TASAWAR HUSSAIN vs THE STATE
This criminal appeal was filed against the judgment of the Additional Sessions Judge, Khushab, convicting the appellant under Section 9(b) of the Control of Narcotic Substances Act 1997 and sentencing him to two years' rigorous imprisonment with a fine. The prosecution alleged that while in physical remand in another narcotics case, the appellant led the police to a khola in a cattle market and recovered 450 grams of charas buried in the earth. The core issue before the High Court was whether the prosecution had established its case beyond reasonable doubt in light of the dubious place of recovery, non-association of independent witnesses, and discrepancies regarding the transmission of samples to the Chemical Examiner. The High Court observed that the alleged concealment in an open cattle market was unnatural, the police had ample time to associate independent witnesses, and there was an unclarified discrepancy concerning the dispatch and delivery dates of the sample parcel. Consequently, extending the benefit of doubt, the Court accepted the appeal, set aside the conviction, and acquitted the appellant.
- Whether an alleged recovery of narcotics from a publicly accessible area such as a cattle market khola creates reasonable doubt if not supported by independent witnesses?
- Does an unexplained contradiction between the date of dispatch stated by the carrier and the date recorded in the Chemical Examiner's report invalidate the prosecution's case?
- Whether failure by the investigating officer to associate independent witnesses under Section 103 of the Code of Criminal Procedure 1898 during a planned recovery affects the credibility of police witnesses?
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 103, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,1364 of 2004 filed by Tasawar Hussain, appellant who was convicted under section 9(b) of the Control of Narcotic Substances Act, 1997 and sentenced to undergo R.I. For two years and to pay a fine of Rs,20,000, in default three months' S.I. The conviction and sentence was recorded by learned Additional Sessions Judge, Khushab vide judgment, dated 20-7-2004.
2. Brief facts of the case as disclosed in the F.I.R. Are that on 25-11-2003 Tasawar Hussain accused while on physical remand in case F.I.R. No, 57, dated 2-4-2004 under section 9 (c) of Act, 1997, got recovered 450 grams of charas after digging over the earth from a khola in cattle market.
3. After completion of investigation, the accused was sent to face the trial where the prosecution produced five witnesses in all. Report of the Chemical Examiner is Exh.P.C. The accused in his statement under section 342, Cr.P.C. Pleaded false implication. After conclusion of the trial, the accused was convicted and sentenced as stated above.
4. Learned counsel for the appellant submits that the appellant has been falsely implicated in this case; that the alleged recovery of the narcotics on the pointation of the appellant from a khola in the cattle market is doubtful; there are material contradictions in the statements of witnesses so far as sending of the parcel to the office of the Chemical Examiner is concerned; all the witnesses are Police officials; no witness from the public was associated with the recovery proceedings though sufficient time was available with the Police to associate public witness so there is clear violation of section 103, Cr.P .C.
' It is also submitted that the appellant was acquitted in case F.I.R. No,57, dated 2-4-2004 under section 9(c) of the Act, 1997 and according to him, it is also a ground for acquittal of the appellant in the instant case.
' According to learned counsel, the prosecution case if viewed in the light of submissions made above is of highly doubtful nature and the appellant is entitled to acquittal.
5. Mr. Naseen ud Din Nayyar, learned Additional Prosecutor General submits that it was the appellant who himself got recovered the charas weighing 450 grams; the Police officials are as good witnesses as public witnesses; they had no malice against the appellants and that already a very lenient view has been taken by the trial Court.
6. The appellant was arrested on 4-4-2004 though he was already in Police custody in case F.I.R.
No,57, dated 2-4-2004 registered with the same Police Station where the case in hand was registered. According to case of the prosecution, during the course of interrogation of case F.I.R.
No,57 it was the appellant who led the Police to cattle market, from where by digging the earth in a Khola in the cattle market, he got recovered the charas weighing 450 grams. We have very serious doubts in our mind about the place from where the appellant allegedly got recovered the charas.
Had the accused any intention to conceal the charas, he must, have concealed the same in his house or some secret place.
' The appellant while in custody in another case disclosed that he had concealed the charas in a khola in cattle market, so there was ample time with the Investigator to join the public witnesses at the time of recovery proceedings.
' Muhammad Sarwar FC while appearing as P.W.3 deposed that on 10-4-2004 Muhammad Iqbal, Moharrar gave him sample parcel for onward transmission to the office of the Chemical Examiner, Rawalpindi which he delivered in the concerned office on the same day intact whereas according to report of the Chemical Examiner Exh.PC, the Chemical Examiner gave a certificate that he had received the parcel by hand from Muhammad Sarwar FC dispatched on 9-4-2004.
' The way and the place from where the prosecution recovered the charas on the pointation of the appellant and the difference of date in the statement of Muhammad Sarwar FC P.W.3 and the certificate given by the Chemical Examiner in the report Exh.PC, as explained in the preceding paragraph, have led to the irresistible conclusion that case against the appellant is of doubtful nature, so while extending the benefit of doubt, appeal is accepted, the impugned judgment of the trial Court is set aside and the appellant is acquitted of the charge.
' The appellant is on bail. He shall stand discharged from his bail bonds.