements of two recovery witnesses, namely Sajid Habib SI (PW.1) and Sajid Mehmood 1423/C (PW.3). Before dilating upon the intrinsic worth of the afore-mentioned two PWs, it is considered appropriate to mention here that the cases arising out of CNS Act, 1997 have limited scope for defence keeping in view the stringent provisions. Through necessary implication of Section 25 of CNS Act, 1997 the recovery proceedings attain acceptance even if not conducted in adherence to Section 103, Cr.P.C. Likewise, the false implication of an accused due to some personal grudge is difficult to prove and inexorably is hard nut to crack for the prosecution. In the given circumstances, the discrepancies which give a reasonable clue about the absence of witnesses from the spot are to be given effect and benefit arising out of it ought to be
extended to accused facing trial. In the same stretch, Sajid Habib SI (PW.1) and Sajid Mehmood 1423/C (PW.3) though reiterated during the examination-in-chief the same stance which is laid down in the FIR, however did not describe about the particular of the person who was driving the private vehicle on the day of recovery. Similarly, according to the contents of F.I.R (Exh.PD) digital scale was used for weighing the recovered narcotics and sample parcel. According to Sajid Habib SI (PW.1) he separated 55 grams from the recovered narcotic substance, however the perusal of PFSA report (Exh.PF) shows that the net weight of sample sent for chemical analysis was 53.65 grams. Therefore, the stance so taken by the prosecution stands negated from the PFSA report (Exh.PF). Likewise, we have observed that according to the prosecution case the Charas was recovered from the white coloured polythene bag wrapped in insultation tape but perusal of recovery memo. (Exh.PA) shows that the said polythene bag and insulation tape were not taken into possession by the complainant-police officer. The anomalies mentioned hereinabove are sufficient to create serious doubts qua the veracity of the prosecution case.
7. In the light of above discussion, we allow the instant criminal appeal while extending benefit of doubt in favour of Muhammad Sarfraz alias Aolia (appellant), set aside his conviction and sentence and acquit him of the charge. The appellant is under custody. He shall be released forthwith if not required to be detained in any other criminal case.
(A.A.K.) Appeal allowed
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