2023 PLP 71 (YLRN)

MUSARRAT HILALI, J.

This criminal appeal has been directed against judgment dated 26.11.2019 passed by learned Judge, Special Court, (CNS) Peshawar, whereby the present appellant, involved in case FIR No. 78, dated 24.10.2017, under sections 9(c)/14/15 CNSA, was convicted and sentenced to life imprisonment, besides payment of fine of Rs. 200,000/- or in default thereof to further undergo SI for one year with benefit of section 382-B, Cr.P.C.

2. Brief facts, as reflected from the record, are that on 24.10.2017, Sami Ullah Sub-Inspector ANF (PW-3) along with other nafri was busy in road checking near Rashakai motorway toll plaza, when at 1500 hours a passenger Bus bearing registration No. E-1485-Sindh arrived from Mardan side, which was stopped for the purpose of checking. During checking, two plastic sacks were found, regarding which a query was made from the two persons sitting on the last seat of the Bus, out of them, one had admitted its ownership. Both the persons along with the two sacks were got down from the Bus. Both the persons were brothers inter se and disclosed their names as Sajjad Khan and Irshad Khan. Search of the sacks leads to the recovery of 50 packets charas, total weighing 60 kilograms, accordingly, the above referred case FIR was registered against them. Later on, the accused also disclosed the name of one Ibrar khan, who was also arrayed as accused in the case.

3. After completion of investigation, complete challan was submitted before the learned Judge, Special Court (CNS) Peshawar, for trial, who, on its conclusion, vide judgment dated 26.11.2019, convicted and sentenced the accused-appellant, as referred to above, while co-accused Irshad Khan was acquitted of the charge by extending him benefit of doubt whereas Ibrar Khan was declared as proclaimed offender, hence, the instant appeal by Sajjad Khan, the appellant.

4. Arguments heard and record perused.

5. Admittedly, the recovery was not effected from the direct possession of the appellant rather it was made from the passenger Bus. It is also evident from the record that the sacks containing the alleged charas were lying on the seat of the passenger Bus for which the two brothers, i.e., the present appellant and the acquitted co-accused Irshad khan, were booked. Who had placed these sacks on the seat is a mystery which remained un-veiled not only during the course of investigation but also during the course of trial. Though, as per contents of murasilla, one of the accused had admitted ownership of the sacks but it is neither acceptable to the human experience that a person keeping some incriminating substance in a sack would ever own it and that too when it is detected by the police and even if for a while it is accepted to be true, this statement of the appellant being a statement before the police is also not admissible in view of Article 38 of Qanun-e-Shahadat.

6. Apart from the above, there are also unconformable contradictions in the statements of PWs which makes the story of the prosecution doubtful because the complainant (PW-3) stated that the name of the appellant was not mentioned on the sacks while PW-4, who is witness to the recovery memo, stated that name of the appellant was mentioned on the sacks. Again, neither daily diary as to departure of the seizing officer from the police station to the spot is available on record nor statements of the police official of the concerned police station present on the spot were recorded.

7. Though, FSL report is in positive but the same too is of no avail to the prosecution because there is a question mark as to safe transmission of the representative samples to the laboratory as neither 'randari' receipt is available on record nor its receipt number is mentioned in the application drafted for sending the samples to the Laboratory. Also lack 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, which is mandatory is another loophole which render the FSL report unreliable.

8. It is well-settled principle regard-ing dispensation of justice in criminal cases that if any reasonable doubt is created in the case of the prosecution then its benefit is to be extended to the accused but here in the prosecution case, there are multiple circumstances creating reason-able doubts as to the guilt of the appellant and when so by extending the benefit of doubt to the appellant, this appeal is allowed, the judgment impugned herein is set aside, accordingly, 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/187/P Appeal allowed.