2009 P Cr (PLP)

MUHAMMAD ALAM KHAN, J.

Shair Khan appellant has filed this appeal against the judgment dated 18-7-2006 whereby he stands convicted under section 9(c), C.N.S.A., 1997 and sentenced to imprisonment for life and to pay fine of Rs.1,00,000, in default to further undergo six months simple imprisonment, vide case F.I.R. No.71 dated 22-3-2005 under sections 3/4/9 of the Control of Narcotic Substances Act, 1997 registered at Police Station Domel District Bannu.

2. According to the F.I.R., Sarfraz Khan, A.S.-I. along with police party was on patrol duty in the official vehicle when he noticed a blue colour bag lying on the ground near the Chowk of Azeem Killey. In order to check the same, the vehicle was stopped and he along with the police party deboarded therefrom and saw a person running who was followed and overpowered. On enquiry, he disclosed his name as Shair Khan son of Aslam Gul, resident of Darra Adam Khel. On search, the bag contained eighteen packets of Charas weighing twenty kilograms, of which five grams was separated, for chemical analysis while the remaining was sealed into a parcel and thus, Shair Khan was arrested vide F.I.R. (ibid).

3. After completion of investigation and requisite formalities, the accused was forwarded to the Court for trial where he was formally charge-sheeted but he denied the allegations and claimed trial.

4. In order to prove its case against the accused, the prosecution produced and examined five witnesses, whereafter statement of the accused under section 342, Cr.P.C. was recorded wherein he totally refuted the allegations levelled against him. However, neither he wished to be examined under section 340(2), Cr.P.C. nor produced any defence evidence. The learned trial Judge after appraising the evidence brought on record and considering the arguments advanced at the bar found the accused guilty of the charge and thus, on conviction sentenced him as mentioned above. Hence this appeal.

5. Mr. Muhammad Tariq Afridi, learned counsel appearing for the convict-appellant submitted that the recovery has not been effected from the possession of the appellant as the alleged narcotics were admittedly lying by the side of the road, when the police recovered the same, so it was argued that the narcotics has not been recovered from the direct and conscious possession of the accused. It was also argued that the recovery memo. has not been prepared on the spot as the same bears the number of F.I.R. It was further submitted that the occurrence allegedly took place on 22-3-2005 and the sample was received in laboratory on 18-4-2005, after 27 days of the occurrence and it cannot be ascertained as to in whose possession sample remains, which fact is shrouded in mystery. Thus, it was submitted that the appellant was entitled to acquittal.

6. On the other hand, Mr. Farooq Akhtar, learned counsel appearing for the State argued that the appellant is directly charged in the F.I.R. and recovery has been affected from his direct possession; there was no animosity of the police with the accused for false charge. It was also argued that delay in sending the sample to the laboratory is not of much importance. Reliance was placed on the case-law reported as 2006 SCMR 1051 and PLD 2006 Pesh. page 39.

7. We have carefully scrutinized the entire record of the case with the valuable assistance of learned counsel for the parties.

8. Perusal of the record indicates that the prosecution had not been able to prove its case against the convict/appellant who merits outright acquittal. There is no direct or circumstantial evidence to connect him with the commission of the offence. The alleged recovery of the narcotic substance was not effected from the direct physical and conscious possession of the appellant. He was not apprehended by the police with the alleged recovered contraband Charas. There are material contradictions in the statements of the P.Ws. who are not worth to be relied upon. The manner of arrest of the convict/appellant and recovery of the narcotics are highly doubtful. The learned trial Judge has not appreciated the prosecution evidence in its true prospective and the impugned judgment of conviction of the learned trial Court is not in conformity with the provisions of section 367, Cr.P.C. From whatever angle we see, the prosecution case is full of doubts the benefit whereof entitle the convict/appellant to acquittal.

9. Consequently, while placing reliance on the dictum handed down in the cases of Jamil Shah v. The State 1997 SCMR 1494, Imtiaz v. The State PLD 2008 Pesh. 19, Muhammad Haneef v. The State 1996 PCr.LJ 706, Mst. Iqbal Bibi v. The State 2000 PCr.LJ 1812, Minhaj v. The State 2004 PCr.LJ 1992 and Muhammad Akram Khan v. The State 1996 PCr.LJ 843 (Federal Shariat Court), we allow this appeal, set aside the impugned conviction and sentence of the appellant and acquit him of the charge brought against him in the instant case. He shall be set at liberty forthwith if not wanted in any other case. H.B.T./49/P Appeal allowed.