Khalil-Ur-Rehman, etc vs State etc

Raja Shahid Mehmood Abbasi, J.--This appeal is directed against the judgment dated 25.01.2018, passed by the learned Additional Sessions Judge/ Judge Special Court CNS, Rawalpindi, whereby , in case F.I.R. No. 223 dated 01.05.2015, registered at Police Station Naseer Abad, Rawalpindi, under Section 9(c) of the Control of Narcotic Substances Act, 1997, the learned trial Court convicted Khalil ur Rehrnan and Zeeshan Ahmed, appellants and sentenced them as under: Under Section 9(b) of the Control of Narco tic Substances Act, 1997 one year and nine months R.I. each with fine of Rs. 13,000/- each and in case of default of fine, to further undergo four months and 15 days S.I. each.

The benefit of Section 382-B, Cr .P.C. was also extended to the appellants.

2. Succinctly , the allegations leveled against the appellants as portrayed through complaint (Ex.PC) are that on 1.5.2015 at about 11:110 p.m., Tahir Ahmad, Rehan, SI (PW.3) along with other police contingent in connection search of drug paddlers, was present at Pirwadhai Morr near Ghausia Adda, on suspicion, intercepted a motorcycle. Upon search of accused Khalil ur Rehman charas garda numa weighing 1210 gram wrapped in polythene shopping bag from right fold of his Shalwar , whereas on search of Zeeshan Ahmad charas garda numa weighing 1240 gram from a white colour shopping bag carried by him was recovered 120/120 gram charas was separated from both the packets for the purpose of chemical analysis. Hence, the FIR.

3. The appellants were interrogated and challaned to face the trial. The charge was framed against the appellants on 17.06.2015, to which they pleaded not guilty and claimed trial. So, the prosecution was directed to produce its evidence. The prosecution produced five witnesses including Tahir Ahmad Rehan , SI/complainant (PW.3) and the recovery witness Kamran Abbas, Constable (PW.5) and after tendering in evidence report of the Punjab Forensic Science Agency , Lahore (Ex.PE) closed its evidence. The learned Additional Sessi ons Judge/ Judge Special Court CNSA, Rawalpindi, after recording the statements of the appellants under Section 342, Cr.P.C., and hearing the arguments, passed the impugned judgment, whereby , the appellants were convicted and sentenced as mentioned and detailed above.

4. Feeling aggrieved of the impugned judgment, the instant appeal has been preferred by the appellants.

5. Learned counsel for the appellants in support of this appeal contends that appellants have falsely been implicated in this case; that recovery shown to have been effected from the appe llants is not clear; that there are material contradictions in the prosecution evidence, which is sufficient to negate the prosecution case; that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, the appellants may be acquitted from the charge while setting aside the impugned judgment.

6. On the other hand, learned Deputy Prosecutor General has supported the impugned judgment of the learned trial Court by contending that the prosecution has proved its case against the appellant beyond the shadow of any doubt, therefore, the appellants were rightly convicted and sentenced by the learned trial Court; that the appellants could not establish any malafide on the part of the prosecution for their, false involvement in this case; that the prosecution witnesses stood the test of lengthy cross-examination but nothing favou rable to the appellants could be brought on the record; that in view of Section 29 of the Act ibid, the prosecution has successfully discharged the initial onus of proof and the appellants have failed to prove their innocence; that there is no substance in the present appeal, therefore, the same may be dismissed.

7. Heard. Record perused.

8. The prosecution in order to prove the guilt against the appellants has examined as many as five witnesses, out of which Tahir Ahmad Rehan, SI/Complainant (PW.3) and Kamran Abbas, Constable (PW.5) were the star witnesses of the prosecution case, who were directly related to the recovery proceedings. A glimpse of prosecution evidence transpired that both the above said star witnesses of instant case have deposed that they intercepted motorcycle of the appellants at Pirwadhai Morr and upon personal search of accused Khalil ur Rehman' charas garda numa weighing 1210 gram wrapped in polythene shopping bag from right fold of his Shalwar , whereas on search of Zeeshan Ahmad charas garda numa weighing 1240 gram from a white colour shopping bag carried by him was recovered. Out of both the packets, 120/120 gram charas was separated for the purpose of chemical analysis. However , the report of the Punjab Forensic Science Agency , Lahore (Ex.PE) reflects otherwise. From the above, it is apparent that two samples of 120/120 grams of charas were sent for chemical analysis, however , according to the report (Ex.PE), Item #01 is 86.1.6 grams of brown resinous mater ial and Item #02 is 88.17 grams of brown resinous material in sealed sample parcels contained Charas which quantity is entirely different from the samples so sent. Similarly , Tahir Ahmed Rehan, SI (PW.3) in his cross-examination admitted that "Both the recovered contrabands were in paira shape and in single piece each". Likewise, Kamran Abbas, Constable (PW.5) in his cross-examination admitted that "The alleged recovered contraband were in pairra shape in one single piece and was not the result of amalgamation of different littars, slabs or pieces." However , when the case property was de-sealed in the trial Court at the request of the learned defense counsel, the observation of the Court was that "The contraband present in the Court is in square slate shape". In the light of the above discussion, at present, it cannot be said with certainty that it is the same case property which was taken into possession in this case or it relates to some other case.

9. After perusal of the aforementioned deposition of the prosecution witnesses, we find that the prosecution has failed to prove the case against the appe llants beyond any shadow of doubt. In this case, the elements of doubts surrounding the prosecution case, as discussed in the preceding paragraphs, 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 of the substance so recovered was kept in safe custody intact or otherwise. Reliance in this regard is placed upon Amjad Ali vs. The State (2012 SCMR 577), Akhtar Iqabal vs. The State. (2015 SCMR 291) and Ikramullah vs. The State (2015 SCMR 1002 ). Even otherwise, the accused is not obliged to establish number of circumstances creating doubts but even a single circumstance, creating a reasonable doubt in the prudent mind is sufficient to extend the benefit of the same to the accused.

Guidance in this respect can be sought from "Muhammad Zaman versus The State and other? (2014 SCMR 749).

10. We have also observed that according to Section 29 of the Act ibid, initial onus rest on prosecution and when the prosecution discharged its liability , thereafter this onus shifts on accused to prove contrary but in the case in hand, the prosecution miserably failed to discharge its liability to bring home guilt to its hilt beyond shadow of any doubt.

11. In the light of above discussion, the instant appeal (Crl. Appeal No. 100 of 2018), is allowed, impugned judgment dated 25.01.2018, passed by the learned Additional Sessions Judge/Judge Special Court CNSA, Rawalpindi, is hereby set aside and the appellants are acquitted of the charge by extending them the benefit of doubt. The appellants are on bail, their sureties are discharged. The case property i.e. charas shall be destroyed in accordance with law , as observed by the learned trial Court, in the judgment impugned.