' MUHAMMAD QAIM JAN KHAN, J.---This is a criminal appeal filed by Sana Gul son of Muhammad Saleem, Afghan Refugee resident of Sheikh-Abad Camp against his conviction and sentence recorded by Judge Special Court, Mansehra dated 4-10-2003 vide which the appellant has been convicted under section 9 CNSA and sentenced to 6 years R.I. And to pay a fine of Rs.15,000 or in default to suffer 1-1/2 years further R.I. Benefit of section 382-B, Cr.P.C. Has been extended to the accused and case property has been ordered to be destroyed after the period of appeal/revision.
An amount of Rs.10,000 cash which was recovered from the accused was ordered to be returned to him.
2. Short facts of the case are that on 27-2-2003 at 16-30 hours Abdul Saboor Khan Inspector S.H.O., Police Station City Mansehra received information that famous Narcotics seller Sana Gul is busy in selling narcotics in his Hujra and on this information he alongwith police party reached the spot and raised the Hujra of the accused appellant and in the room of the Hujra beneath the double bed recovered 2500 grams Charras which was wrapped in handkerchief. The Charras was in the shape of Pattas and 4 gram from each Patta was separated for chemical analysis and the remaining Charras was also sealed. An amount of Rs.10,000 was also wrapped in plastic bag which was also taken into possession. The accused was arrested on the spot and a case under section 9 CNSA was registered against him in Police Station City Mansehra vide F.I.R. No.131 dated 27-2-2003.
3. After completion of the investigation challan was submitted in Court. Accused was brought before the Court and charged under section 9 CNSA for having 2,500 grams Charras in his illicit possession. The accused did not plead guilty and claimed trial. Trial commenced. The prosecution produced Abdul Saboor Khan S.H.O. Inspector, Police Station City Mansehra, Investigating Officer, as P.W. 1, Muhammad Ajmal A.S.-I. As P.W.2 (recovery witness) and Mukhtiar Ahmed MHC as P.W.3. He is acquainted with the handwriting and signature of Muhammad Khalid A.S.-I. On 6-9-2003 accused was examined under section 342, Cr.P.C. He pleaded innocence but produced no defence nor wished to be examined on oath. Consequently, after hearing the prosecution and defence the trial Judge passed the aforementioned conviction and sentence.
4. Aggrieved from the said conviction and sentence of the trial Court, the appellant has preferred the instant appeal.
5. Learned counsel for the appellant mainly argued that the .Appellant has been falsely implicated in the instant case and no cogent evidence is available on the record against him. Further argued that the Hujra is a common Hujra of all the three brothers and it is accessible to all the people.
Further argued that the F.S.L. Report has been delayed by the Investigating Officer for no cogent reasons and that no private witness has been procured by the Investigating Officer although the place of occurrence is situated in a thickly-populated area. Learned D.A.-G. Strenuously argued that recovery has been effected from the Hujra of the accused and that the burden was on the accused that it is a joint Hujra and the private witnesses are not mandatory in CNSA cases.
6. We have heard the learned counsel for the appellant and the D.A.-G. Admittedly, the Hujra wherefrom the contraband Charras, has been recovered is a joint Hujra and belongs to all the three brothers of the accused-appellant. This factum has been admitted by the Investigating Officer in his cross-examination who appeared as P.W.1. It is also admitted in his cross-examination that the said Hujra is accessible to every body. The contraband has been recovered under a double bed lying on the earth from a room which is situated in a joint Hujra of all the three brothers.
Moreover, according to P.W.2 the Investigating Officer on the same day had also registered a case of narcotics against one Mateen who is the brother of the present appellant. The contraband has not been sent to the F.S.L. On the same day. The occurrence is that of 27-2-2003 while the contraband has been sent on 1-3-2003 for no obvious reasons. As far as the list of previous conviction is concerned it was the bounden duty of the prosecution to have followed section 221, Cr.P.C. While framing the charge but that has not been done in accordance with law and they have simply exhibited a list, nor any certified copy of the judgment or F.I.R. Has been placed on the record. As far as the question of private witness is concerned the CNSA has got no such liability. So in this background of the case as the prosecution case is highly doubtful, the benefit of it must go to the accused and we while accepting the appeal in hand, set aside the conviction and sentence of the trial Court and acquit the accused of the chargelevelled against him in this case. He be set at liberty if not wanted in any other case.