2008 PLP 1565 (MLD)

SHAHJI RAHMAN KHAN, J.-This criminal appeal is directed against the judgment, dated 24-1-2008 passed by the learned Additional Sessions Judge-II Bannu, whereby the appellant, Inamullah Khan, was found guilty for an offence under section 9(b) C.N.S.A. and on conviction has been sentenced to six months' R.I. and to pay fine of Rs.5,000 or in default thereof to further undergo simple imprisonment for three months with benefit under section 382-B, Cr.P.C.

2. The prosecution case as gleaned from the Murasila (Exh.P.W.1/1) is that Gul Hamid Khan S.H.O. of Police Station Township Bannu was present on petrol duty on Link road with the limits of Dogar Umarzai when a Flying Coach No.2455/Lahore coming from Peshawar side was stopped and on suspicion its driver was deboarded therefrom, who disclosed his name as Inamullah son of Gul Marjan, resident of Tapi Miranshah Agency. On search of the Flying Coach, a plastic envelope beneath from the Driver's seat was recovered which contained contraband Charas. When weighed, it became 500 grams, out of which four grams were separated for chemical analysis while the remaining quantity was sealed. He was, therefore, arrested in the offence and consequently case F.I.R. No.27, dated 4-3-2007 under section 9 C.N.S.A. was registered against him. It was alleged that during investigation, the accused had stated that the contraband Charas was purchased from Darra Adam Khel.

3. After completion of investigation, complete challan was submitted in Court where the accused did not plead guilty to the charge, professed innocence, claimed trial, but neither produced any defence witness nor himself wished to be examined on oath under section 340(2), Cr.P.C. In order to prove its case against the accused, the prosecution produced four witnesses. The learned trial Court after scanning the evidence brought on record and hearing the parties found the accused guilty of the offence charged and on conviction sentenced him as stated above, hence this appeal.

4. It was vehemently argued by the learned counsel for the appellant that the impugned conviction and sentence are not maintainable under the law as the contraband Charas was not recovered from the direct physical possession of the appellant that numerous passengers were available in the Flying Coach in question and thus the alleged recovered narcotic was not supposed to be exclusively owned by the appellant, that the investigation carried out in the case was against the provisions contained in section 18 of Police Order, 2002 whereunder the Investigation Wing alone is competent o carry out the investigation, while in the case in hand, such exercise has been done by the S.H.O. himself and that there are material contradictions in statements of the prosecution witnesses.

5. In reply, learned Deputy Advocate-General representing the State has defended the impugned judgment on the grounds that the appellant was found in conscious possession of the Charas in presence of marginal witnesses who has supported the prosecution version and that the report of Chemical Examiner is in positive.

6. We have considered the arguments advanced at the Bar and thoroughly examined record of the case.

7. Perusal of the record reveals that the prosecution case is full of doubts and defects and there are material contradictions in statements of the prosecution witnesses. Complainant Gul Hamid Khan S.H.O. while appearing as P. W.1 has stated after completion of the requisite formalities, he had himself drafted the murasila Exh.P.W.1/1., but in cross-examination he had taken a different stand by stating that under his dictation, the murasila was drafted by his subordinate. His stance was that he himself searched the Flying Coach and deboarded all the passengers therefrom during search proceedings. He had admitted that narcotics are smuggled from Miranshah towards settled area which is against the narration made in the murasila. The complainant is negated by the statement of Laiq Shah P.W.2 who has stated that only the driver of the flying Coach was deboarded and during search of the vehicle the Charas was recovered while none of the passengers was either searched or deboarded therefrom. This witness has further negated the complainant by stating that the contraband Charas was recovered from the possession of the accused and the murasila was drafted by the complainant/S.H.O. himself. P.W.3., Abdul Aziz Khan A.S.-I. during his cross-examination has stated that the recovery memo., arrest card and the sealed parcel were handed over to him by the S.H.O. on the spot and he had prepared the site-plan on the spot after his arrival there. He stated that the Flying Coach along with its driver, S.H.O. and other Nafri were present on the spot when he reached there. All these glaring contradictions in statements of the prosecution witnesses are sufficient to hold that the prosecution has miserably failed to bring home guilt to the convict/appellant and the learned trial Judge has, therefore, failed to properly appraise the evidence brought on record.

8. As a corollary to what has been discussed above, we are constrained to hold that the impugned judgment of conviction is not based on sound reasoning and the evidence brought on record has not been correctly appreciated by the learned trial Judge. The prosecution has not been able to prove its case against the convict/appellant beyond any shadow of reasonable doubt, the benefit whereof shall go in favour of the accused/appellant.

9. We, therefore, accept this appeal, set side the impugned conviction and sentence of the appellant and acquit him of the present charge. He is present in Court on bail and stands discharged from the liability of bail bond. H.B.T./131/P Appeal accepted.