2012 PLP 577 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Appellant Amjad Ali son of Wazir Zada was tried in the case registered vide F.I.R. No.337 dated 26-5-2006 under sections 9(c) of Control of Narcotic Substances Act, 1997 at Police Station Topi, District Sawabi on the allegation that on interception and search of the car being driven by him, charas weighing 20 KG was recovered from the secret cavities of the door (of the car bearing No.93-MR) and its stepney. The learned trial Court vide its judgment dated 14-6-2007 convicted him under section 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced him to life imprisonment as also a fine of Rs.100,000 in default whereof he was to undergo SI for six months. Benefit of section 382-B, Cr.P.C. was also extended. The learned High Court vide the impugned judgment dated 21-4-2009 has maintained the conviction and sentences recorded.

2. During trial the prosecution examined 4 witnesses namely P.W.1 Hussain Bacha Khan, SI, Police Station Topi, P.W.2 Qaiser Ali Khan, SI, CIA District Swabi, P.W.3 Manir Khan, SI, Police Station Lahore and P.W.4 Safdar No.333, Police Station Topi. The accused when examined under section 342, Cr.P.C. denied the prosecution story and attributed false implication to his maternal uncle Khaista Gul who had earlier got a case registered under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 vide F.I.R. No.783 dated 27-8-2001 wherein appellant was declared fugitive to law as he had shifted his place of residence to Sawabi.

3. Learned counsel for the appellant submits that the case is false; that his uncle Khaista Gul had falsely involved him in the case on account of personal revenge with whose daughter he was earlier engaged but the relationship broke, which is evident from the earlier case registered against him under Offence of Zina (Enforcement of Hudood) Ordinance; that a bare reading of the testimony of P.W.2 indicates that he fabricated the case; that no public witness appeared to support the prosecution story and all the 4 witnesses are police officials whose testimony is devoid of any credibility not only on account of mala fides attributed to P.W.2 but also because of inter se contradictions in their statements.

4. Learned counsel for the State, on the other hand, defended the impugned judgment by submitting that the evidence led has concurrently been relied upon by two courts below and the findings rendered do not call for interference as they neither reflect misreading or non-reading of evidence; that there is nothing on record to indicate that any of the prosecution witnesses was inimical towards the appellant to falsely implicate him and that the police official is as much worthy of reliance as a public witness unless there is evidence to suggest that he had a motive to falsely implicate the appellant.

5. Having heard learned counsel for the appellant and for the State, we find that the vehicle which was being driven by the appellant was intercepted by P.W.2 Qaiser Ali Khan, SI, CIA, District Sawabi, who at the time was serving as SHO. A perusal of his examination-in-chief indicates that although the appellant never disclosed that the secret cavities of the car door and the stepney contained charas yet according to the said witness, he of his own found out that, uncovered the secret cavities of the door and the stepney without the help of any instrument. This, on the face of it, is repellent to common sense. Then according to P.W.3 Manir Khan, SI, he came to the spot along with a foot constable on a motorbike whereas according to P.W.4 Safdar FC- 333, the former came to the spot in a private vehicle and not on a motorbike. Although the prosecution sought to corroborate the testimony of P.W.2 and P.W.3 with the report of the Forensic Science Laboratory to the effect that the contraband item recovered from the secret cavities was charas yet the sanctity of the said report (Exh.PK) was eroded when P.W.3 Manir Khan in cross-examination could not correctly reply as to where the samples remained between the dates those were allegedly taken into possession from the car and the date those were received by the Forensic Science Laboratory i.e. 26-5-2006 to 3-6-2006. He even could not tell the date as to when the samples were sent for examination and which official had taken the samples to the Laboratory. Admittedly the case property, the stepney of the car was never produced during trial to verify as to whether it could contain such a huge quantity of the narcotics in question.

6. The afore-referred elements of doubt surrounding the prosecution case have led us to hold that the prosecution has failed to prove its case beyond reasonable doubt to sustain conviction. That being so, this appeal is allowed, the impugned judgment is set aside and the appellant is acquitted of the charge under consideration. He shall be released forthwith unless detained in any other case. M.H./A-4/SC Appeal allowe