Muhammad Adnan Versus State
Sadiq Mahmud Khurram, J .--- The appellant namely Muhammad Adnan son of Abdul Rehman was tried by the learned Additional Sessions Judge, Multan in case FIR No. 2022 of 2023 dated 27.08.2023 registered at Police Station Mumtazabad District Multan, in respect of an offence under section 9(1), entry No. 3 of Column No. (1), entry (c) of Column No. (2) read with Column No. (3) of the TABLE given under section 9(1) of the Control of Narcotic Substances Act, 1997 as amended by the Control of Narcotic Substances (Amendment) Act 2022. The learned trial court vide judgment dated 12.02.2024 convicted Muhammad Adnan son of Abdul Rehman (appellant) and sentenced him as infra:-
Muhammad Adnan son of Abdul Rehman:
Rigorous Imprisonment of nine years under section 9(1) entry No. 3 of Column No.(1), entry (c) of Column No. (2) read with Column No. (3) of the TABLE given under section 9(1) of the Control of Narcotic Substances Act, 1997 as amended by the Control of Narcotic Substances (Amendment) Act, 2022 and directed to pay fine of Rs.80,000/- and in default thereof to further undergo Simple Imprisonment for five months.
The appellant was however, extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court.
2. Feeling aggrieved, Muhammad Adnan son of Abdul Rehman (convict) lodged the instant Criminal Appeal No. 241 of 2024 assailing his conviction and sentence.
3. Precisely, the necessary facts of the case, as divulged through the statements of the prosecution witnesses are that the appellant namely Muhammad Adnan son of Abdul Rehman was arrested on 27.08.2023 and 1441 grams of Charas, in the shape of two pieces (one piece P-1, weighing 1030 grams and the other piece P-2 weighing 411 grams) was recovered from his possession, which was taken into possession through recovery memo (Exh.PA).
4. On the above stated facts, FIR No. 2022 of 2023 (Exh.PC) dated 27.08.2023 was registered at Police Station Mumtazabad District Multan, in respect of an offence under section 9(1), entry No. 3 of Column No.(1), entry (c) of Column No. (2) read with Column No. (3) of the TABLE given under section 9(1) of the Control of Narcotic Substances Act, 1997 as amended by the Control of Narcotic Substances (Amendment) Act, 2022.
5. After the formal investigation of the case, report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the appellant namely Muhammad Adnan son of Abdul Rehman was sent to face trial. The learned trial court framed the charge against the accused on 14.11.2023 under section 9(1), entry No. 3 of Column No.(1), entry (c) of Column No. (2) read with Column No. (3) of the TABLE given under section 9(1) of the Control of Narcotic Substances Act, 1997 as amended by the Control of Narcotic Substances (Amendment) Act, 2022. The accused pleaded not guilty and claimed trial and the learned trial Court proceeded to examine the prosecution witnesses.
6. In order to prove the facts, the prosecution got as many as five witnesses examined. The prosecution got Muhammad Saleem, ASI (PW-1), Muhammad Akram 1259/C (PW-2) and Ayyaz 360/C (PW-5) examined as witnesses of recovery of the 1441 grams of Charas, in the shape of two pieces (one piece P-1, weighing 1030 grams and the other piece P-2 weighing 411 grams) from the possession of the appellant. Muhammad Sajaid 2082/HC (PW-3) stated that on 27.08.2023, he got recorded the formal FIR (Exh.PC) and on the same day, Muhammad Safdar, SI (PW-4), the Investigating Officer of the case, handed over to him two sealed parcels said to contain the samples drawn and separated from the recovered "Charas" and one sealed parcels said to contain the remaining recovered "Charas" for keeping them in safe custody and on 30.08.2023, he handed over the two sealed parcels said to contain the sample drawn and separated from the recovered "Charas" to Muhammad Safdar, SI (PW-4) for its onward transmission to the office of the Collection Centre, Punjab Forensic Science Agency, Multan. The prosecution witness namely Muhammad Safdar, SI (PW-4) investigated the case from 27.08.2023 till its conclusion and detailed the facts of his investigation in his statement before the learned trial court.
7. On 17.01.2024, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Muhammad Ishfaq 2562/C as being unnecessary. On 20.01.2024, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency, Lahore (Exh.PG).
8. After closing of prosecution evidence, the statement of the appellant was recorded under section 342 of the Code of Criminal Procedure, 1898 and the appellant pleaded his innocence and in reply to as to why the PWs had deposed against him, he stated that the witnesses were Police Officials, who deposed falsely against him just to strengthen the prosecution being subordinate of the complainant of the case. The appellant opted not to appear in terms of section 340(2) of the Code of Criminal Procedure, 1898 and did not adduce any evidence in his defence.
9. After completion of evidence and hearing both the parties, the learned trial court held the appellant guilty of the offence and sentenced him as referred to above.
10. The learned counsel for the appellant submitted that the prosecution had failed miserably to prove the case against the appellant. Learned counsel further argued that there were glaring contradictions in the statements of the witnesses hitting at the very root of the prosecution case. Learned counsel also stated that nothing was recovered from the appellant and pleaded for the acquittal of the appellant.
11. On the other hand, the learned Additional Prosecutor General appearing on behalf of the State submitted that the prosecution had proved the charge by producing admissible and relevant evidence. He further submitted that all the witnesses corroborated each other. He requested that the appeal be dismissed.
12. We have heard the learned counsel for the appellant as well as the learned Additional Prosecutor General and perused the record.
13. At the very outset, we have noticed that there is a flaw in the prosecution case with regard to the depositing of the remaining quantity of the recovered "Charas" weighing 1,365.92 grams in the Malkhana Saddar Multan . According to the prosecution witness namely Muhammad Sajaid 2082/HC (PW-3), the remaining quantity of the recovered "Charas" weighing 1,365.92 grams was deposited in the Malkhana Saddar Multan . In his statement recorded by the learned trial court, Muhammad Sajaid 2082/HC (PW-3), claimed as under :-
"On 30.08.2023 1 handed over two sealed sample parcels to Muhammad Safdar SI vide road No.1888/21 Exh.PD for its onward transmission to PFSA Collection Centre Multan which he deposited in the concerned office on the same day and returned the road certificate. Investigating Officer recorded my statement under section 161 Cr.P.C in this regard. On the 31.08.2023 I also handed over sealed parcel of remaining case property vide road No.1899/21 Exh. PE for its onward transmission to Malkhana Saddar, Multan which the Investigating Officer deposited in Saddar Malkhana intact on the same day
However, it is also a fact that any Moharrir of the Malkhana Saddar Multan was not produced as a prosecution witness during the trial of the case to prove that the sealed parcel containing the remaining quantity of the recovered "Charas" weighing 1,365.92 grams was ever deposited in the Malkhana Saddar Multan . No application was moved by the prosecution seeking permission to produce the Moharrir of the Malkhana Saddar Multan to prove the fact that what happened with the remaining bulk of the recovered "Charas" weighing 1,365.92 grams and when it was deposited in the Malkhana Saddar Multan and how it was transmitted from the Malkhana Saddar Multan to the learned trial court. It is manifest from the perusal of the statements of the prosecution witnesses that the prosecution failed to prove the safe deposit of the remaining quantity of the recovered "Charas" weighing 1,365.92 grams in the Malkhana Saddar Multan and therefore the safe custody of the remaining quantity of the recovered "Charas" weighing 1,365.92 grams could not be proved. Reliance in this regard is placed on the case of Faizan Ali v. The State (2019 SCMR 1649). We have, however, noted that the prosecution has only proved safe custody and due transmission of the sealed parcels said to contain the samples drawn and separated from the recovered "Charas" to the office of the Punjab Forensic Science Agency, Lahore. When the prosecution evidence itself is revealing of the fact that there is no consistent evidence with regard to the safe custody of the recovered 1,365.92 grams of "Charas" and when the prosecution evidence is consistent with regard to the recovery of only 75.08 grams of "Charas", the weight of the "Charas" as received in sealed parcels by the Punjab Forensic Science Agency, Lahore, from the appellant, then, in absence of any consistent evidence with regard to the safe custody of 1,365.92 grams of "Charas" recovered from the appellant on 27.08.2023, we cannot presume the same on our own. Stringent sentences have been provided for the offences under the Control of Narcotic Substances Act, 1997 as such heavy onus lies on the prosecution to prove the exact weight of the recovered "Charas" which had been recovered from the appellant's possession. We are constrained to hold, in the circumstances of the case and the evidence available on record, that the prosecution has only been able to prove that 75.08 grams of "Charas" was recovered from the possession of the appellant, this being the weight of the "Charas" which was transmitted to the Punjab Forensic Science Agency, Lahore. With regard to the recovered 75.08 grams of "Charas", the prosecution has successfully proved its case to the extent of that recovery. For the safe administration of justice, it may be concluded that the appellant was liable to be held responsible for having 75.08 grams of "Charas" in his possession, which weight of the recovered "Charas" attracts the provisions of section 9(1), entry No. 3 of Column No. (1), entry (a) of Column No. (2) read with Column No. (3) of the TABLE given under section 9(1) of the Control of Narcotic Substances Act, 1997 as amended by the Control of Narcotic Substances (Amendment) Act 2022.
15. In this view of the above discussion, the instant Criminal Appeal No. 241 of 2024 is partly allowed . The conviction and sentence of the appellant recorded by the learned trial court for an offence under section 9(1), entry No. 3 of Column No.(1), entry (c) of Column No. (2) read with Column No. (3) of the TABLE given under section 9(1) of the Control of Narcotic Substances Act, 1997 as amended by the Control of Narcotic Substances (Amendment) Act 2022 are set aside . The appellant is convicted for the offence under section 9(1), entry No. 3 of Column No.(1), entry (a) of Column No. (2) read with Column No. (3) of the TABLE given under section 9(1) of the Control of Narcotic Substances Act, 1997 as amended by the Control of Narcotic Substances (Amendment) Act, 2022 and sentenced to rigorous imprisonment of ten months (for the recovery of 75.08 grams of "Charas") and directed to pay a fine of Rs.40,000/- (Rupees forty thousand only) and in default of payment thereof to undergo further simple imprisonment for one month. The appellant is also extended the benefit available under Section 382-B of the Code of Criminal Procedure, 1898.
The case property shall be dealt with as directed by the learned trial court. The record of the learned trial court be sent down immediately.
JK/M-167/L Order accordingly.