2020 P Cr (PLP)

WAQAR AHMAD SETH, C.J.

The appellant Aman ul Haq son of Muhammad Ullah resident of Mohallah Haji Abad, Sheikhan, Peshawar charged in case registered vide FIR 197 dated 02.03.2009 under section 9(c), Control of Narcotic Substances Act, 1997 of Police Station Phandu, Peshawar. Thus was convicted by the learned Additional Sessions Judge-V/Judge Special Court, Peshawar vide order dated 07.04.2016, and convicted and sentenced under section 9(c), Control of Narcotic Substances Act, 1997 for four years rigorous imprisonment along with fine of Rs. 40,000/- OR in default of payment of fine to undergo further two months' SI Benefit of section 382-B, Cr.P.C. was extended as well. Hence the instant appeal under section 410, Cr.P.C. read with section 48 of Control of Narcotic Substances Act, 1997 against.

2. The brief facts which have led to the present appeal are that on 02.03.2009, Badshah Khan, the Station House Officer of Police Station Phandu, Peshawar along with other Police Personnel was present at Jameel Chowk for the purpose of Nakabandi, received information that huge quantity of narcotics will be transported to Punjab through ring road through motorcar bearing 4122/LRL (herein after called vehicle). In the meanwhile, the vehicle emerged on the scene from Kohat Road, which was intercepted. From front seat of the vehicle a person came out and tried to escape but overpowered. On query he disclosed his name Aman ul Haq (the present appellant), while the co-accused Noor Rehman who decamped from the spot. The cursory checking led to the recovery of 15 packets of 1000 gram heroin (in toto 15 Kilograms heroin), which were lying on engine beneath the bonnet wrapped in shopping bag. The Seizing Officer separated 1/1 gram from each packet and sealed into parcels Nos. 1 to 15 by affixing 3/3 seals marked as "PU", while the remaining stuff was sealed into another parcel, in presence of other marginal witnesses.

3. In due course of time and process, the appellant, was convicted and sentenced by the competent Court of law as per detail well mentioned in first para of this judgment.

4. In the first round of the litigation, appellant filed Criminal Appeal No. 194/2013 which was partially allowed/accepted vide order dated 13.06.2013, and the case was remanded back to the trial Court. Relevant abstract from the order dated 13.06.2013 is reproduced below;- "Accordingly, for the reasons stated hereinabove, this Court partially allow the appeal, set aside the conviction and the sentence inflicted upon the appellant and send the case back thereto for decision afresh after having fresh samples and getting them examine from chemical examiner duly appointed in term of section 35 of the Act, read with rule 3 of the Government Analysts Rules 2001 in terms of the prescribed qualification."

5. It is pertinent to note that after the remand thus charge was framed against the appellant by the competent Court of law. However on the directions of appellate Court samples were taken again and were dispatched to PCSIR laboratory, Peshawar, for fresh report/analysis. This Court deemed it appropriate to reproduce the abstract of lab report which is as under;- Sample Nos. Heroin with other related alkalaids. Parcels Nos. 1 to 5, 7, 8, 10 to 12 and

15. Not detected. Parcel No. 6. 7% Parcel No. 9. 10% Parcel No. 13 11% Parcel No. 14 02% However, the appellant was convicted later on vide order dated 07.04.2016 by Additional Sessions Judge- V/Judge Special Court, Peshawar.

6. Later on appellant filed Cr. M. No. 146-P/2016 for suspension of his sentence, which was allowed vide order dated 05.05.2016 and sentence awarded to the appellant was suspended on furnishing bail bonds in the sum of Rs. 5,00,000/- with two sureties to the satisfaction of learned Additional Registrar of this Court. Hence the instant appeal with the request that appellant be acquitted from the charges levelled against him.

7. Arguments heard and record perused with the able assistance of learned counsel for the parties.

8. Perusal of record reveals that in first round samples were taken on 02.03.2009 while dispatched to the Forensic Science Laboratory on 04.03.2009. However, the report thereof was received on 19.03.2019. The delay to two days so caused in sending the samples to the Laboratory is unexplained. The report thereof was in positive, but, after the remand of the case again directions were made that fresh samples be taken for chemical examination afresh. Thus the orders were complied with and fresh samples were dispatched to the PCSIR Laboratory, Peshawar and reported in this regard received which has already been reflected in the para No. 5 of this judgment. The report reveals that in parcels Nos. 1 to 15 there were total 300 grams heroin and not 15 Kilograms.

9. If one goes to the record will find glaring contradictions in it, which creates reasonable doubt in a prudent mind about the guilt of accused as the occurrence has not taken place in the mode and manner which described by the prosecution, thus, giving benefit of doubt appellant will be entitled to such benefit not as a matter of grace and concession; but, as a matter of right. In the present case all the above noticed serious issues create doubt in mind regarding the proving of guilt of appellant beyond the reasonable doubt and these material facts favouring the appellant were not considered by the learned trial Court, while appraising the evidence of prosecution. Moreover, it is established fact that vide FSL report Ex.PW 2/4 dated 4.3.2009, the contraband were declared as Heroin while in subsequent report, suggests otherwise, creates serious doubts in prosecution and benefiting the appellant-accused.

10. Accordingly, the appeal in hand is 'ACCEPTED' by setting aside the conviction and sentence recorded by trial Court vide impugned judgment dated 07.04.2016, of learned Additional Sessions Judge-V/Judge Special Court, Peshawar and acquit the accused from charges levelled against him in this case. As the appellant is already on bail vide order dated 05.05.2016, of this Court, so the sureties are discharged from the obligation of their bail bonds. SA/64/P Appeal accepted.