2013 PLP 1874 (YLR)

SYED AFSAR SHAH, J.

This criminal appeal calls in question the judgment dated 19-6-2012 recorded by learned Additional Sessions Judge-I/Judge Special Court, Peshawar vide which the appellant involved in case F.I.R. No.1092 dated 7-12-2011 registered under section 9(c) C.N.S.A. at Police Station Badhber, was sentenced to imprisonment for life with a fine of Rs.100,000 or in default thereof to undergo further three months' S.I. with benefit of section 382-B, Cr.P.C.

2. On the information regarding smuggling of huge quantity of narcotics from tribal territory to Punjab through Hino Truck bearing Registration No.975/TKJ Baluchistan, Abid-ur-Rehman, S.H.O. to Police Station Badhber along with police nafri fenced the road near Saifan Chowk when in the meanwhile a Truck coming from Kohat side was signalled to stop but the driver by accelerating its speed tried to flee away, however, he was chased and it was near Bazid Khel Stop Scheme Chowk when the Truck was brought to halt. The driver of the Truck along with his companion tried to decamp to the nearby fields, however, on chase one of them was apprehended whereas the other made his escape good. The person who was arrested, on query, disclosed his name as Sardoor Khan of Mir Ali North Waziristan, the present appellant. He also disclosed about the driver of the Truck, namely, Bismillah Jan of the same area. The Truck was subjected to a thorough search, which led to the recovery of charas weighing 40 Kgs smartly concealed in its secret cavities, whereafter, 5/5 grams each were separated for the purpose of FSL sealed into parcels whereas the remaining were sealed into another parcel. The I.O. then prepared the recovery memo Exh.P.W.3/1, recorded the murasila Exh.PA/I and sent it to the Police Station concerned where on the basis of which F.I.R. Exh.PA was registered against the accused.

3. Investigation was started in the case and on its conclusion complete challan was submitted to the court, whereafter a regular trial, the accused/appellant was convicted and sentenced herein impugned. Arguments heard. Record perused.

4. It appears from the F.I.R. Exh.PA that in this case occurrence took place on 7-12-2011 at about 1930 hrs whereas the report has been lodged on the same day at about 2115 hrs. Abid-ur-Rehman, S.H.O. to Police Station Badhher is the complainant of the present case, who appeared as P.W.3. He has stated in support of the investigation, which he has conducted in the instant case. Besides the seizure of the Truck, arrest of the accused/appellant and recovery of narcotics, he has separated the samples from the entire stuff for the purpose of FSL, prepared the recovery memo Exh.P.W.3/1, recorded the murasila Exh.PA/1 and also drafted an application for sending the sample for chemical analysis. Imran Khan, FC, who is witness to the recovery memo has been examined as P.W.5 and he has stated in support of the investigation conducted by the I.O. He has also admitted the recovery memo Exh.P.W.3/1 to be correct and correctly bearing his signature.

5. So far as Fazli Rehman, S.-I. (P.W.4) is concerned, he has conducted the investigation after registration of the case and as a consequence thereof he has prepared the site plan Ex.PB, interrogated the accused, recorded statements of the P.Ws. under section 161, Cr.P.C., received report of FSL as Ex.PZ and initiated proceedings against the absconding co-accused under sections 204 and 87, Cr.P.C. and handed over the same to the DFC concerned for execution.

6. It is in the cross-examination of Abid-ur-Rehman, I.O. (P.W.3) that the occurrence has taken place in the Scheme Chowk where public is always available and that shops are situated on both sides of the road; that the people used to come from Waziristan for medical treatment and they stay in cheap hotels nearby to the Flying Coach Adda. He has admitted that the accused was not arrested from the vehicle in question. He went on to say that he was informed by the informer that the accused was having connection with the Truck, therefore, he was arrested. He further admitted that as per record accused/ appellant is neither owner of the Truck nor its driver or conductor. He made it clear that it is no where mentioned on the file that any documentary evidence has been recovered from the vehicle or for that matter from personal search of the accused/appellant, which could show that he was having any connection with the vehicle or with its driver. According to him, he has not recorded the statement of any one who could say that the accused/appellant was present in the vehicle or he was deboarded from the same or even running and that nothing was recovered from his personal search.

7. Admittedly and as is evident from the record, P.W.3 Abid-ur-Rehman, is the star witness of the present case but his this version that he was informed by the informer that the accused/appellant was having connection with the Truck, therefore, he was arrested, cast serious doubts on the prosecution version. Moreover, he himself has admitted that as per record, accused/appellant is neither owner of the Truck nor its driver or conductor. Not only this, he has not recovered any incriminating item from the personal search of the accused/appellant. So far as P.W.4 Fazli Rehman, S.-I. is concerned, he has admitted in his cross-examination that he has not made any investigation regarding the ownership of the vehicle. He has, however, made it clear that the documents of the vehicle in question were available, which contained the name of the owner but he has neither been made an accused nor witness in the present case. Again, he has admitted that he has not recorded the statement of any person regarding the connection of the accused/appellant with the vehicle as a driver, cleaner or owner. He has also admitted that the accused/appellant disclosed to him that he was having no knowledge about the chars with adding version that he is innocent and having no connection with the case/charas.

8. Imran Khan, FC, marginal witness, to the recovery in his cross-examination has admitted that he has not signed the recovery memo on the spot rather after completion of entire investigation at the spot, when they reached to the Police Station, they signed the recovery memo. He has also stated about the distance between the Police Station Saifan and Bazid Khel Stop. He went on to depose that no document has been recovered from the vehicle or from the accused/appellant, which could show a link between him and the same (vehicle).

9. So far as the accused/appellant is concerned, he in his statement recorded under section 342, Cr.P.C. has categorically stated that he had come to Peshawar for medical treatment.

10. Keeping in view the cross-examination of the star witnesses of the case, one could reach to an irresistible conclusion that the prosecution has not been able to prove its case against the accused/ appellant beyond reasonable doubt. The arrest of the accused/appellant on the information of the informer that he was having connection with the Truck and again non-production of the informer as prosecu-tion witness is beyond our comprehension.

11. It is a case of capital charge and in such like cases evidence must come from some unimpeachable source which should be supported and duly corroborated by strong piece of evidence, which in the instant case, as discussed earlier, is missing in toto. In view of the above, this appeal is allowed, resultantly, the conviction and sentence of the appellant recorded by learned Additional Sessions Judge-I/Judge Special Court, Peshawar vide judgment dated 19-6-2012 is set aside. He is acquitted of the charge/charges levelled against him and be set at liberty forthwith, if not required in any other case. These are the detailed reasons for our short order of even date. HBT/224/P Appeal allowed.