2004 PLP 1051 (YLR)

3. P.W.4 has carried out the entire investigation including search of the motor-car, recovery of the narcotics, arrest of the accused, weighment of the narcotics and preparation of Murasila etc. whereas P.W.5 is attesting witness to the recovery memo. through which narcotics were taken into possession.

4. Our this judgment shall dispose of three criminal appeals out of which two have been sent from Jail bearing Criminal Appeal No.457 of 2002 (Khanzad Gul v. The State) and Criminal Appeal No. 11 of 2003 (Muhammad Riaz v. The State) were both represented by Mr. Roohul Amin, Advocate whereas Criminal Appeal No.415 of 2002 (Imran-ud-Din v. The State) is represented by Mr. Noor Alam Khan, Advocate, as all these three appeals are the outcome of single judgment of conviction dated 23-10-2002 authored by learned Judge Special Court Nowshera. Vide impugned judgment all the three appellants have been sentenced to life imprisonment under section 9 CNSA whereas one of their co-accused Muhammad Abid has been acquitted. It is worth noticing that Muhammad Abid was discharged by the Investigating Agency under section 169, Cr.P.C. and was placed in Column No.2 of the challan but was given notice by the trial Judge and was tried though ultimately acquitted. Another co-accused namely Khushdil has also been acquitted as he was not allegedly arrested on the spot and was only charged by some of his co-accused, that too, in statement made to the police. Acquittal of Muhammad Abid and Khushdil is not challenged.

5. In this case, if on one hand there is evidence of P.W.4 and P.W.5 to state that 15 K.Gs. of heroin was recovered from the possession of three appellants but on the other we have before us statement of each of the appellants recorded under section 340(2), Cr.P.C. on oath. In addition to the examination of the accused as their own witness, they have also examined Gul Akbar (D.W.1) and Said Rasool (D.W.2). Former runs a tea hotel in the vicinity of the place of alleged barricade adjacent to which is the shop of the latter.

6. We have heard learned counsel appearing for the appellants and Mr. Tariq Kakar, Advocate appearing for ANF. In view of defence evidence led by the accused, we asked Mr. Tariq Kakar, Advocate as to what are the reasons that we shall disbelieve the two defence witnesses who are neither related to the appellants nor their co-villagers nor have any ulterior motives against the ANF Staff.

7. If in a case, be that of the narcotics, the prosecution wants us to believe that the prosecution witnesses are truthful so similar will be the situation where an accused has been examined as defence witness, he can vehemently argue that evidence led by the defence witnesses should be believed as against prosecution evidence.

8. It is well-established principle of law in criminal jurisprudence that in every criminal case burden of proof to prove the charge is on the prosecution and even if in some special situation burden is shifted to the accused, there is again a very thin line between burden of proof to be discharged by the prosecution and by the defence. It is for the prosecution to prove the charge beyond all reasonable doubts whereas if the burden is on the accused, he is only to create a reasonable doubt in the case of the prosecution.

9. Seen in view of above principle or criminal jurisprudence in this case if P.W. Said Rahat and Raza Khan wants us that we shall believe them but in juxtaposition to their statements, there are two defence witnesses. If the ANF Staff has got no reason to falsely charge the appellants similar is the case of two defence witnesses as to why they shall defend the appellants if they are the real culprits.

10. Each of the appellant had appeared in his own defence and stated that they were never travelling in motor-car nor any narcotics were recovered from them and they have been falsely implicated, but none of them has been cross-examined to challenge their such versions. The two D. Ws. have also not been cross-examines by the prosecution successfully.

11. Muhammad Abid one of the co accused according to the evidence of the prosecution who was similarly occupying the motor-car was held innocent by the Prosecution Agency on the ground that he had no knowledge of the contents of the bags but such was opinion based on inference of the Investigating Officer, there should have been evidence against the appellants that they had some community, of interest inter se and that they were having constructive possession of the narcotics recovered.

12. Because of defence evidence produced in this case, coupled with the statements of the accused under section 340(2), Cr.P.C., the story put forward by the defence is not only reasonable rather, has created reasonable doubt in the case of the prosecution; therefore, they are extended the benefit of doubt. Conviction and sentence of the appellants recorded by the learned trial Judge are set aside and they are acquitted of the charge. They be released from jail forthwith, if not required in any other case. H.B.T./39/P Appeal accepted.