Mst. Bisma vs State

Judgment Sheet

IN THE LAHORE HIGH COURT

RAWALPINDI BENCH, RAWALPINDI

JUDICIAL DEPARTMENT

Crl. A. No. 664 of 2024 (Mst. Bisma alias Sana vs. The State)

JUDGMENT

Date of hearing: 17-03-2025 Appellant by: Mr. Khadim Hussain Malik, Advocate State by: Mr. Naeem Akbar, Deputy Prosecutor General with Allah Ditta, S.I.

TARIQ MAHMOOD BAJWA, J:- Appellant (Bisma alias Sana) has been tried by the learned trial Court in case FIR No.600 dated 07.09.2023 registered under Section 9(1)-6c of CNSA 1997 at Police Station Dina, District Jhelum and was convicted and sentenced vide judgement dated 15.05.2024 in the above said offence as under:- Bisma alias Sana (appellant) 9(1)-6c of CNSA Sentenced to 10-years R.I.

1997 with fine Rs.1,25,000/- and in default thereof to further undergo 02-months S.I. with benefit of section 382-B Cr.P.C.

2.Hearkened and record perused.

3.Recovery; Heroin 1100-Grams.

4.Muhammad Sajjad/A.S.I. (PW.1), being complainant while appearing before the trial Court stated in his statement that on 07.09.2023 at 05:45 am, he along with Iqra Pervaiz 88/LC (PW2), Saddam Hussain 612/C and Muhammad Ali Adil 178/HC was present at Sabzi Mandi in connection with patrolling duty, he received a spy information that a lady present at Mohalla Liaqat Town, was selling narcotics, raiding party was constituted and proceeded to the place of occurrence. At 04:45 am he reached at the spot, lady was present in a vacant plot, who was apprehended with the help of accompanying lady constable and on her search heroin weighing 1100-grams was recovered. Iqra Pervaiz 88/LC

(PW2) has reiterated almost the same story. The complaint (Exh.PB) indicates that one Muhammad Ali Adil 178/HC took the same to the police station to set the criminal law into motion, F.I.R. (Exh.PC) was lodged, in addition to the said key role, per prosecution case, the said Head Constable approached Matloob Hussain S.I./I.O.(PW.5), after that the said S.I./I.O. attracted and started the process of investigation, who stated in his examination-in-chief that he recorded the statement of Iqra Pervaiz 88/LC (PW2) and Saddam Hussain Constable. No reason whatsoever came on record that why the statement u/s 161 Cr.P.C. of Muhammad Ali Adil Head Constable, was not recorded. Neither the statement u/s 161 Cr.P.C. of Muhammad Ali Adil Head Constable was recorded nor he was introduced as witnesses in the list of witnesses of report u/s 173 Cr.P.C. In many cases, the Hon’ble Supreme Court had given the benefit of doubt in addition to other facts, that prosecution had not produced sample bearer in the witness box. No doubt, in case of non- appearance of sample bearer, in the report of Chemical Examiner, different columns are available, one of the same is relating to the officer who submitted the parcels/ sample bearer. The Hon’ble Supreme Court had not considered that the entry was enough and had cured the factum of non-production of sample bearer and had recorded ratio that it was necessary for the prosecution to produce the sample bearer. On the same analogy, the document/FIR (Ex.PC) and statement of the Duty Officer Muhammad Maroof (PW.3) is not enough to prove the vital evidence of Muhammad Ali Adil Head Constable. At the cost of repetition, he was the witness relating to the fact, he had approached the Duty Officer for registration of FIR and thereafter communicated the FIR to the I.O. and only then process of investigation had started. In this regard the guidance is solicited from the case law reported as Minhaj Khan vs. The State (2019 SCMR 326). In addition to the said legal deficiency/omission to prove the vital fact, certain discrepancies pointed out by learned counsel for appellant are not ignorable and shatters their credibility.

5.It is a matter of record that heroin was recovered from white coloured shopping bag, which has not been tendered in evidence with exhibit number creating doubt in the prosecution story, which is otherwise neither plausible nor believable. It is worth observing here that the

appellant is not required to create a series of dents and doubts in the prosecution case but for giving benefit of doubt if a single doubt is created even then the defence is entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. In this behalf reliance is respectfully placed on Muhammad Akram vs. The State (2009 SCMR 230). In Tariq Pervez vs. The State (1995 SCMR 1345).

6.For the foregoing reasons, the criminal appeal in hand is accepted, conviction and sentences of the appellant awarded by the trial Court vide impugned judgment are hereby set-aside. Bisma alias Sana (appellant) is acquitted of the charge and directed to be released forthwith if not required in any other case.

(SADAQAT ALI KHAN) (TARIQ MAHMOOD BAJWA)

Judge Judge *M.S.Aleem*

Approved for reporting

Judge Judge