2021 PLP 1951 (MLD)

LAL JAN KHATTAK, J.

Through this judgment we shall also decide Criminal Appeal No.151-P/2021 as both the cases have emanated from same FIR bearing No.69 dated 10.03.2017 under section 9(c) CNSA/15 CNSA of police station Usterzai Kohat. Appellant Syed Jawad Hussain has been convicted and sentenced to imprisonment for life under section 9 (c) CNSA/15 CNSA with fine of Rs.400,000/- or in default whereof to further suffer simple imprisonment of one year with benefit under section 382-B, Cr.P.C., who has impugned his conviction and sentence through Cr. A. No. 1028-P of 2020 whereas appellant Mohsin Raza has assailed order of the learned trial Court dated 25.01.2021 whereby truck bearing registration No.K-8607/Peshawar (the vehicle ) has been confiscated to the State.

2. Brief facts of the case are that on 10.03.2017 (PW.5) Muhammad Afzal, SHO of police station Usterzai along with other police personnel was present at Marai Check Post for checking when in the meantime from Tera side the vehicle reached there which was signaled to stop. On checking, 30 packets of charas each of 1200/1200 grams lying in secret cavity made beneath the driver's seat of the vehicle were found which were taken into possession. The charas on weighment turned out to be of 36000 grams. From each packet, the complainant separated 5/5 grams contraband for the purpose of chemical analysis which he sealed in separate 30 parcels as representative samples whereas rest of the recovered contraband was sealed in parcel No.31.

3. On completion of investigation, challan was put in court which indicted the accused for the offence to which he pleaded not guilty. In order to prove its case, prosecution examined 7 witnesses whereafter statement of the accused was recorded wherein he professed innocence. After conclusion of the trial, the learned trial court found the appellant guilty of the charge and while recording his conviction sentenced him as mentioned above.

4. Arguments heard and record gone through.

5. It is the prosecution case that from the vehicle driven by the appellant 30 packets of charas were recovered which fact is evident from case murasila Ex.PA/1 and recovery memo Ex.PC but astonishing aspect of the case is that when parcel No.31, wherein the seizing officer had kept the 30 packets after separating therefrom the representative samples, was opened before the learned trial court it turned out to have only 28 packets instead of 30 as alleged in the FIR. Not only the above but another important fact which came to the fore was that representative samples for chemical analysis were taken only from 20 packets and not from 28. (cross-examination of PW-3).

6. Ibid aspect of the case is so startling that same has crumbled the prosecution case to dust. No doubt, huge recovery of contraband has been effected from the vehicle which, as per the prosecution, was being driven by the appellant but it is well settled that for bringing home guilt to an accused the prosecution must produce worth reliable evidence which is not the case in hand as de-sealing of parcel No.31 in the trial court negated the prosecution story given in the FIR. It has been held umpteenth time by the superior courts that even a slightest doubt in the prosecution case will be sufficient for acquittal of the accused because "it is better that 100 guilty persons should escape than that one innocent should suffer".

7. For what has been discussed above, criminal appeal bearing No.1028- P/2020 is allowed, the impugned judgment/conviction recorded by the learned trial court is set aside and it is directed that appellant Syed Jawad Hussain son of Syed Shah Hussain be set free if not required in any other case.

8. Above are the detailed reasons for our earlier short order of the even date.

9. So far as appeal bearing No. 151-P of 2021 preferred by appellant Mohsin Raza for return of the vehicle is concerned, suffice it to say that he had purchased the vehicle on 25.10.2019 i.e. after registration of the case, therefore, per judgment of the Hon'ble Supreme Court of Pakistan reported in PLD 2020 SC 299 he is not entitled to get it as at the relevant time he was not its owner, therefore, his appeal is found meritless and is dismissed as such. JK/151/P Appeal allowed.