BAKHAR HAKAM KHAN re coe FUDGE/ JUDGE ‘SPECIAL COURT (CNSA), APD: ‘ARIFWALA. Narcotic Case No. 122 of 2021 ‘The State Versus Caste Muhammad Shahbaz alias Manga S/o Muhammad Sharif, Cas Jutt, R/O Shamasabad, Tehsil Arifwala. (accused) Case FIR No.283 dated 25.03.2021 Offence U/S 9-C CNSA, 1997. P.S City Arifwala. Date of decision: 27.10.2022 JUDGMENT ‘The above mentioned accused has been challaned by the local police to face trial in case FIR No.283 dated 25.03.2021, U/S 9-C of the Control of Narcotics Substances Act, 1997 registered at police station City, Arifwala on the complaint of Muhammad Unceb Akhtar TSI (PW-2) for the allegation of having possession of charas weighing 1400 grams, 2. Story of prosecution narrated by Unecb Akhtar ‘TS! (PW-2) is that on 25.03.2021, he alongwith Adnan Nazir 488/C, Mushtaq Ahmad 357/C (PW-3), Muhammad Munir 546/C by riding official vehicle being driven by Muhammad Khalid 362/C was present at Jinnah Chowk Arifwala for patrol duty, when he received a spy Qe information that @ notorious drug paddler namely Manga was coming 34} V4) from Qabula Sharif to Arifwala having huge quantity and could be wea wrerrested if immediate raid is conducted. Upon receiving this “<1 Syesietg, ™*4nformation, raiding party was constituted and he make Nakabandi at Qabula Chowk and after sometime, one person deboarded from New Chaudhary Bus and on the pointation of spy, he was arrested who disclosed his name @% Muhammad Shahbaz alias Manga S/o Muhammad Sharif, Caste Jatt, R/O Mohallah Shamasabad and upon the search of blue colour shopper held by the accused in his right hand, one packet of charas of dark brown colour was recovered which wasDe! dey © ‘The Gtate ls. Muhammad Shahbaz (2) weighed and found 1400 grams, ; He separa 5% from packet of recovered char ated 70 grams at the ratio of as epa S and prepared sealed sample parcel an id affixed seal with the monogram Waheed 720/HC (PW-1) lodged = formal FIR (lxh.PA), a After drafting FIR (Exh.PA), Muhammad Afval Javed Si “S) visited the spot, received the custody of accused, case property and cl ; other relevant documents. He also recorded the statements of witnesses under section 161 Cr, C, prepared site plan (Exh.PD) and after conducting the investigation got prepared report under section 173 Cr.P.C and submitted the same in the court 4. A formal charge was framed against the accused to which he pleaded not guilty and claimed trial 5. ‘The prosecution was asked to lead evidence in support of its allegation. Prosecution produced following witnesses:- PW-1. Abdul Waheed 720/HC being Moharrar on 25.03.2021 received written complaint (Exh.PB) sent by Uneeb Akhtar TSI (PW-2) through Muhammad Munir 546/C and got drafted FIR (Exh.PA). He also received two sealed parcels said to contain sample parcel and remaining case property and kept the same in Malkhana of police station. On 30.03.2021, he handed over the two sealed parcels to A KHAR BAKHAR Unceb Akhtar TSI (PW-2) on the direction of Muhammad Afzal Javed SI Sunstone Jude onward transmission to the office of PFSA and depositing the same in Malkhana Saddar Arifwala. *e PW-2, Uneeb Akhtar TSI happened to be the complainant of the case who apprehended and searched the accused, effected recovery of charas from his possession vide recovery memo (Exh-PB), drafted complaint (Exh-PC) and sent it to police station for registration of case. He received two parcels of sample parcel and remaining case property from Moharrar and deposited the same in concerned offices. PW-3, Mushtaq Ahmad 357/C is a recovery witness who deposed that they apprehended the accused and upon his search, charas was recovered from accused and he made his signatures on the recovery memo (Exh.PB). PW-4. Noor Nabi ASI being Moharrar Malkhana Judicial Arifwala received one sealed parcel of charas from Uneeb Akhtar TSI (PW-2) and kept the same in his safe custody.‘The State Vs. Muhammad Shahbaz el PW-5. Muhammad Afzal Javed SI happened to be investigating officer of the case who visited the spot, prepared site plan (Exh-PD), received the custody of accused and case property, handed over the case property to Moharrar of police station and recorded statements of witnesses under section 161 Cr.P.C. He also got prepared report u/s 173 Cr-P.C from the SHO concerned. 6. Learned DDPP for the State gave up PW Adnan Nazir 488/C, as being unnecessary and after tendering report of PFSA (Exh.PE), closed the prosecution evidence. 7 Alter the conclusion of prosecution evidence, statement of the accused was recorded under Sec.342 Cr.PC, wherein he refuted the allegations and claimed his innocence by taking the stance that:~ “This is a false case registered against me by police just to show departmental efficiency. Nothing _ incriminating material/contraband articles were recovered from my possession and the entire alleged recovery is false, fake and planted one. The entire alleged proceedings were also false, fake, fabricated and concocted by the local police while sitting at the police station. In fact on 24.03.2021, at evening time complainant arrested me from my home and detained in police lock-up and Gferwards they demanded heavy bribe from me and upon my deniat to fulfill thetr ttlegal and unwarranted demands for bribe, they falsely implicated me in this false case. The statements of i) PWs are fully contradicted with each other on material aspect of BT YY" tne case. Thave no concern whatsoever with the occurrence.” AlKE 4s: HeGMKHANBAKHAR the witnesses are police officials and subordinates of the LO anti” SET TMS complainant, therefore, they deposed against me on the direction of the complainant to falsely implicate me in this case. The safe custody of sample parcel as well as remaining case property not Proved by the prosecution.” The accused did neither opt to produce evidence in his defence nor to make statement on Oath in disproof of allegations, as env’ Sec.340(2) Cr.PC. 8. isaged under "have heard the arguments advanced by the learned defence counsel and learned ADPP for the State and perused the re with their able assistance. 9. cord Story of prosecution narrated by Uneeb Akhtar TSI (PW-2) is that on 28.08.2021, he alongwith Adnan Nazir 488/C, Mushtaq Ahmad 257/C (PW-3), Muhammad Munir 546/C by riding official vehicle being driven by Muhammad Khalid 362/¢ was present atsme State Vs. Muhammad Shahbaz , % ind prepared sealed sample parcel and parcel of remaining Charas and affixed seal with the monogram, ‘UA’. 10. On the contrary, the version put forth by the defence is that false case has been registered against the accused by police just to show departmental efficiency. 1. In order to prove its case, the prosecution examined as many as five witnesses. ‘The inve: tion of the case was conducted by Muhammad Afzal Javed SI (PW-5). Unceb Akhtar TSI (PW-2) and Mushtaq Ahmad 357/C (PW-3) appeared in the witness box and testified about the recovery of charas from the accused. Statements of Oe Unecb Akhtar TSI (PW-2), Mushtaq Ahmad 357/C (PW-3) and Muhammad Afzal Javed SI (PW-5) are crucial about the safe custody M KHANTBAKHAR, ind safe transmission of parcels and in determining the fate of the cas, 12, Muhammad Munir 546/C was also the member of police raiding party to whom the complaint (Exh PC) was handed over by the complainant and he took the said complaint to Police station and after registration of ease, he handed over the police Mle to the 1.0 (PW-5). Abdul Waheed 720/HC (PW-1) stated that he received complaint (Exh.PC) through Muhammad Munir 546/C. Uneeb Akhtar complainant (PW-2) stated that Muhammad Munir 546/C came with Muhammad Afzal Javed SI/1.0 (PW-5) (PW-3) also stated in line with the stat According to prosecution, Mushtaq Ahmad 357/¢ ement of complainant, Muhammad Afzal Javed SI/I.0 (PW-5) also stated that Muhammad Munir 546/C was accompanying him when he went at the scene of Securrence alter receiving the police file from Muhammad MunirBel ‘the State Vs. Muhammad Shahbaz 7 546/C. The said Muhammad Munir 546/C being also the member of police raiding party who also took the complaint to the police station was a material witness of the prosecution but the said Muhammad Munir $46/C_ was neither examined as a witness during the trial of the statement case nor he was cited as witness by the prosecution nor his was recorded by 1.0 u/s 161 Cr.P.C. The police official who transmits the complaint to police station for registration of FIR and an official who jots down the crime report u/s 154 Cr.P.C in the relevant register should be produced before the court as witnesses in order to eliminate all doubts qua the culpability of a drug paddler. Reliance is placed on PLJ 2022 Cr.C. 492 (DB) Lahore High Court Multan Bench. None production of aforesaid witness and the inexplicable conduct of the complainant (PW-2) not proceeding to police station himself to register the FIR are matters of concerns and collectively of doubt. 18. Mushtaq Ahmad 357/C (PW-3) being recovery witness has been examined by the prosecution who showed his ignorance about certain material aspects of the case which he should have remembered to prove the genuiness of recovery proceedings. I quote few of them as under:- “Ido not remember the time when he reached Jinnah, Chowk. I do not remember the colour of wearing clothes of spy informer. I do not remember the colour of wearing clothes of the accused at the time of his arrest. I do not remember as to whether mobile phone was recovered or not from the pocket of 97-1022 accused. 1.D card of the accused was recovered during his jecrAM KHAN'SAKHAR personal search and the name of accused was mentioned in the essions Judge proceedings after perusing his CNIC. I do not remember as to whether one joint parcel of charas and I.D card was made or ILD card was kept separately. I do not remember the colour of packet from which charas was recovered. I do not remember as to whether the packet i.e. shopper was separately weighed or not and as to whether same was taken into possession or not.” ‘The purported lack of knowledge of the recovery witness about the aforementioned material aspects which he ought to have remember while having a photographic recollection of other insignificant things has made the recovery proceedings doubtful. I is also noted that in the proceedings made by the complainant, it was not mentioned anywhere that the ILD card was also recovered from the custody of the accused.Ol awe” ‘AM KHAN BAKRAI ge state V5- Muhammad Shahbaz 6) 1c has been held in case titled “Minhaj Khan Vs, The State (2019 SCMR 326” that: “The discrepancies in the testimonies of the two witnesses; the purported lack of knowledge about certain things which they ought to have remembered while having a photographic recollection of other insignificant thing; not knowing those things which they should have; the fact that Constable Jehanzeb Khan reached the police statement before the complainant PW-2; the non-production of Constable Jahanzeb Khan who took the written complaint and was an eye witness of the occurrence and of the recovery memorandums; and the inexplicable conduct of the complainant PW-2 in not proceeding to the police statement himself to register the FIR are matters of concen and collectively of incredulity. The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable doubt, or, at worst, that the petitioner was involved in a false case for ulterior reason.” 14, It is also noticed that the recovery witness Mushtaq Ahmad 357/C (PW- 3) made improvements in his statement before this court in order to strengthen the prosecution case. He (PW-3) stated that he got mentioned in his statement (Exh.DA) that ID card of the accused was recovered during his personal search. Confronted with Exh.DA, where it is not so recorded. He (PW-3) stated that he got mentioned in his statement Exh.DA that spy information was furnished when they were at Qabula Bazar. Confronted with Exh.DA, where it was not so recorded. He (PW-3) stated that he had got recorded in his statement that recovered charas was weighed through electronic scale. fonfronted with Exh.DA, where it is not so recorded. He (PW-3) stated ie iSiions Judgehat the weighing scale was of silver colour and he (PW-3) had got ia wala recorded in his statement this fact. Confronted with Exh.DA, where it is not so recorded. He (PW-3) stated that he had got mentioned the colour of recovered charas as dark brown in his statement. Confronted with Exh.DA, where it is not so recorded. In this way, it is clear that the recovery witness improved his statement. Facts introduced by the witnesses through dishonest improvement during his evidence before the court does not carry any legal value rather such conduct has raised doubt regarding evidentiary value of the statement of such witness and as such his statement cannot be relied upon for recording conviction against the accused, °: we‘The State Vs. Muhammad Shahbaz 15. One of the fundamental as spects of the narcot is the safe custody, The prosecution was to establish t recovered from the accused, taken into custody, place TICS Substance hat charas wag ed in Malkhang and then was transmitted to PFSA, Lahore, where after, its re Which links the accused, narcotics substances and Ginally the report of the chemical analysis, to prove and connect the accused with the narcotics substance. 16. Safe custody. Muhammad Afzal Jave ‘d SI/L.O (PW-5) examined under Public prosecutor's shadow, did not utter a single word in his was denied by the accused. Itis also noted that the transmission of sample in the offi ce of PFSA should have been completed within 72 hours from its preparation but it is matter of record that the sealed sample parcel was prepared on 28.03.2021 and was transmitted in the Office of PFSA on. 30.03.2021. There is no explanation on. record that Qe! why the sample parcel was not transmitted in the office of PFSA within -72aPeriod prescribed by rules. There is no evidence on record that there bahhat was an emergency or any other problem due to which the ‘sample parcel KAM KHAN BAKHAR Sessians Judge°Wld not have been submitted in the office of PFS, Idi. Sessions a3 ‘A. Admitted laps on veal the part of police/prosecution to have sent the recovered contraband Substance for chemical analysis within the period stipulated under the law has made the case against the accused as doubtful one. Substantial delay has not been adequately explained in the prosecution evidence Reliance can be placed on 2019 YLR 1282 Islamabad 17. Even otherwise, the incorporation of arrival and departure by the police officer in register No.2 maintained under Police Rules 1934 is mandatory but copy of any such rapt has not been annexed with the file. Such entries provide corroboration qua the alleged recovery of narcotic and arrest of accused and absence of such entries in the relevant register create doubts. Similarly entries regarding depositing and removal of case property subsequently is required to be~~ he State Vs. Muhammad Shahbaz (8) entered in register No.19 as provided in Rules but copy of such entry has also not been annexed with the file, Statement of police official who took the complaint to the police station for registration of case was also to be recorded by the 1.0 but same was not recorded. While transmitting the samples to forensic lab, the process provided in Rules was to be adhered to qua obtaining road certificate and copy of such road certificate should be made part of case file but no such road certificate is available on file. 18. It is well settled principle of law that if the quantum of andard of evidence must sentence is high and the penalty is strict, th also be high. The evidence adduced should be cogent, convincing and .ce reflects that the confidence inspiring. A careful scrutiny of the evider prosecution case is filled with paradoxes and anomalies. It is settled proposition that if single doubt arises, the benefit of same is extendable to the accused as a matter of right and not a concession, placed in juxtaposition, therefore, when entire arities are floating on the record. The principle prosecution evidence is iNlegalities and irregul laid down by Hon’ble Superior \ilty, but should not convict Guidance in this regard is also solicited from case repo? Courts in such sitiuation, is that courts ought to let off 100 gui one innocent person. rt as 2014 YLR 1881 Lahore. 19. Resum 5 that the prosecution ‘e of the above discussion i in numerable doubts, the benefit of which is given with hereby acquitted of the ‘Muhammad Shahbaz, who is he be released if not required in any ‘aras be confiscated/destroyed case is replete to the accused charge. He is in police custody, other oriminal case. Case Property ch after the period of appeal or revision 88 the case may. A copy of the wnt be sent to the Incharge Prosecution, Pakpattan. File be judgme ‘consigned to the record room after its due com pletion and compilation. Hakam Khan Bakhar, Announced: 27.10.2022 Addl. Sessions Judge, Judge Special Court (CNSA) ‘Arifwala. It is certified that this judgment consists of Eight (08) Pages reach page has been dictated, read, corrected and signed By me Hakam Khan Bakhar, Addl, Sessions Judge, Judge Special Court (CNSA) ‘Arifwala