The STATE through Prosecutor-General, Punjab vs MUHAMMAD AZEEM alias

ORDER

By means of instant appeal filed in terms of section 48 of the Control of Narcotic Substances Act, 1997 read with section 417 of Cr.P.C., the State through Prosecutor General Punjab, has challenged the acquittal of respondent-Muhammad Azeem alias Sohni recorded by the learned Additional Sessions Judge, Gujranwala vide judgment dated 28-2-2008 in case F.I.R. No,46/2007, dated 18-1- 2007, offence under Section 9(c) of the Control of Narcotic Substances At', 1997 registered at Police Station, Civil Lines, Gujranwala.

2. Succinctly, the facts narrated in, the crime report (Exh.PC) are that on 18-1-2007, on spy information, respondent-Muhammad Azeem alias Sohni was apprehended by the police party and Charas weighing 1250 grams was recovered from his possession, out of which, 10-grams Charas was separated for chemical examination while preparing recovery memo (Exh.PA).

3. On the basis of complaint (Exh.PB) of Aurangzeb Khan, Inspector Excise, the complainant (PW-5), FIR (Exh.PC) was chalked out by Javed Akhter, S.I. (PW-2). Thereafter the investigation was entrusted to Akbar Munir, S.I. (PW-6) who prepared the rough site plan of place of occurrence as Exh.PD, recorded the statements of prosecution' witnesses under section 161 of Cr.P.C. On reaching the police station, the Investigating Officer handed over case property to Akhter Raza, MIC (PW-3) for safe custody and for onward transmission to the quarter concerned.

4. Having found the accused (respondent) guilty, the investigating officer prepared report under section 173 of Cr.P.C. And sent the same to the court of competent jurisdiction along with report of Chemical Examiner as Exh.PE. The learned trial court, on 30-5-2001, formally charge-sheeted the accused (respondent) to which he pleaded not guilty and claimed trial.

5. The prosecution in support of the version, produced six (06) witnesses. Aurangzeb Khan Inspector Excise, (PW-5) is the complainant of the case whereas Muhammad Munir, S.I. And Muhammad Akram 1411/HC (PW-1) are the recovery witnesses. The investigation in this case was conducted by Akbar Munir, S.I., (PW-6). The statements of remaining prosecution witnesses are formal in nature.

6. Learned Deputy District Public Prosecutor has given up Muhammad Munir, S.I. Being unnecessary on 12-9-2007 and closed the prosecution evidence after tendering the report of Chemical Examiner as Exh.PE.

7. The accused (respondent) was also examined in terms of section 342 of Cr.P.C., wherein he opted not to appear as his own witness in disproof of the allegations levelled against him in the prosecution version, however, he opted to lead evidence in his defence. In response to the question why this case against him and why the PWs deposed against him, Muhammad Azeem alias Sohni accused (respondent) made the following deposition:-- "I have been involved in this false case due to local enmity with the influential persons of the locality, as one Naveed Shahzad son of Muhammad Sadiq had lodged false case FIR No,169 dated 9-3-2006 under sections 324, 148, 149, P.P.C. At Police Station Civil Lines in which I was detained at Muridkey due to police attrocities and fear of police and local police had got involved me in this case and my brother Usman as P.Os according to mark A. On 28-9-2006, through Akbar Munir S.I., but later on apprehending me this fake case was planted on one through fake proceedings to please my influential local enemies and all the PWs being police officials or Excise officials have deposed against me to strengthen the fake prosecution case. The said Naveed Shahzad also got me and my brother Usman in a false murder case from which I have been acquitted."

8. The accused-respondent, in documentary evidence has produced attested copy of judgment dated 29-3-2007 passed in F.I.R No,170 of 2006, under section 302/34, P.P.C. At Police Station, Civil Lines, Gujranwala as Exh.DB and copy of remand paper in case FIR No,169/2006, under sections 324, 148, 149, P.P.C. At Police Station, Civil Lines, Gujranwala as Mark-A and closed his evidence on 30-11- 2007.

9. The learned trial court after evaluating the evidence available on record and in the light of arguments advanced from both sides, found that the prosecution has miserably failed to prove the allegations levelled against the accused (respondent), resulting into acquittal of the accused person (respondent).

10. We have heard the arguments advanced by the learned Law Officer and perused the record minutely.

11. The learned counsel for the accused has fairly submitted that the only question involved in this appeal relates to re-appraisal of evidence. However, it is, indeed, trite to state that the burden of proof lies heavily on the shoulder of the prosecution. The prosecution has to cover a distance between "may be true" and "must be true". While discharging its burden of proof, the prosecution has to establish each single fact through cogent and convincing evidence. It has not been shown that the findings recorded by the trial court could not have been so recorded on the evidence on record. Even assuming that another view could be taken against the respondent in respect of the charge that cannot be a ground to set aside an order of acquittal in order to succeed, the State must show that the findings recorded by the trial Judge can effectively be dislodged and such findings are unwarranted.

12. The trial court has rightly taken note of material contradictions appearing in the evidence of the prosecution witnesses with regard to vital parts of the prosecution case. PW.1-Muhammad Akram 1411/HC during cross-examination deposed that "we reached at the place of occurrence at 4-15 p.m". Later PW-1 Muhammad Akram during cross-examination deposed that "we reached back to police station at about 4-15 p.m. On the said date of recovery." This creates doubt regarding time of alleged recovery of contraband. The place of recovery is situated at a distance of 1-1/2 K.M. From the police station and this fact is admitted by PW-1 in his cross-examination by deposing that "the place of recovery was situated in the eastern side of Shamsi Chowk at a distance of 1-1/2 K.M."

The PW-1 Muhammad Akram was a member of raiding party who allegedly conducted raid on receiving a spy information and alleged recovery of Charas weighing 1250 grams was recovered from the inside pocket of the jacket of accused-respondent. Whereas PW.1-Muhammad Akram deposed during cross-examination that "I cannot tell how the Excise Inspector separated 10 grams for sample as I did not witness the same. The Charas was in shape of Tither (slaps). I cannot tell the number of slaps."

13. From the above deposition of prosecution witness, it appears that recovery of alleged contraband Charas weighing 1250 grams did not stand prove by the prosecution. It is also noted that the samples of alleged contraband Charas did not remain intact in safe custody. PW-3 Akhter Raza, Moharrar Malkhana deposed that "on 23-2-2007 I handed over the sealed parcel along with docket handed over to Munir 1344/C for its onward transmission to the office of Chemical Examiner Punjab, Lahore" whereas as per Chemical Examiner Punjab's report Exh.PE, it reveals that case property was dispatched to the office of the Chemical Examiner Punjab, Lahore on 22-1-2007 and the same was received in the office of Chemical Examiner Punjab, Lahore on 23rd of February, 2007. The prosecution fails to give explanation that where the alleged samples remained for one month and one day. Therefore, a grave doubt does exist whether the narcotic contraband recovered and sealed, were kept in a safe custody or not. This creates doubt over the veracity and authenticity of the report of Chemical Examiner Punjab, Lahore (Exh.PE).

14. According to the trial court, the prosecution evidence was not worthy of credence. This view is reasonable and acceptable. Regard being had to the unsatisfactory nature of the evidence and contradictions in prosecution evidence, the trial court has correctly held that the charge had not been brought home to the respondent.

15. For the reasons aforesaid, instant appeal is without merits and same is dismissed.