P L D 2003 Peshawar 128 (PLP)

Such findings .of conviction and sentence stands assailed through this appeal.

2. Learned counsel for the appellant argued that the whole case is concocted and narcotics planted. He submitted that no independent evidence has been led to prove that the contraband were recovered from the person of two ladies, because the lady constable is the only so-called recovery witness. Submission is made that according to the statement of Investigating Officer besides the two accused ladies no other female was travelling in the bus in question but such statement is contradicted by female searcher, stating that number of other women were resent in the bus. It is argued that according to the statement of Investigating Officer both the appellants were possessed of 2 Kgs. of heroin each which was in the shape of 4 slabs each, and three grams from each packet, were separated for onward transmission to the Chemical Laboratory whereas according to the report i.e. Exh. PE, only three grams, that is one sample was received. It is argued that Muhammad Zeb (P.W.1) has admitted in his cross-examination that test carried in respect of sample in question is a presumptive and would not indicate that the material tested is 100% heroin.

3. He argued that as required under CNS Act regarding production of female accused before the trial Judge and the manner in which the sample has been taken and the quantity sent would indicate that the whole prosecution case is suffering from serious irregularities amounting to illegalities.

4. Learned Deputy Attorney-General appearing for the State argued that two female accused-appellants, both belong to Province of Punjab and against whom, there is no iota of evidence that any of the prosecution witness is motivated to bring false charge against them. He submitted that recoveries from their person stands proved through the statement Amanullah Khan, Inspector i.e. Investigating Officer fully supported by Mst. Raj Bibi, Lady searcher.

5. As we intend to record acquittal of the two appellants on the basis of benefit of doubt but with regard to the statement of Amanullah Khan, Inspector and Mst. Raj Bibi related to number of samples prepared at the time of recovery. It is in the statement of Amanullah Khan that the two appellants were carrying 2 Kgs of heroin each consisting of four packets each and then from each such packet he has separated three grams making the total quantity for test to be 24 grams and there should have been eight separate parcels.

6. Perusal of Exh. PE i.e. report of the Chemical Examiner is, in respect of three grams only which would mean that he has received only one parcel containing heroin weighing three grams out of the eight samples. It is not known that this particular sample out of the eight samples was recovered from which of the two accused even if the recovery is taken to be proved.

7. Because of lack of connection of either of the appellants through evidence with the parcel opined to be containing heroin cannot be established. Benefit of such doubt is extended to both the appellants and their conviction and sentence are, therefore, set aside and they are acquitted of the charge. They be released forthwith from jail if not required in any other case. N.H.Q./726/P????????????????????????????????????????????????????????????? ??????????????????????? Appeal accepted.