2003 P Cr (PLP)

2. Being aggrieved by the conviction and sentence, both the appellants have filed instant Criminal Appeal No. 197 of 2002 which is before us for consideration.

3. Shortly narrated the facts are, that complainant Bhadur Khan S.H.O. Police Station Azakhel on 8‑5‑2001 was on mobile duty, when he received an information that huge quantity of narcotics would be smuggled/transported from N.‑W.F.P. to Punjab by a man and woman, in Bus No.JA‑8272 bound for Karachi. Upon receipt of this information, a Naka Bandi was conducted on 8‑5‑2001 at 22‑00 hours near Pir Pal Chowk. In the meanwhile, the bus in question was sighted coming from Peshawar. The bus was stopped for checking. On the rear seat of the bus, a man and a woman were found sitting. They were carrying plastic bags in their laps. The bags were opened and Charas and opium weighing 2 kilograms and 3 kilograms respectively were recovered there-from. On inquiry they disclosed their names as Johar Ali and Mst. Yasmeen. A meagre quantity was separated from the recovered contraband and sealed into parcels for transmission to the Office of Chemical Examiner, Peshawar. Both of them were arrested and a case was registered against them vide F.I.R. No.266, dated 8‑5‑2001 Police Station Azakhel under sections 6, 7, 9 of Control of Narcotic Substance Act, 1997.

4. The prosecution in order to prove its case produced four police officials, namely Inspector Salahuddin (P.W.1), A.S.‑I. Irshad Ahmad (P.W.2), S.‑I. Mukhtiar Ali (P.W.3) and Inspector Bahadur Khan (P. W.4).

5. After recording the prosecution evidence, the learned trial Judge examined both the appellants under section 342, Cr.P.C. wherein both of them denied the prosecution allegations and claimed to have been falsely charged. They led no evidence in defence.

6. At the conclusion of trial, the appellants having been adjudged guilty, were convicted and sentenced as noted above.

7. In support of the appeal, Mr. Suhail Akhtar, Advocate for the appellants contended, inter alia, that the impugned judgment and order of conviction is manifestly against the law, facts and material available on the record of the case and findings and conclusions arrived at are, on the face of it, erroneous and illegal and cannot be allowed to remain intact. The learned counsel submitted that P. Ws. Mukhtiar Ali, S.‑I. and complainant Bahadur Khan, Inspector contradict each other on material particulars which has made the recovery highly doubtful. The learned counsel further reiterated that the investigation has been conducted by the complainant, who is also a marginal witness and despite prior information stated to have been received by him about smuggling/transportation of the contraband no disinterested and impartial witness has been associated with the recovery proceedings. Concluding the arguments the learned counsel submitted that samples were dispatched to the laboratory with delay without any explanation and as such report of the analyst is of no avail to the prosecution. In support of the contentions reliance was placed on Mst. Iqbal Bibi v. The State 2000 PCr.LJ 1812 (Peshawar) and Mushtaq v. The State 2002 PCr.LJ 1312 (Peshawar).

8. Mr. Abdur Rauf Gandapur, Advocate appearing on behalf of Anti‑Narcotic Force, supported the impugned order of conviction and maintained that keeping in view the material available on the file, the learned trial Judge was quite justified to believe the prosecution evidence and pass an order of conviction. He contended that the discrepancies and contradictions pointed out by the learned counsel for the appellant in the statements of S.‑I. Mukhtiar Ali and Inspector Bahadur Khan, P.Ws., are insignificant and by no means harmful to the prosecution. He invited our attention to the case of Munawar Hussain and others v. The State reported as 1993 SCMR 789 and submitted that in narcotic cases approach of the Court should be dynamic and technicalities should be overlooked in the larger interest of the country and while deciding the case the Court should consider the entire material as a whole and if it is convinced that the case is proved then conviction should be recorded notwithstanding such procedural defect. Concluding the arguments the learned counsel reiterated that recovery of narcotics from possession of the appellants was effected in two stages i.e. inside the bus and outside the bus and sufficient material was brought on the record to connect the appellants with the crime in question, and it does not appeal to one's mind that such a huge quantity of narcotics could be implanted without any reason or ill‑will on the part of the police.

9. We have heard in detail the arguments of learned counsel for the parties, in the light of the material brought on the record.

10. It needs no reiteration that it is the primary duty of the prosecution to prove its case beyond reasonable doubt and its burden is not shifted under the presumption contained in section 29 of the Act. It only says that once the prosecution established recovery beyond doubt it is then that the burden is shifted. Section 29 of the Act does not absolve the prosecution of its primary duty to prove its case beyond doubt.

11. In the preset case, Inspector Bahadur Khan P.W. supported the contents of the F.I.R. and stated in his cross‑examination that he entered first followed by others for search of the bus. He cannot name those police officials who followed him. There were passengers in the bus. He did not ask any passenger, driver or conductor of the bus to become a witness to the recovery. The carton containing the contraband possessed by the male accused was taken into possession by him inside the bus and lie brought the same out from the bus while the female accused was having the other carton in her hand at the time of her deboarding from the bus. S.‑I. Mukhtiar Ali P.W. was standing close to the bus. He weighed the contraband in the light of bus and also in the light of police mobile vehicle. He prepared first the recovery memo. and theta drafted the Murasila. He brought the accused and the contraband .to the police station.

12. S.‑I. Mukhtiar Ali P. W. admitted having witnessed recovery memo. (Exh.P.C.) and stated that recovery was made in his presence. It is in his cross‑examination that at the time of checking of the bus they were standing on the road side. One constable had accompanied the Investigating Officer during search but he does not remember his name. He was at a distance of 10 paces from the bus at the time of search. Both the packets were in the hands of the Investigating Officer when he deboarded the accused from the bus. The Murasila and the recovery memo. were written by him at the dictation of Investigating Officer.

13. Having heard the arguments of learned counsel for the parties and taking notice of the contradictions pointed out by learned counsel for the appellants in the statements of S.‑I. Mukhtiar Ali and S.H.O. Bahadur Khan P.Ws. we find ourselves in agreement with learned counsel for the appellants that prosecution has failed to prove its case beyond shadow of reasonable doubt and the recovery has not been satisfactorily proved. Both the witnesses contradict each other on point of recovery.

14. It has also been contended with Justification that there was considerable delay in dispatching the parcels to the laboratory, which makes the recovery doubtful. The alleged recovery having been effected on 8‑5‑2001 both the parcels i.e. 1 to 12 containing Charas and 14 containing opium were received in the office of Chemical Examiner, Peshawar on 22‑5‑2001. The report (Exh.P.E.) of the Examiner is dated 7‑8‑2001. There is no explanation on record as to in whose custody the said parcels were lying during this period. No implicit reliance can be placed on the report in view of aforesaid reasons.

15. Having held that prosecution has failed to prove its case against the appellants beyond pale of reasonable doubt we accept the appeal, set aside the impugned order and acquit the appellants of the charges levelled against them. The appellants shall be released from jail forthwith if not required to be detained in any other case.

16. The above are the reasons in support of short order elated 11‑12‑2002 of this Court, whereby the appeal was accepted sand conviction and sentence of the appellants were set aside and appellants were directed to be released forthwith if not required in any other case. N.H.Q./701/P Appeal accepted.