2020 PLP 448 (MLD)

MUHAMMAD AYUB KHAN, J.

This criminal appeal is directed against the judgment dated 28.01.2015 of the learned Additional Sessions Judge-XII/Judge Special Court, Peshawar delivered in case FIR No.925 dated 04.11.2013 under section 9(c) of the Control of Narcotic Substances Act, 1997 of Police Station Chamkani, Peshawar, whereby on conviction, appellant has been sentenced to imprisonment for life with a fine of Rs.200,000/- or in default whereof to undergo six months' SI with benefit under section 382-B, Cr.P.C.

2. As per prosecution version, on 04.11.2013, complainant of the case, namely, Shaukat Kamal Khan, AS1 along with other police contingent was present with regard to nakabandi at Motorway when received information qua smuggling of huge quantity of narcotics from tribal territory towards Punjab through Truck bearing registration No. K-7770/Peshawar via Motorway. In the meanwhile, the said Truck reached there, which was signaled to stop. On inquiry, the driver disclosed his name as Muhammad Sadeeq. Search of the Truck led to the recovery of 150 packets of charas pukhta concealed in secret cavities made in the upper portion and back side of the driver seat in the body of the truck. Necessary samples were separated for chemical analysis while the remaining bulk was sealed in a separate parcel, hence on the basis of murasila Ex.PA/1, case FIR Ex.PA was registered.

3. On completion of investigation, the appellant was charge sheeted to which he pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced and examined eight witnesses in all, whereafter statement of accused was recorded, wherein, he professed his innocence. 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 is impugned in the appeal in hand.

4. Arguments heard and record gone through.

5. Allegation against the appellant is that on the fateful day at the relevant time he was driving the Truck in question and from secret cavities specially designed and made therein, 150 packets containing charas pukhta were recovered, which on weighment turned out to be 150 kg.

6. In the present case, each PW has advanced a different story of events and have contradicted each other on various points. Seizing Officer/PW-2 stated that case property was pointed out by informer, which was lying in between the driver seat and the rear body portion of the truck. Sabz Ali, constable is marginal/eyewitness to recovery memo Ex.PW2/1. He appeared as PW-3. He stated that "contraband was recovered from rear portion of the truck and that the cavity was not behind the driver seat". Similarly, PW-2 stated that "at the time of nakabandi we had no official vehicle". PW-6 contradicted such stance by stating that at the time of nakabandi they had official vehicle. Likewise, PW-2 stated that he used own scale for weighment. This witness was contradicted by PW-3, who in cross-examination stated that the scale was procured from a nearby shop. According to murasila Ex.PA/1 and statement of PW-2, the alleged recovery was effected upon information of informer. Said stance is contradicted by PW-3. He stated that they had no information with regard to smuggling of narcotics. Furthermore, PW-2 stated that "I do not know whether there was any writing over the said slabs or not. In court, the case property was de-sealed and on packets writing of MA-NA MINI SALAMI were found. Again, PW-3 stated that the scale was procured from shop near spot. PW-4 stated that "when I visited the spot there was no shop available and, therefore, I have not shown the same in the site plan".

7. Keeping in view the above contradictions, the mode and manner of recovery effected from the truck driven by the appellant has become doubtful benefit of which must go to him.

8. As per record, the truck was driven by the appellant at the relevant time. However, it is admitted by PW-2 that during search he has not taken into possession driving license, keys of the truck or any other document showing ownership of the truck by the appellant. It is not appealable to prudent mind that a driver plying vehicle without having any license or other documents. The appellant was not challaned for driving without driving license. The prosecution has not tried to ascertain about the owner of truck although it was having computerized registration number, thus, created doubt with regard to ownership of the truck by the appellant to connect him with commission of offence.

9. As per deposition of PW-2, the charas and case property remained on the spot and same were handed over to Investigating Officer (PW-4) on the spot. This witness is contradicted by PW-4/Investigating Officer, who stated that when I reached the spot neither accused facing trial, truck or the case property were available on spot and the same were not shown to me on the spot by the complainant". PW-8 stated that the parcels, truck and the case property were handed over to him by complainant in the PS, however, no receipt or abstract from Register Nos.19 and 21 has been brought on record. Moreover, FC No.4336 is shown in FSL report to have taken samples from the recovered stuff to FSL but he has not been examined.

10. Apart from the above, the recovery was made on 04.11.2013 while samples of the recovered stuff were received by the FSL on 07.11.2013, however, the PWs have not brought on record the trail of samples suggesting that during this period same were kept in safe custody.

11. It is settled by now that a single doubt in the prosecution case is sufficient to record acquittal of an accused, however, there are many lacunas in the statements of PWs, which cannot be overlooked.

12. After considering and appreciating the case evidence, we are of the considered opinion that the learned trial court did not analyze the prosecution evidence in its true perspective and in accordance with the principles laid down by the superior courts for dispensation of criminal justice. The learned trial Court has fallen into legal error by recording conviction of the appellant, therefore, we accept this appeal, set aside the impugned judgment of conviction and acquit him of the charge levelled against him. He be set free forthwith, if not required or wanted in any other criminal case.

13. These are the detailed reasons for our short order of even date. SA/228/P Appeal accepted.