1. Muhammad Ali son of Hafeez ullah, the appellant was involved in case F.I.R. No.282-2014 dated 21.04.2014, offence under Section 9 (c) of The Control of Narcotic Substances Act, 1997, registered at Police Station, Saddar Sialkot and was tried by the learned Additional Sessions Judge, Sialkot. The learned trial court seized with the matter in terms of judgment dated 28.10.2014 convicted the appellant under Section 9 (C) of The Control of Narcotic Substances Act, 1997 and sentenced to undergo rigorous imprisonment for three years along with fine of Rs.50,000/-and in default of payment of fine-amount, the appellant will further undergo Simple Imprisonment for six months. The benefit of Section 382-B of Cr.P.C was also extended in favour of the appellant. The appellant has assailed his conviction through filing the instant appeal.
2. The prosecution story as alleged in the F.I.R. (Ex.PA) lodged on the complaint (Ex.PA/1) of Kamran Baig, S.I. (PW-3)/complainant is that on 21.04.2014, he (PW-3) along with Muhammad Shahbaz 2076/C, Zulfiqar Ali 836/C (PW-4) laid a barricade at Bismillah Chowk and received a secret information that a pathan while carrying narcotics in a plastic bag was coming in Doburji Araianwala adjacent to Gulshan Park and if a raid was conducted, he could be apprehended. On receiving of spy information, he (PW-3) along with raiding team, reached at the spot and over powered the accused at Doburji Araian and on asking, the accused disclosed his name as Muhammad Ali son of Hafeez ullah, Caste Pathan, resident of Shahoo Tehsil, Kalaam District, Sawat. On personal search, garda/charas weighing 1350 grams wrapped in black plastic bag was recovered which was taken into possession vide recovery memo (Ex.PB) and sealed by embossing a seal of K.B. Thereafter the complainant (PW-3) handed over the case property to Muhammad Shahbaz 2076/C for onward transmission to the police station for further proceedings.
3. On receiving of complaint (Ex.PA), formal F.I.R (Ex.PA/1) was chalked out by Muhammad Riaz, S.I. (PW-5). After registration of F.I.R., the investigation was entrusted to Muhammad Nawaz, S.I. (PW-6), who inspected the place of occurrence, prepared the site plan (Ex.PC) and recorded the statements of prosecution witnesses under Section 161 of Cr.P.C. Having found the accused guilty, the Investigating Officer (PW-6) challaned the accused and sent him to judicial lock up.
4. The learned trial court formally charge sheeted the appellant on 03.06.2014, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as six witnesses. Kamran Baig, S.I. (PW-3) is complainant, Muhammad Riaz, S.I. (PW-5) chalked out the formal F.I.R., Muhammad Nawaz, S.I. (PW-6) is Investigating Officer whereas Zulfiqar Ali 836/C (PW-4) is witness of the recovery.
5. On 10.10.2014, the learned Deputy District Public Prosecutor gave up Muhammad Shahbaz 2076/C and closed the prosecution evidence after tendering the report of Chemical Examiner as (Ex.PD).
6. The appellant was also examined under Section 342, Cr.P.C. wherein he opted not to lead defence evidence and refused to appear as his own witness in terms of Section 340(2) Cr.P.C in disproof of allegations levelled against him and while replying to a particular question that why PWs have deposed against him, the appellant made the following deposition:
“I am innocent. I am resident of District Sawat. I am Pathan by caste. On 20.04.2014, I came to Sialkot to see my relatives. Kamran Baig, S.I. apprehended me from the Bus Stand Sialkot on the basis of suspicion and took me in the police station. Kamran Baig, S.I. demanded illegal gratification, on my refusal, he foisted the alleged recovered charas upon my person just to take revenge and to show his fake efficiency. The PWs have deposed against me as being subordinate of Kamran Baig, S.I.”
7. After hearing the arguments advanced by the learned counsel appearing on both sides, the learned trial court, while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.
8. Heard. Record perused.
9. After a careful scrutiny of the material available on record, we come to the conclusion that the prosecution has not been able to prove beyond reasonable doubt that charas-garda was recovered from the possession of the appellant. The charas-garda weighing 1350 grams stated to have been taken and sealed at the spot on 21.04.2014, however, prosecution witnesses, PW-3 and PW-4, are contradicting the same.
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