' MUHAMMAD QAIM JAN KHAN, J.---This is a criminal appeal filed by Mst. Shakeela against her conviction and sentence recorded by Additional Sessions Judge-IV, Peshawar on 4-6-2004 vide which the appellant has been convicted under section 9 C.N.S.A. And sentenced to five years R.I.
With a fine of Rs.50,000 or six months imprisonment in default. However, benefit of section 382-B, Cr.P.C. Has been extended to the accused appellant.
2. Short facts of the case are that on 26-9-2003 at 1430 hours, Inayat-urRehman, A.S.-I., Police Station, West Cantt.. Along with police party was on mobile 'gasht' of the Illaqa. On receiving some information he made 'nakabandi' near Stadium Chowk, Peshawar Saddar. In the meanwhile, a woman was coming from Bara side. She was stopped. She disclosed her name as Mst. Shakeela wife of Hazrat Gul resident of Wahid Garhi, Spin Jumaat, now at Qambar Khel Bara, tribal territory.
Lady constable Chaand Bibi searched the said lady and 5 Kgs. Charas in the shape of 5 slabs were recovered from her which the accused appellant had tied with her body under the shirt with help of a black rope. 4 grams Charas from each slab was separated for chemical analysis and sealed in separate parcels. Remaining Charas was also sealed in another parcel and a case vide F.I.R. No.541 dated 26-9-2003 under section 9 C.N.S.A. Was registered against Mst. Shakeela in Police Station, West Cantt.
3. After completion of the investigation, challan was submitted in Court. The accused was brought before the Court and charged under section 9 (c) C.N.S.A. To which she pleaded not guilty and claimed trial. Trial commenced.
4. The prosecution examined Inayatur-Rehman A.S.-I. As P.W.1 and Rehmanullah A.S.-I. As P.W.2 and closed its case on 29-4-2004. On 10-5-2004, the accused was examined under section 342, Cr.P.C.
She pleaded innocence but neither produced any defence nor wished to be examined on oath. So after hearing the prosecution and defence, the trial Judge passed the aforementioned conviction and sentence.
5. Counsel for the appellant mainly argued that F.S.L. Report does not support the prosecution case.
That contraband has been sent to the laboratory after two weeks and that the prosecution evidence contradicts each other.
6. Learned State counsel mainly argued that 5 Kgs. Charas have been recovered from the direct possession of the accused appellant in presence of the recovery witnesses. F.S.L. Report is positive and the conviction and sentence is based on sound reasons.
7. We have heard learned counsel for appellant and the State and have scrutinized the available record.
8. Admittedly, in the instant case, the contraband has been sent to the laboratory after a prolong delay for no obvious reason on the part of the prosecution. The occurrence is that of 26-9-2003 while the sample has been received on 9-10-2003 i.e. After thirteen days. No plausible explanation for this delay is available on the record. Moreover, there is material contradictions in the statements of P.W.1 (Investigating Officer.) and P.W.2, marginal witness of recovery memo.
According to P.W.2, Rehmanullah, the lady constables did not accompany the police party from the police station and those were summoned by the Investigating Officer to the spot later on while on P.W. I (Investigating Officer) in his statement states that he arranged lady constables and after that made 'Nakabandi'. In the F.I.R., he has also stated that lady constables accompanied them from the police station to the spot. This contradiction cannot be reconciled. Moreover, best evidence has been withheld and in the instant case, at least lady constable Chaand Bibi should have been produced but instead Rehmanullah has been produced which damaged the prosecution case to a great extent. As there are contradictions between the statements of the P. Ws. And the contraband has been sent to the F.S.L. At a very belated stage and best evidence has been withheld by the prosecution for no obvious reason, this appeal is accepted, the impugned judgment/ sentence of the learned trial Court dated 4-6-2004 is set aside and the accused appellant Mst. Shakeela is acquitted of the charge. She shall be released from jail forthwith if not required in any other case.