2023 P Cr (PLP)

S M ATTIQUE SHAH, J.

Through instant criminal appeal filed under section 410, Cr.P.C. read with section 24 of the Khyber Pakhtunkhwa Control of Narcotics Substances Act, 2019, the appellant Fazal Hameed has challenged the impugned judgment dated 11.06.2021, rendered by learned Additional Sessions Judge-III/Judge, Special Court, Charsadda; whereby appellant involved in case FIR No.650 dated 10.08.2020, unde section 9-D, KP CNSA, 2019, Police Station Charsadda, was convicted under section 9-D, KP CNSA and; sentenced to undergo fourteen (14) years' R.I along with fine of Rs.5000,000 (Five lac); or in default thereof to suffer further five (05) months' SI. However, benefit of section 382-B, Cr.P.C. was extended to the appellant/convict.

2. As per prosecution case, during barricade conducted on spy, information qua smuggling of narcotics, the local police intercepted vehicle/Vego bearing registration No.KS-3332 Sindh; being driven by appellant. On search, ten packets of Charas total weighing 10,000 grams were recovered from secret cavities of the vehicle in question. Personal search of the appellant, led to the recovery of CNIC, driving license, ATM Card in the name of appellant; cash amount of Rs.2700/-, registration certificate of the vehicle in question and two mobile phones containing different SIMs fully detailed in the murasila; from possession of appellant; who was arrested in instant case and a case vide FIR mentioned above was registered against him.

3. After completion of investigation, complete challan against the appellant was submitted before the learned trial Court; where after framing of formal charge against him, the prosecution in order to prove its case, examined as many as nine (09) PWs. On close of prosecution evidence, statement of appellant was recorded under section 342, Cr.P.C.; wherein he denied the allegations levelled against him; however, he did not opt to be examined on oath under section 340(2), Cr.P.C. nor wished to produce defence evidence. After hearing learned counsel for the appellant, as well as Public Prosecutor on behalf of the State, the learned trial Court convicted and sentenced the appellant vide impugned judgment; hence instant criminal appeal.

4. I have heard learned counsel for the appellant, learned AAG for the State and gone through the available record.

5. Perusal of contents of murasila Ex.PA/1, reveals that 10 packets of Charas were recovered by PW.3 Mujeeb Khan Khilji ASI (Seizing Officer/complainant) from secret cavities of the vehicle driven by appellant in presence of Habib ur Rehman No.962 (PW.4) and other marginal witness. Likewise, as per PW.3, ten (10) parcels of samples separated from alleged contraband were sent to the FSL for chemical analysis; which fact is also affirmed by the FSL report available on file. However, during cross-examination of PW.3, after perusal of pictures drawn by the local police qua recovery of contraband, 12 packets have been shown recovered from the vehicle in question. On confrontation of learned defence counsel qua number of contraband, PW.3 replied that after completion of spot proceedings, two packets of Charas were handed over to the informer; but as per his assertion neither he brought it into if-le notice of high-ups nor obtained any permission from the competent Court for the purpose. No samples were admittedly separated from the ibid two parcels. Besides, the fact qua recovery of 12 packets as well as handing over of two packets out of recovered contraband, to the informer has not been mentioned anywhere on record. Moreover, Habibur Rehman constable marginal witness (PW.4) narrated a different story qua number of packets and negated presence of informer on the spot; so what to say about handing over of two packets of contraband to the informer. He stated that 14 packets were shown to be recovered in the present case. He also admitted that in his presence, the ibid four packets were not handed over to anyone. The versions of both these witnesses, were further belied by PW.5 Momin Khan constable No.225; who took the samples to the FSL. According to him, he took 16 parcels of samples to the FSL in instant case; who admitted that if the laboratory received more or less than 16 parcels in the present case, the same will not pertain to the instant case. Likewise, the Investigation Officer (PW.8) also admitted in his cross-examination that 16 parcels were received in the laboratory; so different versions of four officials qua separation of samples as well as taking it to the FSL have come forward in the prosecution evidence; which creates doubt qua number of ibid samples. According to PW.3, the samples were handed over to PW.5 for taking to the FSL on 10.08.2021 but the same were received in FSL on 12.08.2021 after delay of two days; which has not been plausibly explained by any of the witness. Moreover, this witness has not mentioned the date on which he took the samples to the FSL. Even, it has not been brought on record that in whose safe custody, the ibid samples were lying during period. As per assertion of PW.5, the samples were handed over to him by Shah Jehan Khan Investigation Moharrir; meaning thereby that the same were received by him; whose signatures were also available on register 19; while according to PW.8 (Investigation Officer), the samples were handed over to PW.7 Niaz Muhammad ASI; who transmitted the same to the FSL. After perusal of extract of register No.19 Ex.PW.7/1, during cross-examination of PW.7, his signature was not available on the same; rather signature of Shah Jehan Investigation Moharrir was available thereupon. In order to dig out the actual truth qua safe custody of samples as well as its transmission to the FSL, examination of ibid Shah Jehan Investigation Moharrir was essential; who was not examined by prosecution during trial; for the reasons best known to them; which is clear violation of provision of Article 129(g) of Qanun-e-Shahadat Order, 1984; as the prosecution had withheld its best evidence. Reliance be placed on case of "Muhammad Shah Khesro and another v. The State and others" (2016 PCr.LJ 606), wherein this Court has held as under:- Article 129(g)

Withholding of evidence

Presumption

If a best piece of evidence is available with a party and the same is withheld by him, then it is presumed that the party has some evil motive behind it in not producing that evidence."

6. Perusal of record as well statement of complainant reveals that 3/3 monograms were affixed on the parcels while one monogram was placed inside the parcel; whose version was rebutted by PW.5; by stating in his cross-examination that one seal monogram was affixed on case property; while he did not know qua putting/placing one monogram inside the parcel; so it is not clear that whose version is correct and who was not present on the spot at relevant time; which creates doubt qua their presence on the spot as well as recovery of contraband from the vehicle of appellant.

7. PW.3 stated that the case property and sample were handed ever to the Moharrir in the Police, Station by him; but as per PW.6 Bacha Jan No.334, in his presence, 10 packets of Charas, 11 parcels, Vego along with three pictures were handed over to the I.O. by PW.3; which assertion was not acceded to, by PW.8; who only admitted to the extent of handing over three photographs pertaining to the recovered Charas by PW.3.

8. Perusal of contents of mruasila and recovery memo reveals that photocopy of registration certificate qua vehicle in question in the name of appellant was also recovered from his possession; however, after perusal of the same during cross examination of PW.3, it was found in the name of one Shereen Gul; which fact was also affirmed by Investigation Officer. Likewise, on examination of vehicle as well as its pictures, the learned trial Court during the cross-examination of PW.3, has observed that there is no special secret cavity except the manufactured cavities; which rebuts the version of prosecution qua secret cavities in the vehicle in question.

9. In view of above, this Court is of the opinion at the prosecution has miserably failed to prove its case against appellant beyond any shadow of doubt as the prosecution witnesses are not in line with each other on material points qua recovery of contraband, number of samples and safe transmission of the same to the FSL, creating doubt qua mode and manner of recovery of contraband; as well as presence of alleged witnesses on the spot; the benefit of which must be extended to the appellant. It is settled principle of law that for giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a single circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Wisdom is derived from the case of "Tariq Parvez v. The State" (1995 SCMR 1345). The learned trial Court by ignoring the above loop holes in the prosecution evidence has fallen in error while convicting and sentencing the appellant vide impugned judgment; which is liable to be set aside. Consequently, instant criminal appeal is allowed, the impugner' judgment dated 11.06.2021, rendered by learned Additional Sessions Judge-III/Judge, Special Court, Charsadda, is set aside and; the appellant/convict Fazal Hameed is acquitted from the charges levelled, against him. He is in custody, be released forthwith if not wanted in any other case. The above are reasons of my short order of even date. SA/270/P Appeal allowed.