2023 PLP 408 (YLR)

MUSARRAT HILALI, J.

This criminal appeal has been directed against judgment dated 04.09.2020 passed by learned Judge, Special Court, Peshawar, whereby the present appellant, involved in case FIR No. 1712, dated 20.07.2019, under section 9(c) CNSA, was convicted and sentenced to life imprisonment, besides payment of fine of Rs.100,000/-, or in default thereof to further undergo SI for one year with benefit of section 382-B, Cr.P.C.

2. The prosecution story, as reflected from the record, is that on 20.07.2019 Javid Khan ASI (PW-6) was on patrol duty, when received information as to smuggling of huge quantity of narcotics to the province of Punjab in a motorcar bearing registration No.L-8037/ Lahore. Acted upon the information, he arranged 'nakabandi' at Northern bypass, when at 20.00 hours the spotted motorcar arrived, which was stopped. The driver disclosed his name as Muhammad Sajjad (the appellant). During search, the local police recovered twelve packets of charas, total weighing 12 k.gs, from secret cavities of the motorcar, which were made in the fuel tank, consequently, the above referred case FIR was registered against the accused-appellant. Later on, during investigation, the accused disclosed that the narcotics were owned by one Riaz, who was also arrayed as an accused in the case.

3. After completion of investigation, complete challan was submitted before learned Judge, Special Court, Peshawar, for trial, who, on its conclusion, vide judgment dated 28.03.2012, convicted and sentenced the accused-appellant, as referred to above, while co-accused Riaz being fugitive from law was declared as proclaimed offenders, hence, the instant appeal.

4. Arguments heard and record perused.

5. It appears from the record that the alleged recovery was not made from personal possession of the accused-appellant rather it was made from the fuel tank, fixed in the motorcar. Neither the vehicle was registered in the name of appellant, nor there was any documents, which could show any nexus with him, nor there was any receipt through which the motorcar was given to him on rent. Moreover, according to the contents of FIR, the recovery was effected from the motorcar bearing registration No. L-8037/ Lahore, while report/opinion was sought by the investigation agency from the Motor Registering Authority/Forensic Science Laboratory with regard to motorcar bearing registration No.L-6037/ Karachi through applications, marked as Ex.PW 8/6 and Ex.PW 6/7, and letters Nos. 595 and 596, dated 24.07.2019. Above all, there is no report/opinion of either of the vehicle and still it is a mystery that in whose names the above mentioned vehicle is registered, therefore, in view of the above discrepancy, false implication of the appellant in the case by letting off the real culprits by the police cannot be ruled out.

6. Likewise, the patrol-tank from which the illegal stuff was allegedly recovered was neither produced before the court nor it was exhibited to confirm as to whether it was having the capacity to contain such a huge quantity of narcotics, which aspect of the case also makes the story of prosecution doubtful, particularly, in presence of contradictory statements furnished by the PWs because the seizing officer (PW-6) stated in cross-examination that he had detached the fuel tank from the motorcar, while Ikram Ullah (PW-7) stated in cross-examination that after detaching the fuel tank, it was taken through recovery memo. which was signed by him, whereas the Investigating Officer (PW-8) stated that neither the fuel tank was detached from the motorcar nor it was taken into possession nor in this respect there was a recovery memo. on the record.

7. Moreover, seizing officer of the case is Javid Khan while name of the Investigating Officer is Tilawat Shah Khan, however, monogram on each parcel was affixed as 'CH', but there is no explanation as to on whose name the said monogram was prepared and whether any official by the name of "CH" was ever posted in the police station, which divergence appearing on the face of evidence also cannot be left unnoticed.

8. In addition to the above, absence of necessary protocols on the FSL report regarding the tests applied for as required under section 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 and uncertainty as to safe custody and safe transmission of the representative samples to the FSL is yet another blow to the prosecution case making the FSL report unreliable because the neither the seizing officer nor Ikram Ullah who had taken the murasilla to the Police Station has said anything as to handing over the representative samples to the Moharrir of the Police Station.

8. Thus, in view of the above stated reasons, it would not be safe to maintain the conviction and sentences of the appellant on such a weak and flimsy type of evidence and invalid report of FSL and that too for the offence carrying capital punishment, therefore, for the reasons discussed above, by extending benefit of doubt, the instant appeal is allowed, consequently, the impugned judgment of conviction rendered by the learned Judge Special Court is set aside and, therefore, the appellant is acquitted of the charge levelled against him. He be released forthwith if not required in any other case. Above are the reasons of short order of even date. JK/183/P Appeal allowed.