GHULAM ABBAS Versus State

ASIF SAEED KHAN KHOSA, J.--- Ghulam Abbas appellant was convicted for an offence under section 9(b) of the Control of Narcotic Substances Act, 1997 vide judgment, dated 20-6-2005 rendered by the learned Additional Sessions Judge/Special Judge (Control of Narcotic Substances), Mianwali and was sentenced to rigorous imprisonment for two years and a fine of Rs.20,000 or in default of payment thereof to undergo simple imprisonment for three months. The benefit under section 382-B, Cr.P.C. was extended to the appellant. Through the same judgment the learned trial Court had acquitted the appellant's co-accused namely Muhammad Zaman and Muhammad Zubair, Ghulam Abbas appellant has challenged , his conviction and sentence before this Court through Criminal Appeal No.1076 of 2005. On 30-6-2005 this Court had issued a suo motu notice to Ghulam Abbas appellant to show as to why, in case of dismissal of his appeal by this Court, he may not be convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and be sentenced accordingly. The office has registered that notice as Criminal Revision No.548 of 2005. We propose to decide both these matters together through the present consolidated judgment.

2. According to the prosecution's case unfolded in the F.I.R. upon receipt of a secret information a party consisting of many Police Officers belonging to Police Station Sadar, Mianwali conducted a raid at the house of Ghulam Abbas appellant situated within Village Dhatoo Kheilanwali Dakhli, Ahmad Khan Wala at about 7-45 p.m. on 7-12-2003 and recovered Charas weighing 1010 grams from that house at the instance of the appellant after arresting him from outside that house. On the basis of that raid and recovery formal F.I.R. No.322 was subsequently registered at Police Station Sadar, Mianwali at 9-00 p.m. on 7-12-2003 in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997, A sample of the recovered substance was later on sent to the Chemical Examiner for analysis and a report in that regard was received in the positive. Upon conclusion of the investigation a challan was submitted before the learned trial Court which framed a charge against the appellant and his co-accused to which they pleaded not guilty and claimed a trial. During the trial the prosecution produced eight witnesses in support of its case against the appellant and his co-accused. In his statement recorded under section 342, Cr.P.C. the appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He, however, ' opted not to make a statement on oath under section 340(2), Cr.P.C. and did not produce any witness in his defence. At the conclusion of the trial the learned trial Court acquitted the appellant's co-accused but after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt it convicted and sentenced the appellant as mentioned and detailed above. Hence, the present appeal and the connected revision petition before this Court.

3. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance.

4. After hearing the learned counsel for the parties and going through the record we have straightaway observed that the order-sheet of the learned trial Court in this case is completely silent regarding supply of copies of the relevant documents to the appellant as contemplated by the provisions of section 265-C, Cr.P.C. The order-sheet shows that initially the learned trial Court had. only summoned the co-accused of the appellant to face a trial and copies of the relevant documents had been supplied to them by the learned trial Court but at a later stage the appellant was also summoned to face a trial but at the time of joining the appellant in the trial and at all subsequent stages the learned trial Court had failed to supply copies of the relevant documents to the appellant as required by the provisions of section 265-C, Cr.P.C. In the case of Naveed Asif v. The State PLD 1988 SC 99 the Honourable Supreme Court of Pakistan had clearly observed that an accused person had a "right " to get copies of the relevant documents supplied to, him under section 265-C, Cr.P.C. This right of the appellant had clearly been denied to him in the case in hand.

5. We have also found that initially the prosecution had alleged that it was Ghulam Abbas appellant alone from whose possession the relevant narcotic substance had been recovered by the police but subsequently the appellant was found to be innocent and he was discharged by the learned Judicial Magistrate 1st Class, Mianwali on 28-1-2004 whereafter his name was placed in Column No.2 of the challan submitted in this case. After finding the appellant to be innocent the investigating agency had declared that the. narcotic substance recovered in this case had as a matter of fact been recovered from the possession of the appellant's co-accused namely Muhammad Zaman and Muhammad Zubair whose names were later on placed in Column No.3 of the challan. It was, thus, either Ghulam Abbas appellant or his above-mentioned two co-accused who were guilty of the offence involved in this case. It was held by this Court in the case of Ali and others v. The Crown PLD 1954 Lah. 183 that two conflicting sets of accused persons, one set of which has allegedly committed the offence in issue, cannot be tried together through one trial. Subsequently, a similar view was expressed by trails Court in the case of Akhtar Hayat and another v. The State and others PLD 2003 Lah.

71. The charge framed by the learned trial Court in this case on 12-4-2004 shows that the learned trial Court had bracketed Ghulam Abbas appellant together with his co-accused and had framed one single charge against both the said conflicting sets of accused persons. This was surely an illegality on the part of the learned trial Court which had vitiated the whole trial.

6. It is evident from the record that the alleged recovery of narcotic substance from the possession of Ghulam Abbas appellant had also, been witnessed by Rab Nawaz Khan, S.-I. who had been given up by the prosecution before learned trial Court as unnecessary. The statements made by Ahmad Nawaz, A.S.-I. (P.W.4) and Asad Khan, A.S.-I. (P.W.5) before the learned trial Court that the above mentioned recovery witness namely Rab Nawaz Khan, S.-I. had maintained during the investigation that the prosecution's allegation against Ghulam Abbas appellant was factually incorrect and resultantly on the basis of a fresh investigation the appellant was declared innocent and was discharged and the appellant's two co-accused were implicated in this case as the actual culprits. Such a stand taken by Rab Nawaz Khan, S.-I. during the investigation of this case and the resultant discharge of the appellant had surely created a serious dent in the prosecution's case against the appellant.

7. Two witnesses produced before the learned trial Court by the prosecution itself, i.e. Mst. Aziz Khatoon (P.W.6) and Mst. Saeeda Bibi (P.W.7) had categorically deposed about innocence of the appellant which factor had also seriously reacted against the allegations levelled by the prosecution against Ghulam Abbas appellant.

8. The alleged recovery of Charas from the appellant ' s possession had been deposed about before the learned trial Court by Ahmad Nawaz, A.S.-I. (P.W.4) and Asad Khan, A.S.-I. (P.W.5) but both the said witnesses had made contradictory statements regarding the shape in which Charas had been recovered. According taking of a sample of the recovered and regarding to Ahmad Nawaz, A.S.-I. (P.W.4) the recovered Charas was in the shape of one brick whereas according to Asad Khan, A.S.-I. (P.W.5) the recovered Charas was in the form of two cakes. According to Asad Khan, A.S.-I. (P.W.5) a sample was taken from each of the two cakes of recovered Charas but the F.I.R. lodged in this case by him and the memorandum of recovery prepared by him show that only sample was taken from the entire recovered substance. Such major contradictions had rendered the allegation against the appellant to be quite doubtful.

9. Last but not the least, the learned counsel for the State appearing before us has candidly conceded that after a thorough investigation of this case the State had found through its investigating agency that the appellant was innocent and resultantly his name was placed in Column No.2 of the challan submitted in this case. He has, therefore, maintained that he represents the State which had found the appellant to be innocent and, thus, he is not in any position to oppose this appeal.

10. For what has been discussed above a conclusion is unavoidable and inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. Criminal Appeal No.1076 of D 2005 is, therefore, allowed the conviction and sentence of Ghulam Abbas appellant recorded by the learned trial Court are set aside and he is acquitted of the charge. He shall be released from the jail forthwith if not required in any other case.

11. On account of the acquittal of Ghulam Abbas appellant recorded by us in Criminal Appeal No.1076 of 2005 the suo motu notice issued by this Court to the said appellant is hereby recalled and discharged and Criminal Revision No.548 of 2005 is hereby dismissed.

H.B.T./G-35/L ???????????????????????????????????????????????????????????? Appeal allowed.