MUHAMMAD FAYYAZ Versus State
TARIQ SALEEM SHEIKH, J.--- This appeal under section 48 of the Control of Narcotic Substances Act, 1997 (the "Act"), is directed against judgment dated 4.1.2017 passed by the learned, Judge, Special Court (CNS), Lodhran, in case FIR No.409/2014 dated 3.10.2014 registered at Police Station Saddar Lodhran, for an offence under section 9(c) of the Act.
2. Brief facts of the case are that on 3.10.2014 Complainant Istiqar Ahmad/ASI (PW-5) was on patrol duty with other police officials at Danwaran Morr when he received a secret information that the Appellant, allegedly a notorious drug peddler, was spotted near railway line of Mujaldi Wala Railway Station and that he could be apprehended if a prompt action was taken. On this tip-off the Complainant hastened to the specified place with a police contingent, nabbed the Appellant and recovered 5.400 kilograms opium, a weighing scale and bots from him. He drew 10 grams sample out of the recovered substance and prepared sealed parcel thereof for chemical analysis and secured the residue in a separate sealed parcel. The Appellant's personal search yielded a mobile phone and Wattak money in the sum of Rs.4750/-. The Complainant seized both the parcels along with weighing scale, bots, Wattak money and mobile phone vide Recovery Memo Exh.PC. After that he drafted complaint Exh.PA and sent it to the police station through Sher Afzal 201/C or the basis of which Aziz Ahmad 55/HC (PW-2) registered FIR No.409/2014 Exh.PB.
3. The investigation of the case was entrusted to Mushtaq Ahmad/Inspector (PW-6) who went to the place of recovery, interrogated the Appellant, prepared rough site plan Exh.PD and recorded the statements of the witnesses under section 161, Cr.P.C. On his way back to the police station he handed over the case property to Naseem Abbas 5/HC (PW-3) for safe custody. During his investigation PW Mushtaq Ahmad/Inspector found that the Appellant had committed the offence. Report under section 173, Cr.P.C. was submitted accordingly.
4. On 4.12.2014, the learned Judge, Special Court (CNS), Lodhran, indicted the Appellant who pleaded not guilty and claimed trial. The prosecution produced six witnesses to establish its case. Muhammad Mitha 20/HC (PW-4) and Istiqar Ahmad/ASI (PW-5) testified about the recovery of contraband opium from the Appellant. Zulfiqar Ali 377/C (PW-1) deposed that he transmitted the sample parcel at the office of Punjab Forensic Science Agency (PFSA). Naseem Abbas 5/HC was Moharrar of the police station who testified about safe custody of the case property. The Investigating Officer, Mushtaq Ahmad/ Inspector (PW-6), gave details of the investigation that he conducted in this case. In documentary evidence, the prosecution inter alia adduced report of the PFSA Exh.PE.
5, After the close of prosecution evidence the learned trial Court recorded statement of the Appellant under section 342, Cr.P.C. He denied the allegations levelled against him and professed innocence. He maintained that he had a brawl with the Investigating Officer whereupon he falsely implicated him in this case to teach him a lesson. The Appellant neither made statement on oath under section 340(2), Cr.P.C. nor examined any witness in his defence.
6. On the conclusion of the trial, vide impugned judgment dated 4.1.2017, the learned trial Court convicted the Appellant under section 9(c) of the Act and sentenced him to rigorous imprisonment for eight years and six months with fine of Rs.40,000/- and in default thereof to undergo simple imprisonment for a further period of seven months. However, benefit of section 382-B, Cr.P.C. was extended to him.
7. The learned counsel for the Appellant contended that the prosecution had miserably failed to prove the charge against the Appellant. The alleged contraband opium was not recovered from him and the same had been foisted by the police. There were glaring contradictions in the statements of the witnesses which made them untrustworthy. Furthermore, safe transmission of the representative parcel to the PFSA was not established which vitiated report Exh.PE. The learned counsel prayed that this appeal be accepted and the Appellant may be acquitted of the charge.
8. On the other hand, the learned Deputy Prosecutor General controverted the above contentions and supported the impugned judgment. He contended that a huge quantity of 5.400 kilograms opium was recovered from the Appellant which was proved by Muhammad Mitha 20/HC (PW-4) and Istiqar Ahmad/ASI (PW-5) whose evidence was reliable and inspired confidence. The learned Law Officer maintained that the police party had no motive to falsely implicate the Appellant in this case. The prosecution had proved its case to the hilt so this appeal be dismissed.
9. Arguments heard. Record perused.
10. The prosecution case is that on 3.10.2014 the Appellant was apprehended from near the railway line of Mujaldi Wala Railway Station within the territorial limits of Police Station Saddar Lodhran and 5.400 kilograms opium was recovered from him. The prosecution produced Muhammad Mitha 20/HC (PW-4) and Istiqar Ahmad/ASI (PW-5) to prove the alleged recovery. We have, however, noted that there are material defects in the case which make it extremely doubtful.
11. PWs Muhammad Mitha 20/HC and Istiqar Ahmad/ASI deposed that the contraband was contained in "many small polythene bags". However, none of them could give their precise number: Apart from that they were discrepant on various points which impinges on their credibility.
12. The prosecution has also failed to establish safe custody of the case property as well as safe transmission of the sample parcel to the PFSA. Istiqar Ahmad/ASI (PW-5) deposed that he drew 10 grams sample, out of the recovered substance and prepared sealed parcel thereof for chemical analysis and seared the remainder in a separate sealed parcel P-1, weighing scale P-2., bots P-3 to P-5 and Wattak money. P-6 to P-19 and cell Phone vide recovery memo Exh.PC. He added that when the Investigating Officer, Mushtaq Ahmad/Inspector (PW-6) came to the spot he handed over the sealed parcels in question to him and he entrusted the same to Moharrar Naseem Abbas 5/HC for safe keeping when he reached the police station. We have noted that in the first place Mushtaq Ahmad/Inspector did not confirm that he received the parcel from Istiqar Ahmad/ASI. Secondly, although the prosecution case was that the parcels were handed over to Naseem Abbas 5/HC (PW-3) the very day it was proved otherwise. In his examination-in-chief Naseem Abbas 5/HC tried to hide the date when the case property was handed over to him. He deposed:
"I was posted as Moharrar at P.S. Saddar Lodhran. I.O. of the case handed over me two sealed parcels for keeping them into safe custody of Malkhan. On 12.10.2014, I handed over one sealed parcel to Zulfiqar Ali 377/C for onward transmission to the office of Chemical Examiner, Lahore. The parcels remained with me were intact. I.O. of the case recorded my statement in this respect."
However, in his cross-examination, he admitted that he received the case property on 12.10.2014 and the same day he gave the sample parcel to Zulfiqar Ali 377/C. He categorically admitted that "we do not make any entry regarding the case property received by us" - a practice which is contrary to law. Further, there is no evidence as to where the sealed parcel remained till 12.10.2014.
13. Ameer Zeb's case (PLD 2012 SC 380) laid the principle that representative sample must be drawn from every packet/slab/piece of narcotic or psychotropic substance and sent for chemical analysis. This principle has not only been consistently followed but reiterated in numerous subsequent judgments. As already noted, in the instant case PWs Muhammad Mitha 20/HC and Istiqar Ahmad/ASI testified that the contraband was contained in many small polythene bags. However, there is no evidence as to what was the weight of each individual packet and whether the sample was drawn from only one of them or after amalgamating them. In the circumstances, the said sample cannot be reckoned as a representative one in view of the law laid down in Ameer Zeb's case, supra.
14. The chain of custody of the sample parcel broke right in the beginning when Istiqar Ahmad/ASI (PW-5) and Mushtaq Ahmad/ Inspector (PW-6) could not establish its immediate safe deposit in the Malkhana. However, the PFSA report Exh.PE blasts the prosecution case. The PWs alleged that opium was recovered from the Appellant but the Chemical Analyst found that the sample was of charas. The contention of the learned Law Officer that no adverse inference can be drawn against the prosecution on the basis of PFSA report because the PWs are not experts has no substance. Charas and opium are two different things having distinct appearance. It is hard to believe that police officials can take charas for opium.
15. In the result, we accept this appeal and set aside the impugned judgment 4.1.2017. The Appellant is acquitted of the charge. He shall be released from jail forthwith if not required in some other criminal case.
SA/M-5/L Appeal accepted.