2023 PLP 36 (YLRN)

LAL JAN KHATTAK, J.

This appeal is directed against the judgment dated 11.05.2019 of the learned Judge Special Court / ASJ-V, Peshawar, delivered in case FIR No. 621 dated 05.11.2016 under section 9(c) of the Control of Narcotic Substances Act, 1997 of Police Station Mattani, Peshawar, whereby the appellant has been convicted and sentenced to suffer rigorous imprisonment for life with fine of Rs. 70,000/-(seventy thousand) or in default wnereof to further undergo six months SI. Benefit under section 382-B, Cr.P.C. was extended to him.

2. Brief facts of the case are that on 05.11.2016, complainant Ijaz Nabi SI, (PW-5), Arif Khan ASI, Musafir 573, Iltaf 4775 and others were present at Arbab Tapoo check post when received spy information that contraband through Flying Coach bearing registration No. RIS-2122/Punjab would be smuggled from Dara Adam Khel to Punjab. Upon such information complainant of the case arranged nakabandi at the spot when in the meanwhile, the spotted vehicle reached there which was stopped and on cursory investigation driver of the vehicle disclosed his name as Zaki Ullah son of Najib Ullah. On search of the Flying Coach 55 packets of charas pukhta concealed in secret cavities made beneath the floor of the vehicle were recovered. On weighment, each packet turned out to be of 1000/1000 grams. Thus total 55000 charas was taken into possession by the complainant. From the recovered stuff the complainant separated 05 / 05 grams from each packet into parcels Nos. 1 to 55 for the purpose of FSL while rest of the contraband was kept in separate parcel. On the basis of ibid recovery, complainant of the case drafted murasila (Ex.PA) which later on was incorporated into formal FIR (Ex.PA). It is pertinent to mention here that during investigation Salman was booked and made co-accused in the case.

3. After completion of investigation, the case was put in court for trial which indicted the accused for commission of the offence to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced and examined 10 witnesses in all, whereafter statements of the accused were recorded wherein co-accused professed his innocence and didn't produce any defense evidence nor examined on oath, while the appellant in support of his defense plea produced Ishfaq Ahmad as DW-1, Iqbal Rehman as DW-2 and recorded his statement on oath as DW-3. The learned trial court, after conclusion of the trial, found the appellant guilty of the charge and while recording his conviction sentenced him as mentioned above which he has impugned through the instant appeal while acquitted co-accused Salman of the charge.

4. Arguments heard and available record gone through

5. Perusal of the available record would show that the seizing officer/ complainant ljaz Nabi (PW-5) has shown recovered huge quantity of contraband i.e. 55 KGs charas, (pukhta) from the vehicle being driven by the appellant at the relevant time but pertinent aspect of the case which has blurred the prosecution case is the fact that constable Musafar Khan who while appearing before the Court as (PW-2) admitted in his cross-examination that the secret cavity was opened through mechanic, who was called by the S.H.O. whereas the complainant who appeared as (PW-5) stated that he himself had opened the secret cavity with the help of tools on the spot. This contradiction in the statements of the complainant and the marginal witness to the recovery memo. i.e. PW-2 is not so slight in nature to be ignored as both the witnesses have advanced a stance which is quite different from each other on very important aspect of the case. Even if it is assumed for the sake of arguments that the cavity was opened by a mechanic then in that situation the mechanic was to be examined being a material witness which has not been produced. Besides, another pertinent aspect of the case is that there is no material on case file to show that who took the appellant to the police station from the spot. Though the complainant has stated that before arrival of the Investigation Officer he had sent murasila and the accused to the police station through constable Altaf No. 4775 but when Shaukat Khan ASI, appeared before the Court as (PW4) he stated that he had only received the murasila sent by the complainant through constable Altaf No. 4775, and incorporated its contents into FIR (Ex.PA). Ameer Dad ASI appeared before the Court as (PW-7) and stated that complainant ljaz Nabi brought the case property and the vehicle to the police station and he made relevant entries in the prescribed registered but this witness is silent about bringing of the appellant in the police station by the constable Altaf. Had the appellant been taken to the police station by the complainant through constable Altaf No. 4775 then it could have been so reflected from the statements of the referred witnesses which is not the case in hand which situation rather supports the defense plea whereby the appellant has alleged that he was arrested from Ocha Wale stop at the instigation and connivance of co-accused Selman.

6. In addition to above, another pronounced aspect of the case is that the seizing officer (PW-5) in his cross-examination has stated that till arrival of the IO to the spot he was present in the radius of 10 paces from the spot and when the Investigation Officer reached there he proceeded to the spot whereas the Investigation Officer (PW-8) in his cross-examination has stated that when he reached the spot the complainant and PWs were not present there and he called them. Besides, PW-2 in his cross-examination has stated that the secret cavities were opened on the pointation of informer, who was present on the spot. When the secret cavities were pointed out to the complainant by the informer who was present on the spot then in that eventuality his statement was to be recorded as by then his role was changed from that of his being an informer into a witness.

7. Thorough and careful examination of the case record would show that the prosecution has not proved its case through cogent and reliable evidence and the learned trial court has also not appreciated the case evidence in its true perspective for which the impugned judgment cannot be upheld.

8. For what has been discussed above, this appeal is allowed. The impugned judgment is set aside and the appellant is acquitted of the charge levelled against him. He be set at liberty forthwith if not required in any other case.

9. These are the reasons of our short order of even date. SA/184/P Appeal allowed.