DILDAR IIUSSAIN vs THE STATE

' SARDAR MUHAMMAD ASLAM, .--- Appellant Dildar Hussain was tried by the learned Additional Sessions Judge, Sargodha under section 9(c) of the Control of Narcotic Substances Act, 1997 in case F.I.R. No,65, dated 26-4-2004 registered with Police Station, Factory Area, Sargodha for having in his possession 1011 grams heroin and an amount of Rs,100. The learned trial Court vide its judgment, dated 13-5-2005 convicted and sentenced him to seven years rigorous imprisonment with fine of Rs,20,000 and in default thereof to undergo six months simple imprisonment. He was also extended the benefit of, section 382-B, Cr.P.C.

3. (sic) Briefly the prosecution case as per F.I.R. Is that on 26-42004 at about 12-30 p.m.

Complainant Muhammad Rafaqat (P.W.5) along with the police officials/P.Ws. Was present at Khushab Road, when he received a spy information that one Dildar Hussain is in possession of sufficient heroin and he is going towards the Dera Sam Jamal Sulemanpura. The accused was arrested on the pointation of the informer having shopping bag in his right hand and an amount of Rs,100. Heroin weighing 1011 grams was recovered from the shopping bag, out of the same two grams was separated for chemical analysis. I.D. Card of the accused was also taken into possession.

4. Formal charge was framed on 12-4-2004, which was denied by the appellant. The prosecution produced five witnesses in all and also tendered in evidence the documentary evidence.

5. The appellant was examined under section 342, Cr.P.C. However, did not opt to make statement on oath as provided under section 340(2), Cr.P.C.

6. The learned trial Judge believing the prosecution evidence convicted and sentenced the appellant as aforementioned.

7. Learned counsel for the appellant argued that the impugned judgment is against the law and facts, therefore, is not sustainable in the eyes of law; that there are material contradictions in the statements of the P.Ws. And that the impugned judgment is based on misreading and non- reading of evidence which is liable to be set aside.

8. On the other hand, learned counsel for the State opposed the instant appeal.

9. We have heard the learned counsel for the parties and perused the record.

10. The time of occurrence in F.I.R./Exh.P.C. Is recorded at 12-30 day time and the report was made at 12-55 day time. The complaint sent for registration of case has disclosed the time as 12-30 day time. Recovery was witnessed by P.W.2 and P.W.5. Both the P.Ws. Have not indicated the time when raid was conducted and recovery effected. The statement of P. W.2 was recorded on 16-12-2004.

11. P.W.4, Azhar Hussain is the Investigation Officer. He in his cross-examination admitted his presence at the time of raid. He stated that he left the police station at 12-00 p.m. The charge- sheet contains the time of occurrence as 12-00 p.m. Impugned judgment, too, mention same time of occurrence. The evidence of prosecution is not trustworthy. The time of occurrence is not discernible with exactitude from the record. It demolishes the very foundation of prosecution case.

The crime B property i,e, Narcotics was produced and exhibited as P.2 while it was not produced when statement of P. W.5 was recorded in the Court. The report under section 173, Cr.P.C. Reflects that the appellant was apprehended on the day of incident at 12-30 p.m. Night time! We entertain serious doubts in accepting the prosecution case.

12. For what has been discussed above, this appeal is allowed, impugned judgment is set aside and the appellant is acquitted of the charge. He be released forthwith, if not required in any other case.