Mst. Shaheen VS The State

Stereo H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, RAWALPINDI BENCH.

JUDICIAL DEPARTMENT

Cr. Appeal No. 369 of 2012 (Mst. Shaheen v. The State)

JUDGMENT

Date of hearing _______13.01.2014__________________________________ Appellant by: Mr. Haider Mehmood Mirza, Advocate. _________________ Respondent by: Ch. Muhammad Sarwar Sidhu, Addl. Prosecutor General with Muhammad Aslam, ASI.

Aalia Neelum, J.- Appellant-Mst. Shaheen was tried in case F.I.R. No. 57 dated 23.2.2012, offence under Section 9-C of the Control of Narcotic Substances, 1997 registered at Police Station Saddar Chakwal. The learned Addl. Sessions Judge, Chakwal vide judgment dated 18.7.2012 convicted and sentenced the appellant as under:

“under section 9-C of CNSA, 1997 and sentenced to R.I. for three years with fine of Rs.1,00,000/-, in default thereof to further undergo S.I for six months.”

2.Briefly stated facts of the prosecution case as alleged in F.I.R. (Exh.PA/1) are that on 23.2.2012 at 12.15 noon, on the fateful day, Zulfiqar Muhammad Bazeed, Inspector/SHO (PW-5) along with Khawar Saeed, ASI (PW-4), Khalid Masood HC-126, Shahzad Ahmed C-797, Ahsan Farooq C-827, Rizwana Siddiq Lady Constable No.769, Bushra Bibi Lady Constable No.572 and other police officials were present near Balkassar Interchange in connection with patrolling and

search of offenders, when a Toyota Hiace bearing registration No.3099/LES came from the side of Peshawar and stopped there. From the said vehicle, a woman who disclosed her name as Mst. Shaheen wife of Muhammad Safdar, resident of Dalwal, Police Station Choa Saidan Shah alighted who was carrying bag of black colour in her right hand and started to leave hurriedly. On suspicion, she was stopped through lady constable and her bag was got searched through Rizwana Lady Constable whereupon three packets containing Charas wrapped in the veil were recovered. On weighing, charas was found 3750 grams and was taken into possession vide recovery memo (Exh.PC). On further personal search of the accused, one mobile phone along with sim P2, cash amount of Rs.150/- P3 and the other valuing Rs.50/- P4 were recovered. The same were taken into possession vide recovery memo Exh.PD. The complainant (PW-5) conducted the investigation of this case and he drafted complaint (Exh-PA) and sent the same to Police Station through Khalid Masood 126/LHC for registration of formal F.I.R. (Exh-PA/1). The case was registered under Sections 9-C of the Control of Narcotic Substances Act, 1997. Said Zulfiqar Muhammad Bazeed Inspector/SHO (PW-5) summoned Shoaib Hayat, SI (PW-2) at the spot and handed over the case property, police papers and the person of the accused to him who conducted further investigation of this case. PW-2 prepared rough site plan Exh.PB and recorded the statements of PWs under section 161 Cr.P.C. He produced the accused before the learned Illaqa Magistrate and sent her to judicial lock up. The Investigation Officer deposited the case property with Moharrar Malkhana for its safe custody and onward transmission to the quarter concerned. After completion of investigation, Investigation Officer prepared the report under section 173 Cr.P.C. and recommended for trial against the accused

where he was formally charged on 09.3.2012 by the learned Additional Sessions Judge, Chakwal to which he pleaded not guilty and claimed trial.

3.At trial the prosecution produced as many as five prosecution witnesses to prove charge against the accused. In addition to oral evidence the prosecution also tendered in evidence report of Chemical Examiner Exh.PE and on 11.7.2012 the leaned DDPP given up PW, namely, Afrasiab, ASI being unnecessary and closed the prosecution evidence.

4.On conclusion of prosecution evidence, statement of the appellant was examined under Section 342 Cr.P.C. in which she denied each and every piece of prosecution put to her. She professed innocence and pleaded false implication. She while answering to the question as to why the P.Ws. have deposed against her, she replied as under:

“I belong to a very poor family and my husband is a labourer at a coal mine. I have minor child and am a household lady. I cannot even imagine indulging myself in such a heinous crime. Fact of the matter is that I was traveling in the said vehicle wherein several other passengers were also boarded. However, the police with malafide intention and in order to show its fake efficiency, falsely booked me in this case being Pakhtun. I have no concern whatsoever with the alleged bag or the alleged recovered Charas. The same has been planted upon me by the police dishonestly. Neither I was subjected to personal search nor was anything recovered from my possession. The PWs have deposed against me falsely being subordinate to I.O. I am innocent.”

5.The appellant did not opt to make statement on oath as envisaged under Section 340(2), Cr.P.C.

6.On conclusion of the trial, the appellant was convicted and sentenced as mentioned in Para No.1 of the judgment. Feeling aggrieved, the appellant filed the instant Criminal Appeal bearing No.369/2012 against the impugned judgment dated 18.7.2012 passed by the learned Addl. Sessions Judge, Chakwal.

7.Learned counsel for the appellant has contended that no recovery has been effected from the appellant and if any, the same is planted one; further adds that the prosecution has withheld best piece of evidence in the shape of statement of Mst.Rizwana Siddiq, Lady Constable and even she was not shown as prosecution witness in the calendar of witnesses. Further adds that the remaining evidence is not sufficient enough to connect the appellant with the charge and as such the appellant be acquitted of the charge.

8.Conversely the learned Addl. Prosecutor General contends that huge quantity of 3750 grams Charas was recovered from possession of the appellant. Adds that the recovery of narcotic substance and report of Forensic Science Laboratory being positive fully connect the appellant with the commission of alleged crime. It was also contended that the witnesses of recovery account being government officials had any ill-will against the appellant in order to involve her falsely and as such the appellant is not entitled to any exception and the learned trial court has rightly sentenced the appellant, which is in exact proportionate to the act committed by her.

9.We have anxiously attended to the arguments of the learned counsel for the parties and have carefully reviewed the entire evidence which has been produced by the prosecution, statement of the accused/appellant recorded under Section 342 Cr.P.C. The F.I.R., shows that accused/appellant was stopped on suspicion through lady Constables and the bag of accused-appellant was got searched through Rizwana Siddiq, Lady Constable No.769, whereupon, three packets containing Charas wrapped in the veil were recovered. PW-4 Khawar Saeed, ASI and PW-5 Zulfiqar Muhammad Bazeed, Inspector/S.H.O., admitted that bag of the appellant was searched by Mst.Rizwana Siddiq, Lady Constable. There is substance in the contentions of the learned counsel for the appellant that prosecution has withheld best piece of evidence in the shape of statement of Mst.Rizwana Siddiq, Lady Constable. Even she was not shown as prosecution witness in the calendar of witnesses. No doubt the police officials are competent to witness the recovery memos evidencing the recovery of the case property. Nevertheless, in the instant case apart from PW-4 and PW-5, Mst.Rizwana Siddiq, Lady Constable was associated with the search of offender, but neither she was shown as prosecution witness nor brought into the witness box to testify the factum of search of the bag of recovery, which is base of the case. A result of search should not depend upon the evidence of witnesses of recovery memo but also upon the evidence of the person who actually made search. Even otherwise the prosecution has to stand on its own legs and once it takes a specific plea regarding “search” the burden shifts on the prosecution to prove it to the hilt without any dent. Reliance has been placed on the case reported as Muhammad Azam v. The State (2003 P Cr. L. J. 1790) and The State through Advocate-General v.

N.W.F.P. Peshawar (2002 P Cr. L. J. 377) wherein it has been observed as under:-

“Burden of proof---The requirement of the criminal law is that the prosecution is duty- bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, it must go to the accused and it sufficient to discredit the prosecution story and entitles the accused for acquittal.”

More over, best evidence has been withheld in the instant case as Mst.Rizwana Siddiq, Lady Constable should have been produced but instead of that, PW-4 and PW-5 have been produced which caused damage to the prosecution case to a great extent and “search of bag” as alleged by the prosecution is not proved. In such cases and especially when the parties either withhold the truth from the Court or transgress the truth, the Court can discover the truth and sift the grain from the chaff as held in Shahid Raza and another v. The State and another (1992 SCMR 1647). It is also well settled that if there is any discrepancy, irregularity or illegality in the investigation, the defect appearing in the investigation has not vitiated the trial but the case is to be decided on the evidence produced before the court. In this view of the matter, the possibility that recovered Charas along with bag has been planted upon her can not be excluded. The remaining evidence is not sufficient enough to connect the appellant with the charge. In our independent assessment, we feel that the prosecution has not been able to prove its case beyond reasonable doubt.

10.Keeping in view the facts and circumstances of the case, Crl. Appeal No.369 of 2012 is accepted. Conviction of the appellant,

namely, Mst. Shaheen under section 9 (c) of the Control of Narcotic Substances Act, 1997 is set aside. She is in the judicial lock up and be released forthwith, if not required in any other case.

(KH. IMTIAZ AHMAD) (AALIA NEELUM)

JUDGE JUDGE

Approved for reporting

JUDGE

Hamid/*