P L D 2007 Peshawar 158 (PLP)

TARIQ PARVEZ KHAN, C.J:--Abdul Ali is accused of case F.I.R. No.53 dated 14-11-1997 being round in possession of 17 Kgs. of opium, out of which 3 Kgs. was wet and the remaining i.e. 14 Kgs. was dry. He was tried by learned Judge Special Court (C.N.S.) Peshawar and through impugned judgment dated 1-9-200 stands convicted under section 9(c) C.N.S.A. and sentenced to life imprisonment with a fine of rupees one lac (Rs. 1,00,000) or in default to suffer further one year S.I. with benefit of section 382-B, Cr.P.C.

2. Short facts of the case are that on report of Muhammad Parvez (P.W.5), Naib Subedar, F.C. Line Bara, murasila was taken down by Mir Badshah Khan (P.W.3).

3. Three samples were sent for analysis, one from wet opium and one each from two packets containing dry opium, report of which is received in positive,

4. Appellant was even earlier cried and convicted on 3-2-2001 but filed an appeal before this Court which was allowed on 24-6-2003, case was remanded for re-examination of the accused with permission to adduce defence evidence; if any. After remand, now the present appeal has been filed against the impugned judgment

5. In this case the initial recovery was made by Muhammad Parvez (P.W.5), who was then Naib Subedar in Frontier Constabulary in the presence of Sabz Ali (P.W.4) of the swine Constabulary where he was Lance Naik and they had taken the accused as well as recovered narcotics to the police for registration of the case which was registered on 14-11-1997.

6. Question before us is, if the recovery was made on 14-11-1997 or a day prior and similarly we arc to determine the exact date of arrest of the appellant.

7. Mian Baz Afridi, District Officer F.C. has appeared as C.W. 1, who has exhibited document as Exh.C.W.1/1 which clearly shows that accuse-d was arrested on 13-11-1997 and was taken to the Police Station on .that day and despite request made by the Constabulary Staff; police did not lodge the report nor arrest the accused for which the accused was taken 'back to the F.C. Headquarter and on interference of high ups, a report was made on the next day.

8. If facts are true that on 13-11-1997 appellant was arrested with narcotics then we failed to understand that as to why on that day police did not register the case. We could have condoned the negligence on the part of the police provided the police had come up with truth.

9. Mir Badshah Khan (P.W.3) Investigating Officer, denied the suggestions put forth by the defence that the accused was arrested on 13-11-1997 and was produced before him whereas Sabz Ali (P.W.4) stated that accused was taken to the Police Station, the day when he was arrested, but no report was made and they were. To take the accused on the next morning to Police Station A.N.F.

10. Muhammad Parvez (P. W.5) in examination-in-chief in the first line stated that accused was arrested by him and by Said Wali at 0930 hours on 14-11-1997 and denied the suggestions that he was arrested on 13-11-1997, which is the fact.

11. Where both the agencies i.e. Police and Frontier Constabulary Staff are suppressing the facts which arc borne out from their own record, they arc held to be dishonest and where witnesses held to be dishonest, it will be hard to rely on their statements.

12. Since the arrest is proved on record on 13-11-1997 but shown on 14-1 1-1997 and it is admitted by Mir Badshah Khan (P.W.3) that when the opium produced before him was opened and not scaled.

13. Perusal of Exh.C.W.1/2 has also created doubts that how much total quantity they have recovered from the appellant because as per statement of C.W.1 it was 3 Kgs. wet and 15 Kgs. dry opium which is against the statement of Mir Badshah Khan (P.W.3).

14. Besides dishonesty apparent in the investigation, appellant has appeared as his own witness for defence on Oath supported by as many as three defence witnesses with a plausible theory that he himself was not riding the bicycle but somebody struck him with the bicycle and himself ran away on seeing the F.C. personnel, it will also create doubts in the case of the prosecution.

15. For reasons stated above, we extend the benefit of doubt to the appellant. This appeal is therefore, allowed. Conviction and sentence of the appellant recorded by the learned trial Court are set aside and he is acquired of the charges. He be set at liberty forthwith; if not required in any other case. H.B.T./142/P Appeal allowed.