2003 PLP 259 (MLD)

Sher Khan, appellant, faced his trial in the Court of learned Additional Sessions Judge/Judge, Special Court, Peshawar on the charges under section 9 of the Control of Narcotic Substances Act levelled against the appellant vide F.I.R. No.706, dated 27‑8‑1999, Police Station, Gul Bahar. The learned trial Judge after conclusion of the trial, found the accused‑appellant guilty of the charge and accordingly convicted him under section 9, C.N.S.A. to the sentence of 10 years R.I. with a fine of Rs.1,00,000 or in default of payment of fine to undergo S.I. for one year. The appellant, being dissatisfied with the above mentioned conviction and sentence, has preferred the instant appeal.

2. The prosecution case against the appellant is that on 27‑8‑1999 ,it about 12‑30 hours, Muhammad Shoaib Khan, S.‑I. alongwith Murad Khan and Fazle Rabbi, Constables, was present at General Bus Stand, Peshawar in connection with Mobile Gusht when in the meantime a person was checked on suspicion, from whom personal search 5 Kgs. of Charas was recovered, which he was having in a black shopping bag in his hand. The person disclosed his name as Sher Khan son of Abdul Ghani, resident of Kabul. From the whole lot the 1.0. separated 4 grams of Charas for chemical analysis and sent the Murasila, Exh.PA/l, for registration of the case. The recovery memo. with regard to the alleged Charas was witnessed by Murad Khan and Fazle Rabbi, Constables as marginal witnesses.

3. P.W.2 Muhammad Bashir Khan, I.H.C., on receipt of Murasila, registered F.I.R., Exh.P.A., against the accused.

4. On completion of investigation, P.W.1 Masood Ahmad Khalid, S.H.O., Police Station, Gul Bahar submitted complete challan against the accused appellant.

5. At the trial, the prosecution produced 4 witnesses in support of its case, including the complainant/Investigating Officer Muhammad Shoaib Khan and P.W. Fazle Rabbi, one of the marginal witness to the recovery memo. Exh.P.C.

6. We have heard the learned counsel for the parties and also gone through the material placed on record.

7. P.W. Fazld Rabbi, one of the marginal witness to the recovery memo. in his statement has stated that 5 slabs of Charas were recovered from the possession of the accused‑appellant, but when the sealed parcel was opened in the Court under the orders of the learned trial Judge, it contained 20 slabs of Charas instead of

5. The Investigating Officer (P. W.4) when questioned about the number of slabs taken into possession by him from the possession of the accused, he was unable to give the exact number of slabs of Charas recovered from the possession of the accused. The other marginal witness to the said recovery, was, however, not produced by the prosecution. Both the witnesses have admitted that the sample drawn from the said recovered substance was taken from one slab and not from all the slabs. In these circumstances, the recovery in question becomes highly doubtful in the circumstances stated above. Moreover, the recovery in question was effected at General Bus Stand which is thickly populated place, but none from the public was associated by the Investigating Officer with the said recovery.

8. The prosecution case is full of doubts particularly in relation to the quantity of Charas of slabs recovered from the accused‑appellant and therefore, the accused‑appellant is entitled to be extended the benefit of doubt.

9. The appeal in hand is, therefore, accepted, the impugned judgment of the learned trial Court is set aside and the accused‑appellant is acquitted of the charge. He shall be released from jail forthwith, if not required in any other case. H.B.T./617/P . ??????????? Appeal accepted.