Mr. Justice Sardar Muhammad Sarfraz Dogar in his judgment has decided the issue regarding contraband substance and probability of tampering during transit for chemical examination in Criminal Appeal No. 553 of 2009.
1. By virtue of this appeal under Section 48 of the Control of Narcotic Substances Act, 1997, the State has questioned the vires of judgment dated 21.3.2009, passed by learned Judge Special Court CNS, Faisalabad, whereby, he acquitted the respondent bestowing upon him benefit of doubt in case FIR No.27/2007, dated 15.9.2007, under Section 9(c) of Control of Narcotic Substances Act, 1997, registered at Police Station ANF, District Faisalabad.
2. According to the prosecution case as set forth in the F.I.R. (Exh.PC/1) is that on receipt of an information to the high-ups of ANF, a raiding party headed by Siddique Gohar Khan A.D. was constituted, to conduct raid upon Chand Medical Store situated at Subhan Allah Chowk Ghulam Muhammadabad, Faisalabad owned by the respondent. On 15.9.2007, at about 7:00 A.M. the raiding party reached at the said Medical Store and person standing there was apprehended, who disclosed his name as Ali Asghar. During interrogation, said Ali Asghar produced a carton containing 50 bottles of concentrated opium liquid total weighing 5 kilograms to the raiding party. Out of recovered bottles, one bottle was separated for chemical analysis. Resultantly, Jahangir Khan Inspector/SHO (PW-2) drafted the complaint (Exh.PC) and sent it to the Police Station through Zakir Hussain constable for registration of criminal case.
3. After the registration of the FIR, the investigation was also regulated by Jahangir Khan Inspector (PW-2), who, after the usual investigation finding the respondent guilty submitted the challan/report under Section 173 Cr.P.C. in the Court of the competent jurisdiction.
4. The learned trial Court after compliance of provision of Section 265-C Cr.P.C. framed the formal charge against the respondent to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case has examined as many as four witnesses. Muhammad Arshad constable (PW-1) transmitted the sample parcel to the office of Chemical Examiner, Lahore. Jahangir Khan Inspector (PW-2) was the complainant as well as Investigating Officer of the case. Muhammad Shafique H.C. (PW-3) was the witness of recovery and Numaan Ghous S.I. (PW-4) chalked out formal FIR and also deposed about safe custody of sample parcel and case property. The prosecution has also produced report of Chemical Examiner (Exh.PG) in documentary evidence.
5. At the conclusion of prosecution evidence, learned trial court recorded the statement under section 342 Cr.P.C. of the respondent wherein he denied each and every piece of prosecution evidence while pleading his innocence. The respondent did not opt to make any statement on oath in terms of Section 340(2) Cr.P.C. however, he produced copy of order dated 04.11.2008 passed by the Hon’ble Supreme Court of Pakistan in criminal petition No.215/L of 2008 as Exh.DA in defence evidence.
6. After hearing the arguments advanced by the learned counsel appearing on both sides, the learned trail Court, while evaluating the evidence available on record, found the version of the prosecution tainted with shadow of doubt, which resulted into acquittal of the respondent.
7. The learned Law Officer argued that a huge quantity of contraband has been recovered from the possession of the respondent and the prosecution has proved its case beyond any shadow of doubt by way of advancing cogent, reliable, confidence inspiring evidence but the learned trail Court has not appreciated it in accordance with the law. Further adds that the impugned acquittal judgment is passed on wrong premises of law and facts being based on misreading and non-reading of evidence, thus, liable to be set aside and the respondent may be convicted and sentenced accordingly.
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