RIAZ AHMAD Versus State
TARIQ SALEEM SHEIKH, J. ---Through this appeal the Appellant, Riaz Ahmad, has assailed judgment dated 2.5.2019 passed by the learned Additional Sessions Judge, Vehari, in case FIR No.521/2017 dated 29.12.2017 registered at Police Station Saddar Burewala, District Vehari, whereby he was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 (the "Act"), and sentenced to rigorous imprisonment for four years and six months with fine of Rs.20,000/- and in default thereof to undergo simple imprisonment for a further period of five months. However, benefit of section 382-B, Cr.P.C. was extended to him.
2. Brief facts of the case are that on 29.12.2017 at 11:30 a.m. Complainant Munawar Hussain/ASI (PW-2) was interrogating the Appellant in case FIR No.522/2017 dated 23.12.2017 registered at Police Station Danewal for offences under sections 457/380, P.P.C. when he disclosed that he was also engaged in drug trafficking and had concealed charas near his house. Thereupon, he led the Complainant and other police officials to that place and got recovered charas weighing 1450 grams. Munawar Hussain/ASI drew 72.50 grams out of the recovered substance and prepared a sealed sample parcel for chemical analysis. He preserved the remaining bulk P-1 through a separate sealed parcel and secured both the parcels vide Recovery Memo Exh.PA. After that he drafted complaint (Exh.PB) and despatched it to the police station through Iftikhar Hussain 519/C on the basis of which Suhail Rustam 800/HC (PW-4) registered FIR No.521/2017 (Exh.PD). Altaf Hussain Joyia/SI (PW-3) investigated this case and found that the Appellant had committed the offence and submitted report under section 173, Cr.P.C. accordingly.
3. On 7.3.2018, the learned Additional Sessions Judge indicted the Appellant who pleaded not guilty and claimed trial. In order to prove its case the prosecution produced five witnesses, namely, Iftikhar Hussain 1485/C (PW-1), Munawar Hussain/ASI (PW-2), Altaf Hussain Joyia/SI (PW-3), Sohail Rustam 800/HC (PW 4) and Muhammad Irshad [143/C (PW-5). In documentary evidence, the prosecution inter alia produced Narcotics Analysis Report Exh.PE.
4. After the close of prosecution evidence the learned trial Court recorded the statement of the Appellant under section 342, Cr.P.C. He denied the allegations levelled against him and professed innocence. He maintained that the Complainant, the Investigating Officer and the PWs being police officials were not trustworthy. He added that Complainant Munawar Hussain/ASI had snatched his Mehran car bearing Registration No.LEB-5311 and cash amounting to Rs.2,50,000/- and falsely booked him in this false case when he demanded them back. He neither opted to make statement on oath under section 340(2), Cr.P.C. nor examined any witness in his defence. On the conclusion of the trial, vide impugned judgment dated 2.5.2019, the learned Additional Sessions Judge convicted and sentenced the Appellant as mentioned hereinabove.
5. The learned counsel for the Appellant contended that the Appellant was innocent and the police had falsely implicated him in this case to show their efficiency. The contraband charas was not recovered from him. The fact that no private person was associated with the proceedings and the provisions of section 103, Cr.P.C. were violated made the whole exercise dubious. He further contended that there were material contradictions in the prosecution evidence which entitled the Appellant to the benefit of doubt which had been illegally withheld by the learned trial Court. Lastly, safe custody of the sample parcel and its safe transmission to the PFSA was not established which vitiated report Exh.PE. He prayed that this appeal may be accepted and the Appellant be acquitted of the charge.
6. On the other hand, the learned Deputy Prosecutor General controverted the above contentions and supported the impugned judgment. He argued that a huge quantity of contraband charas was recovered from the Appellant which was duly proved by Iftikhar Hussain 1485/C (PW-1). Munawar Hussain/ASI (PW-2) and Muhammad Irshad 1143/C (PW-5). Their testimony was corroborated by the positive Narcotics Analysis Report Exh.PE. He denied that the prosecution could not prove safe custody of the sample parcels and the remaining bulk P-1. He prayed for dismissal of this appeal.
7. Arguments heard. Record perused.
8. According to the prosecution, on 29.12.2017 the Appellant got recovered 1450 grams buried in a deserted Dera adjacent to his house. Complainant Munawar Hussain/ASI (PW-2), Iftikhar Hussain 1485/C (PW-1) and Muhammad Irshad 1143/C (PW-5) testified about the said recovery. We have, however, noted that the prosecution has failed to prove safe custody of the case property and safe transmission of the sample parcel to the PFSA. Munawar Hussain/ASI (PW-2) deposed that charas recovered from the Appellant weighed 1450 grams and he drew 72.50 grams therefrom for chemical analysis and prepared two sealed parcels and seized them vide Recovery Memo Exh.PA which was attested by Iftikhar Hussain 1485/C (PW-1) and PW Muhammad Irshad 1143/C (given up). The former confirmed this fact. Munawar Hussain/ASI further deposed that when the Investigating Officer, Altaf Hussain Joyia/SI (PW-3), came to the spot he handed over the case property to him and that on 8.1.2018 the Moharrar of the police station entrusted one sealed parcel to him for delivery at the police officer of the PFSA. Altaf Hussain Joyia/SI confirmed receipt of the case property from Munawar Hussain/ASI and its entrustment to the Moharrar for safe custody. Sohail Rustam 800/HC (PW- 4), who was the Moharrar of the police station, however, testified somewhat differently. He said:
"On the same day [29.12.2017], Altaf Hussain/SI handed over to me case property comprising two sealed parcels of Charas which I kept in safe custody in the Malkhana. On 29.12.2017, Altaf Hussain/SI recorded my statement under section 161, Cr.P.C. On 08.01.2018, I handed over the parcel weighing 72-1/2 grams of the sample to Munawar Hussain/ASI for onward transmission to the Office of PFSA, Lahore. On 09.01.2018, Altaf Hussain/SI recorded my statement and of Munawar Hussain/ASI. On 08.01.2018, remaining sealed parcels of Charas was handed over to me by Altaf Hussain/SI, which I kept in the safe custody in Saddr Malkhana."
9. Muhammad Irshad 1143/C (PW-5), who was also a member of the raiding party, contradicted the aforementioned witnesses when he stated:
"On reaching the house, accused Riaz Ahmad took out a shopper from beneath the bricks lying under the stairs. Munawar Hussain/ASI took the same into custody and weighed it which was 1450 grams. 72-1/2 grams was separated as sample. Then Munawar Hussain/ASI handed over the sample to Iftikhar Hussain 519/C and despatched him. Munawar Hussain/ASI drafted the complaint. Then we returned to the Police Station Danewal".
10. The above-mentioned contradictions are material and cannot be ignored as the learned Deputy Prosecutor General attempted to suggest. They cut the prosecution case at its roots.
11. There is another aspect of the case. Perusal of the record reveals that Munawar Hussain/ASI (PW-2), Complainant of the FIR, was posted at Police Station Danewal and on the disclosure of the Appellant during the course of investigation of case FIR No.522/2017 registered at the said police station he recovered 1450 grams charas from a deserted Dera situated within the territorial jurisdiction of Police Station Saddar Burewala where the case in hand was registered. Consequently, investigation of the case was entrusted to Altaf Hussain Joyia/SI (PW-3) of the said police station. It is not understandable as to way the Moharrar of the police station delivered the sample parcel to Munawar Hussain/ASI of different police station instead of an official of Police Station Saddar Burewala. This fact also makes safe custody of the sample parcel doubtful.
12. Inasmuch as the prosecution has failed to establish safe custody of the case property and safe transmission of the sample parcel to the PFSA, report Exh.PE is vitiated. Reliance is placed on Ikramullah v. State (2015 SCMR 1002) and The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039).
13. This is not all. According to the prosecution, Complainant Munawar Hussain/ASI (PW-2) sent the complaint Exh.PB to the police station for registration of formal FIR through Iftikhar Hussain 519/C. The said constable was not examined during the trial. In Minhaj Khan v. The State (2019 SCMR 326) the apex Court held that such a person was a material witness and considered it as one of the grounds to acquit the accused.
14. For all the above reasons the conviction of the Appellant cannot be sustained. Hence, we allow this appeal and set aside the impugned judgment dated 2.5.2019. The Appellant is acquitted of the charge. He shall be released from the jail forthwith if not required to be detained in some other case.
SA/R-6/L Appeal allowed.