2019 PLP 1649 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Faizan Ali appellant had allegedly been apprehended while driving a motorcar from some secret cavities of which ten packets of charas were recovered on 24.07.2011 and on the basis of such recovery he was booked and tried in case FIR No. 307 registered at Police Station Sarband, Peshawar for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997. One sample of five grams had been separated from each of the recovered packets which samples had subsequently been tested positive by the Chemical Examiner. After a regular trial the trial Court convicted the appellant for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to rigorous imprisonment for ten years and a fine of Rs. 1,00,000/- but on appeal the High Court converted the appellant's conviction from one under section 9(c) to that under section 9(b) of the Control of Narcotic Substances Act, 1997 and reduced his sentence to that already undergone by him. Hence, the present appeal by leave of this Court granted on 24.09.2014.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

3. According to the FIR and the Memorandum of Recovery ten packets of charas weighing one kilogram each had allegedly been recovered from the custody of the appellant and it had been maintained by the prosecution that from each of the said packets one sample weighing five grams had been separated for chemical analysis. Shaukat Khan, S.I. (PW2) had stated before the trial Court in black and white that each of the recovered packets had only one slab in it but when the recovered substance had been produced before the trial Court and was opened it was revealed that ten packets allegedly recovered in this case contained 96 slabs in all. It was alleged by the prosecution that each of the parcels separated from the recovered substance was affixed with three seals reading S.K. but the record shows that the monogram carrying the alphabets S.K. was not found available in the case-property at all. The record of the case also shows that nobody had appeared before the trial Court to confirm safe custody of the recovered substance at the Police Station and the Moharrir had also not appeared before the trial Court. No witness had been produced before the trial Court to state that the recovered substance or the parcels had not been tampered with while in transmission to the Forensic Science Laboratory or the office of the Chemical Examiner. The shape in which the recovered property was produced before the trial Court indicated that the property so produced before the trial Court was different from the property allegedly recovered at the time of the raid and recovery. For all these reasons we have found the case against the appellant to be a case full of doubts the benefit of which has to be extended to him. This appeal is, therefore, allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. As regards the appellant's return to the Elite/Police Force it shall lie within the departmental authorities' discretion whether to adjust a person of such a background back in the Elite/Police Force or not and we would not like to comment on that aspect of the case. MWA/F-7/SC Appeal allowed.