2002 PLP 1198 (MLD)

On 26‑9‑2000, Abdul Jalal Khan, Inspector C.I.A., Bannu alongwith Gulap Khan, S.‑I. and lady constable Khurshida and others was standing across F. R. P. Post for checking. In the meantime a Flying Coach bearing No.5551‑BUC came from Miran Shah side which was stopped for checking. A lady sitting therein was searched in whose lap a plastic envelope containing opium weighing 550 grams was found and pursuant thereto a case under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order read with section 9, C.N.S.A. was registered against her and a person sitting besides her vide F.I.R. No. 131, dated 26‑9‑2000, Police Station Baka Khel, Tehsil and District Bannu.

2. After completing the necessary investigatory formalities the appellant alongwith her co‑accused was forwarded to the Court of learned Special Judge, Bannu for trial who on conclusion thereof sentenced the appellant and her co‑accused to three years' R.I. with a fine of Rs.3,000 each or in default to undergo six months S.I. with the benefit of section 382‑B, Cr.P.C. and r section 9 of the N. S. A. vide judgment dated 27‑6‑2001,

3. The appellant impugned her conviction and sentence by filing this appeal in this Court.

4. The learned counsel for the appellant contended that there is nothing on the record to show that the appellant was in conscious possession of the contraband; that the contraband in fact belonged to the convicted co‑accused; that the Investigating Officer admitted during the course of his cross‑examination that the contraband belonged to the convicted co‑accused; that once the co‑accused was convicted and sentenced for possessing the same substance, the appellant could not have been convicted therefore and that when there is nothing on the record to show that the sealed parcel was delivered intact to the Chemical Examiner no reliance can be placed on his report.

5. The learned counsel appearing on behalf of the State argued that when the incriminating substance was found lying in the lap of the appellant no further evidence was required to prove her guilt and that the evidence being consistent and confidence inspiring connects the appellant with the crime beyond any shadow of reasonable doubt, therefore, the judgment of the learned Special Judge being free from any infirmity merits no interference.

6. We have perused the record of the case and carefully considered the submission of the learned counsel for the parties.

7. It is true that the plastic envelope containing contraband was found lying in the lap of the appellant but it is equally true that it belonged to the co‑accused Amirullah according to pretrial investigation and statement of the Investigating Officer made in the Court during trial and rightly so because two persons cannot believably possessed it simultaneously. Moreover, when the co‑accused has been convicted on the charge of possessing and carrying the substance in question how the conviction of the appellant can be sustained for the same sounds strange as well as surprising.

8. Be all that as it may, we on appraisal of entire evidence on the record are of the view that the prosecution has not been able to prove that she was in conscious possession of the contraband, even if it is assumed for a while that it was found lying in the lap of the appellant at the relevant time.

9. Above all else when the record is absolutely silent as to when and by whom the sealed parcel containing sample of the suspected substance was taken to the Chemical Examiner and that it was delivered intact without there being any tampering therewith, nor reliance in the circumstances of the case can be placed on this report. For the foregoing reasons we are of the view that charge against the appellant has not been proved beyond any shadow of reasonable doubt, therefore, by extending the benefit of doubt we allow this appeal, set aside her conviction and sentence and direct her forthwith release if she is not required in any other case. H.B.T./483/P Appeal allowed.