2020 P Cr (PLP)

IKRAMULLAH KHAN, J.

This single judgment shall dispose of Criminal Appeal No.292-P/2018 filed by appellant Yar Shah and connected Criminal Appeal No.333-P/2018 filed by appellant Khan Muhammad as both these appeals have been preferred against the one and same impugned judgment dated 14.3.2018 rendered by learned Judge, Special Court (CNS), Peshawar, whereby both the appellants involved in case FIR No.09 dated 10.4.2015 under section 9(c), C.N.S.A., of Police Station ANF, Kohat were convicted and sentenced each to life imprisonment along with fine of Rs.100,000/- or in default thereof to suffer six months' SI while benefit of section 382-B, Cr.P.C. is extended to the appellants/convicts.

2. According to prosecution case, the ANF officials during Nakabandi intercepted Motorcar bearing registration No.LEB-3389, being driven by appellant Yar Shah while appellant Khan Muhammad was sitting on front seat of the said car. On cursory interrogation, both the appellants disclosed about concealment of narcotics in the vehicle. On the pointation of both the appellants, 20 packets of Charas weighing 1200 grams each (total 24 Kgs) were recovered from the said vehicle. Consequently the contraband along with motorcar were taken into custody, both the appellants were arrested by ANF officials and a case vide FIR mentioned above was registered against them.

3. After completion of investigation, complete challan against the appellants was submitted before the learned trial Court where after framing of formal charge against the appellants, the prosecution in support of its case examined as many as four (4) PWs. On close of prosecution evidence, statements of both the appellants were recorded under section 342, Cr.P.C. wherein they denied the allegations levelled against the appellant however, opted to be examined on oath as well as to produce defence evidence. At conclusion of trial, the learned trial Court convicted both the appellants vide judgment dated 24.1.2017 however, the appeals filed by the appellants were allowed by this Court thereby remanding the case to the learned trial Court for decision afresh after hearing the parties, vide impugned judgment dated 22.11.2017.

4. On remand, the learned trial Court after hearing the parties, again convicted and sentenced both the appellants vide impugned judgment dated 14.3.2018, hence the instant criminal appeal.

5. We have heard learned counsel for the appellants, learned Special Prosecutor for ANF and gone through the record.

6. Allegation against the appellants is that huge quantity of narcotics has been recovered from the vehicle being occupied by them so the prosecution was bound to prove its case without any reasonable doubt however, as per record there is serious doubt insofar as the recovery of narcotics from the vehicle is concerned. Appellant Yar Shah recorded his statement on oath under section 340(2), Cr.P.C. wherein he has put forwarded a different story in respect of his arrest and lodging of FIR against him by the ANF officials. During course of cross-examination of prosecution witnesses, the appellant has also placed questions over the PWs that actually the accused were arrested by the personnel of Police Station Faqir Abad, who had taken Rs.10,00,000/- from them and thereafter they were charged in the instant case. PW.2 Noshad Ahmad FC, (the alleged witness to the recovery memo Ex.PW.1/1), when asked in this respect, he answered that he did not know and could not comment that his SHO and SHO, Faqir Abad have also taken Rupees Twelve lacs from the accused Yar Shah but he apparently not denied the same. The appellant Yar Badshah has recorded his statement under section 340(2), Cr.P.C. wherein the prosecution itself admitted that accused were arrested by personnel of Police Station Faqir Abad, Peshawar, which reads as under:- "It is correct that the scuffle took place in front of the bargain opposite to PS Faqir Abad Peshawar." In cross-examination the accused also stated in his cross-examination as under: "It was before Juma prayer time when I along with my co-accused Khan Muhammad were forcibly taken to PS Faqir Abad Peshawar by ANF personnel."

7. The prosecution has not put any suggestion to accused Yar Shah that his examination in chief was false, afterthought and not true. Another defence witness namely Sher Zaman Khan was examined as DW.2 but his examination in chief was not shattered in cross-examination whereby both the statements recorded by DW.1 and DW.2 reveals that the prosecution case as far as the recovery of narcotics is concerned, is highly doubtful. The Mobile data collected by prosecution itself reveals that the accused were present at Peshawar at the time of arrest of accused shown by the prosecution. Learned counsel for the appellant when asked that whether the accused had filed any application before the Governor KPK in order to conduct inquiry against the personnel of ANF and Faqir Abad Police Station Police, he admitted the same that full pledge inquiry was conducted however, the police officials were exonerated in the inquiry but astonishingly it was not brought on record in order to falsify the allegation of accused that they were not arrested in the mode and manner as described by the prosecution.

8. The other important question is that the motorcar was claimed to be ownership of one Muhammad Asif but later on the documents produced by him was found to be fake. Neither any case was registered against the said person (Muhammad Asif) along with one other while they were shown to be fugitive of law although there were serious allegations forwarded by the accused party that the car from which the alleged contraband was recovered, was still in use of accused Muhammad Asif and he was tout of ANF police, while the said Muhammad Asif has filed Appeal No.170-P/2019, fixed today in this Court for custody of the car. The prosecution has failed to prove the recovery of contraband from the car at the place and time shown by them in the FIR as no recovery memo. is available in this respect on record however, all the search proceedings were allegedly conducted in the Police Station ANF, Kohat. The identification memo reveals that the FIR number well mentioned in the same handwriting and other contents of the said memo, which suggests that all the memos. were prepared after registration of the case meaning thereby that the case has been registered after preliminary inquiry. The contraband allegedly recovered from the vehicle of appellants was sent to FSL on 13.4.2015 after considerable delay which also makes the prosecution case doubtful. The card of arrest does not reveal time of arrest of accused while it also bears FIR number. It is settled principle of law that capital punishment could not be given on shaky kind of evidence while this case is full of doubt as far as arrest of accused, recovery of narcotics and even the possession over the vehicle of accused is concerned. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to discredit to the prosecution story and entitle the accused for acquittal. Moreover, accused is always considered as the most favorite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. Therefore for the reasons mentioned hereinabove both the above criminal appeals are allowed, the impugned judgments of conviction and sentence is set aside accordingly. Both the appellants namely Yar Shah and Khan Muhammad are acquitted of the charges levelled against them. They are in custody and be released forthwith, if not required in any other criminal case. The above are reasons of our short orders of even date. SA/235/P Appeal allowed.