2011 P Cr (PLP)

ATTAULLAH KHAN, J.

State through this appeal filed under section 417, Cr.P.C. has challenged the judgment dated 6-12-2004 passed by the learned Additional Sessions Judge-I Lakki Marwat, whereby Gullah Khan, accused/respondent, was acquitted of the charge brought against him in case F.I.R No.66 dated 17-3-2003 of police Station Pezu registered under sections 3/4 of Prohibition Order read with section 9 of the Control of Narcotic Substances Act 1997.

2. Facts of the case are that on 17-3-2003 Mumtaz Khan S.H.O of Police Station Pezu had made picket at Banochi Check post on Bannu-Dera road when at about 1700 hours a flying coach coming from Bannu side was stopped for checking and a `Hijrra' sitting therein in suspicious condition was deboarded therefrom having a plastic bag in his hands. When asked, he disclosed his name as Gulla, son/daughter of Wazir Khan, resident of Chunda, District D.I. Khan and when checked the bag, it contained opium weighing 1000 grains. He/she was thus book as an accused vide F.I.R ibid.

3. After completion of investigation, the accused was forwarded to the Court where he did not plead guilty to the charge and claimed trial.

4. In order to prove its case, the prosecution produced and examined Mumtaz Khan complainant as P.W.1 and Naimatullah Khan LHC as P.W.2 and closed the case. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. but neither he produced any defence evidence nor opted to examine himself on oath under section 340(2), Cr.P.C.

5. The learned trial Judge on evaluating the materials brought on record and considering the arguments of the learned counsel for the parties in the light of record found the accused not guilty of the charge and thus acquitted him vide judgment impugned herein.

6. The learned Deputy Advocate-General appearing on behalf of the State contended that the prosecution had proved its case through cogent and reliable evidence available on record and thus the impugned conclusion of the learned trial Judge is the result of non-appraisal of evidence. He argued that the accused/respondent was apprehended along with a huge quantity of contraband opium lying in a bag in his hands. The recovery was made in presence of police officials who had no animosity against the accused/respondent. It was lastly argued that the FSL report is in positive and thus the impugned judgment of acquittal merits to be set aside.

7. On the other hand, the accused/respondent present in person defended the impugned acquittal in his/her favour on the grounds that there is a delay of twenty-eight days in sending the sample of the contraband opium to the Forensic Science Laboratory. He submitted that there is a glaring contradiction in statements of the P.Ws. in respect of identity of the accused/respondent. His last argument was that no public witness was associated with the process of search and arrest of the accused in spite of the fact that people were available on the spot at the relevant time. According to him, the learned trial Judge has correctly appraised the evidence brought on record and, therefore, the impugned judgment of acquittal needs no interference by this Court.

8. We have gone through the record carefully and considered the arguments of the learned counsel for the parties in the light thereof.

9. The accused/respondent has been acquitted on the ground that under the Police Order 2002, the complainant was not incharge of investigation but still he carried out the same which is illegal and its benefit was given to the accused. No other evidence has been discussed. In our view, this finding is against the law, for the reason that Police Order 2002 is not applicable to the case in hand and the provisions of CNSA are applicable thereto.

10. According to section 21 of CNSA, an Officer not below the rank of Sub-Inspector of Police or equalvent would carry investigation in such like cases. In presence of this provision of law, the Police Order 2002 would play no role at all in narcotic cases. So we set aside the finding of the trial Court in this regard mentioned in paragraph 10 of the impugned judgment.

11. We have considered the other materials on record to know as to whether the accused is liable to be punished or not.

12. The prosecution in support of this case has produced two witnesses only. One is incharge of the Nakabandi while the other is the' witness of the recovery. We have also perused the recovery memo Exh.P.W.1 duly signed by P.W.2 as its marginal witness who was also included in the policy party at the relevant time.

13. The first thing to be noted is that the sample was sent to the Laboratory for chemical analysis on 13-4-2003 while the occurrence is dated 17-3-2003 and thus there is an unexplained delay of twenty-eight days in sending the sample for examination to the laboratory. Due to this unexplained delay, the process of alleged recovery has become doubtful.

14. The other thing to be noted is the identification of the accused/respondent. According to P.W.1, he was Head of the police party and at the time of arrest, the accused was not wearing 'Burga' (veil) On the other hand, P.W.2 who was Member of the Police party has stated that the accused was wearing 'Burqa' and lady clothes. This is a material contradiction due to which the identity of the accused was doubtful.

15. Another fact for consideration is the witnesses of the recovery. Both of them are police officials and in spite of availability of private individuals on the spot, none was associated with the process of recovery and search. Though section 25 of C.N.S.A. has excluded section 103, Cr.P.C., yet great care and caution is to be taken for association of private witnesses if available at the time of arrest and recovery.

16. Admittedly, the lady accused was arrested from a Flying Coach where she was present along with other passengers. The Investigating Officer has failed to associate any of the Passengers. At least the Driver or Conductor of the Vehicle should have been associated with the process of recovery of the alleged contraband narcotic from the possession of the accused/respondent. This is also fatal to the case of the prosecution.

17. Besides, this appeal merits outright dismissal on the ground of limitation alone. The impugned judgment is dated 6-12-2004 while the State has filed the present appeal on 16-3-2005. Under subsection (2-A) of section 417, Cr.P.C. a person aggrieved by the order of acquittal passed by any Court, other than a High Court; may, within thirty days, file an appeal against such order. Thus the appeal in hand having been filed beyond thirty days, i.e. after more than three months, is hopelessly barred by time and there is also no application for condonation of this long and unexplained delay.

18. Further more, once an accused is acquitted by a competent Court of law after facing the agonies of protracted trial, then he earns the presumption of double innocence which cannot be disturbed slightly unless grave illegality and injustice is established in the impugned order of acquittal.

19. For the reasons enumerated above, we find no substance in this appeal which is accordingly dismissed both on the grounds of limitation and merits. H.B.T./319/P Appeal dismissed.