MUHAMMAD NADEEM Versus State
TARIQ SALEEM SHEIKH, J. ---This appeal is directed against judgment dated 25.11.2017 passed by the learned Additional Sessions Judge, Jahanian, in case FIR No.306/2015 dated 18.8.2015 registered at Police Station Jahanian, District Khanewal, for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (the "CNSA").
2. Brief facts of the case are that on 18.8.2015 Complainant Shaukat Ali/SI (PW-3) moved an application (Exh.PB/1) to the SHO to the effect that he along with other police officials was present at Chak No.57/10-R in connection with investigation of case FIR No.293/2015 dated 16.8.2015 registered under section 9(c) of the CNSA at Police Station Jahanian. During interrogation Appellant Muhammad Nadeem, who was under arrest in the said case, disclosed that he had charas in his house and then led the police party to it and got recovered a shopping bag from an iron box in his residential room which contained 1140 grams contraband. Shaukat Ali/SI drew 10 grams out of it and prepared a sealed sample parcel for chemical analysis. He preserved the remaining bulk (P-1) through a separate sealed parcel and secured all the parcels vide Recovery Memo Exh.PA. On the basis of complaint (Exh.PB/1) Noor Muhammad 536/HC (PW-2) chalked out FIR No.306/2015 (Exh.PB) at 4:45 p.m. the same day.
3. After due investigation, report under section 173, Cr.P.C. was prepared and submitted before the Court. On 15.10.2015, the learned Additional Sessions Judge indicted the Appellant who pleaded not guilty and claimed trial.
4. In order to prove its case the prosecution produced four witnesses, namely, Muhammad Arshad 17/HC (PW-1), Noor Muhammad 536/HC (PW-2), Shaukat Ali/SI (PW-3) and Abdul Rauf Nawaz FS (PW-4). On 26.10.2017 the learned prosecutor closed the prosecution evidence after tendering report of the Punjab Forensic Science Agency Exh.PD.
5. After the close of prosecution evidence the learned trial Court recorded the statement of the Appellant under section 342, Cr.P.C. and confronted him with all the incriminating material that was brought against him during the trial. He refused it and professed innocence. When he was asked as to why this case had been registered against him and why the PWs had deposed against him he replied as under:
"Shaukat Ali/SI lodged false cases against me. Actually, one Tariq Ayub, who is Chairman of our Union Council and he is resident of our Chak. There is old enmity between our family and family of Tariq Ayub. My father Raees Khan contested election on the seat of Councillor against Karim Khan, father of said Tariq Ayub. Afterwards maternal uncle of Tariq Ayub was murdered by some unknown person and allegation of his murder was levelled against our relatives Umar Farooq and Waryam. We supported Umar Farooq and Waryam in that case and also opposed Tariq Ayub in his election. Shaukat SI was I.O. of that murder case who frequently visited Tariq Ayub. Shaukat SI got registered this case and other false cases against me on the instigation of Tariq Ayub. Nothing was recovered from me. Actually police arrested me from my house at the time of Azan of Fajar after entering into my house without warrant and my permission on 16.8.2015. Police demanded money from me which I refused so due to that grudge Shaukat Ali SI after two days of my arrest roped me in this false case. Story of FIR is false and concocted. Neither I disclosed nor I led the police for recovery of charas. All the recovery proceeding of police are fake and fictitious which was planted upon me while sitting at the police station. On 18.8.2015 neither Shaukat Ali SI along with other police officials visited at Chak No.57/10-R nor I led the police for recovery purposes. Story of FIR is surprising and baseless because how it possible, that charas allegedly kept at my house and after two days of my arrest I got recovered this charas whereas my other family members also reside in my house. PWs are subordinate of I.O. and they are interested witnesses. Therefore they are not reliable. No private witness was associated by the police in the recovery proceedings from my village or surrounding area."
The Appellant did not opt to make statement on oath under section 340(2), Cr.P.C. He, however, opted to adduce evidence in defence and examined Ikhlaq Hussain and Muhammad Akram as DW-1 and DW-2 respectively.
6. On the conclusion of the trial, vide impugned judgment dated 25.11.2017, the learned Additional Sessions Judge convicted the Appellant under section 9(c) of the CNSA and sentenced him to rigorous imprisonment for four years with fine of Rs.20,000/- and in default thereof to undergo simple imprisonment for a further period of five months. Benefit of section 382-B, Cr.P.C. was extended to him. Hence, this appeal.
7. The learned counsel for the Appellant contended that it was a fake case. Shaukat Ali/SI (PW-3) had registered three false FIRs against the Appellant in two days at the behest of Tariq Ayub, one of his fiercest enemies. On 18.8.2015 neither the Appellant made any disclosure to Shaukat Ali/SI nor led the police party to his house in Chak No.57/10-R and no contraband charas was recovered at his instance. It was foisted on him. He next contended that the Complainant was himself was the Investigating Officer and all the witnesses were police officials. They did not associate any private person with the proceedings and thus violated section 103, Cr.P.C. Lastly, there were material contradictions in the prosecution evidence which legitimately entitled the Appellant to benefit of doubt. He prayed that this appeal may be accepted and the Appellant be acquitted of the charge.
8. On the other hand, the learned Additional Prosecutor General controverted the above contentions and supported the impugned judgment. He argued that the prosecution witnesses had proved recovery of contraband charas beyond any shadow of doubt. The samples drawn from the recovered substance tested positive which reinforced their testimony. He further argued that the Appellant was a notorious drug paddler and his allegation that he was being maliciously prosecuted was false. He prayed for dismissal of this appeal.
9. We have heard the learned counsel and have examined the record with their able assistance.
10. The prosecution case is that the Appellant was arrested in case FIR No.293/2015 dated 16.8.2015 registered under section 9(c) of the CNSA at Police Station Jahanian. On 18.8.2015 while on physical remand he disclosed that he had kept charas in his house in Chak No.57/10-R and then led the police party there and got recovered 1140 grams charas from an iron box lying in his residential room. The prosecution produced Muhammad Arshad 17/HC (PW-1) and Shaukat Ali/SI (PW-3) to prove the factum of the aforesaid recovery. PW-1 Muhammad Arshad testified that the charas comprised of one packet which weighed 1140 grams on scale. Shaukat Ali/SI separated 10/10 grams (20 grams) therefrom and prepared a sealed sample parcel for chemical analysis and secured the remaining bulk (P-1) by means of a distinct parcel and took both of them in his possession vide Recovery Memo Exh.PA. Shaukat Ali/SI (PW-3) deposed on the same lines. The examination-in-chief of both the witnesses is somewhat ambiguous with regard to the number of sample parcels prepared and their weight. However, in his cross-examination Shaukat Ali/SI admitted that he separated two samples of 10 grams each. This is in conflict with Recovery Memo Exh.PA which categorically states that only 10 grams were drawn from the recovered substance and one sample parcel was prepared. Shaukat Ali/SI admitted that in his statement under section 161, Cr.P.C. of the second recovery witness, namely, Shaukat Constable (given up), recorded that only one sample of 10 grams was made. This is a material contradiction in the prosecution case and cuts at its roots.
11. There is another important aspect of the case. The Appellant was arrested on 16.8 2015 in case FIR No.293/2015 and on the same day Shaukat Ali/SI and other police officials raided his house and allegedly recovered 5920 grams charas at his instance from an iron box lying in his residential room. Consequent thereupon FIR No.300/2015 was registered against him. Perusal of the record reveals that the police party thoroughly searched the entire house for more narcotics but they could not find any. In the circumstances, recovery of another 1140 grams charas from the Appellant's same room after two days seems rather dubious.
12. For what has been discussed above, in our opinion, the prosecution has failed to prove the charge against the Appellant beyond shadow of doubt. It is a cardinal principle of criminal jurisprudence that in case of doubt its benefit must go to the accused not as a matter of grace but of right. In Muhammad Mansha v. The State (2018 SCMR 772), the Hon'ble Supreme Court of Pakistan held:
"Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim, it is better that ten guilty persons be acquitted rather than one innocent person be convicted. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."
13. In view of the foregoing, this appeal is accepted. The impugned judgment is set aside and the Appellant is acquitted of the charge.
SA/M-26/L Appeal accepted.