' RAJ MUHAMMAD KHAN, J.---This is criminal appeal against the judgment dated 12-5-2006 passed by the learned Additional Sessions Judge-III/JSC, Kohat in Hadd Case No,12/2004 whereby the accused-appellant was found guilty under section 9(c) of the Control of Narcotic Substances Act, 1997 (C.N.S.A.) and was convicted and sentenced to undergo R.I. For five years and to pay fine of Rs,5,000 or in default of payment of fine to further undergo S.I. For six months. Benefit of section 382-B, Cr.P.C. Was also extended to the accused. Case property was ordered to be confiscated to the State.
2. The episode leading to the present case is that Mr. Ihsanullah Khan, S.H.O. Police Station, Jangle Khel District Kohat along with police party formed a picket on 11-6-2000 at 1200 hours at Gulshan Abad Check Post when a vehicle (Flying Coach) happened there coming from Darra Adam Khel. It was stopped for checking in which the accused appellant was found having a Gas Cylinder with him. On suspicion, he was deboarded from the vehicle and the cylinder was broken with hammer and chisel from which five packets of yellow colour containing charas gardah were recovered.
Among these packets, two were of blue colour while two packets were wrapped with adhesive tape which on weighment found to be 4400 grams. Four grams charas from each packet was separated for chemical examination thereof which were sealed into parcels while remaining charas was separately sealed into parcel and placed in the same cylinder. The accused named himself as Rehmat Wali but his name was Rehman Khan in the National Identity Card recovered from him. He was accordingly arrested under sections 3/4 PO and 9 C.N.S.A. And the report was drafted against him through murasala which was sent by the Investigating Officer to the Police Station where the case was formally registered against him vide F.I.R. No,392 dated 11-6-2000 at 1245 hours under sections 3/4 PO and 9 C.N.S.A. Constables Rajab Ali and Haleem Shah were made marginal witnesses to the recovery memo. Prepared by the S.H.O. The contraband charas was got examined from the FSL Crimes Branch, Peshawar which vide Laboratory No,12392-98 dated 5-7- 2000 reported to be charas. Subsequently, during trial of the accused, the prosecution produced Gul Biaz Khan, constable who had incorporated murasila into F.I.R. Exh.PA, Ihsanullah Khan S.H.O.
Police Station, City Kohat who had arrested the accused-appellant and took into possession the contraband charas and had lodged the report against him, separated samples from it, prepared recovery memo. Recorded statements of P.Ws under section 161, Cr.P.C. And had sent parcels to F.S.L. For chemical examination and lastly submitted complete challan against the accused to the trial Court.
3. A.S.-I. Rajab Ali is the marginal witness to the recovery memo. Exh.PC vide which the S.H.O. Has taken into possession the contraband charas, cylinder and prepared parcels.
4. After closing the prosecution evidence against the accused, he was examined under section 342, Cr.P.C. Who denied the recovery of contraband charas from him and did not like to produce any defence evidence nor desire to be examined as his own witness on oath. Then after hearing both the parties to the case, the impugned judgment followed.
5. We have heard the parties and have gone through the record of the case at length.
6. It has been argued by the learned counsel for the appellant that there are contradictions both in the relevant documents as well as in the statements of the P. Ws. Recorded in this case with regard to the recovery of contraband charas as well as to its quantum. It was explained that while in the report, it is mentioned that five packets of yellow colour containing charas were recovered from the cylinder among which two were stated to be blue colour and two wrapped with adhesive tape and all these weighed 4400 grams. From each these packets, four grams charas was separated as samples for chemical test. Against it, there is recovery memo. Which shows only five packets of yellow colour with no mention of any other packet either with blue colour or anyone to be wrapped with adhesive tape. Then there comes statement of the Investigating Officer, Ihsanaullha Khan, S. H.O. (P.W.2) who has stated about five envelopes containing charas of yellow colour two envelopes in blue colour while two wrapped with adhesive tape. He is in different about the colour of envelopes and of the number of envelopes. If according to the F.I.R., the envelopes of different colours are counted, these would become 9 instead of 5. However, in this regard, Rajab Ali (P.W.3) who is marginal witness to the recovery memo. Is clear to state that the envelopes/bags in which the charas was packed, were of different colours. Anyhow, in the recovery memo. It is clearly written that five packets of yellow colour containing charas were recovered from the possession of the accused but there it is specifically mentioned that only four grams charas was taken as sample from the quantity of 4400 grams. It is nowhere mentioned in the recovery memo that four grams from each of the five packets were separated as sample. When we come to the F.S.L. Report Exh.PZ, the number of parcels examined are mentioned 1 to 7 meaning thereby that 7 parcels were drawn from the lot but this figure of 7 parcels nowhere appears in the record. This is apart from the fact that while the occurrence took place on 11-6-2000, the parcels were made available to the laboratory as late as on 5-7-2000 with no explanation for the delay.
7. It was also pressed at the bar by the learned counsel for the appellant that the prosecution witnesses are at variance in the matter of search and recovery of the contraband charas from the accused-appellant inasmuch as while according to the statement of the, Investigating Officer (P.W.2) Ihsanullah Khan, S.H.O., he has admitted in his cross-examination that the accused was deboarded from the vehicle by an F.C. And himself had not seen the accused inside the vehicle with the cylinder. Against this statement, P.W.3, Rajab Ali, marginal witness to the recovery memo.
Has stated that the S.H.O. Himself had entered into the vehicle and had deboarded the accused with cylinder and then had broken the cylinder with axe/hammer. He has also stated that other passengers were also present in the vehicle but the police had prior information in respect of the present accused. The other persons were not ready to depose against the accused since they belonged to far-flung areas. He has denied the suggestion that one Hakeem Khan constable had deboarded denied the suggestion that one Hakeem Khan constable had deboarded the accused along with cylinder or that there was a quarrel between the accused and Hakeem Khan for the reasons that the accused was implicated in the case.
8. The perusal of the record would reveal that the time of occurrence as well as of the report is the same i,e,, 1200 hours. Till the report not only the cylinder was to be broken but the charas was also to be weighed, samples were to be drawn and to be sealed in parcels and murasila was to be drafted and all these steps had to take sufficient time but it is not known and explained as to how all these actions were completed within no minutes. Admittedly, there were other passengers and the driver in the same vehicle but none among them could be made witness to the recovery in question. The Investigating Officer (P.W.2) Ihsanullah Khan, S.H.O. Has admitted that the accused- appellant was deboarded by constable from the vehicle and that he had not seen himself the accused inside the vehicle and so must have not seen the cylinder lying with the accused. Still no such constable was produced as prosecution witness to have had stated about the recovery of the cylinder containing the charas from the direct and physical possession of the accused-appellant.
While exhibiting FSL report Exh.PZ, it has not been explained by (P.W.2) Ihsanullah Khan, S.H.O. As to why either the contraband charas was made available late to the laboratory or 7 parcels were sent for examination instead of 5 recovered from the cylinder.
9. In nutshell, the poor quality of investigation made in this case by the Investigating Officer, both in the drafting of the murasila containing an ambiguous number of packets and colours thereof, preparation of recovery memo. Showing only four grams charas separated as sample from the whole lot sending 7 parcels to FSL for examination against 5 parcels of charas drawn as samples, by not citing the constable as witness who had deboarded the accused-appellant from the vehicle as he could be the first to depose evidence of direct possession of the cylinder by the accused, has benefited the accused with doubt in the recovery of the contraband charas from him while sitting among other passengers in the vehicle. Thus this benefit of doubt must be extended to him.
Accordingly, we accept the instant appeal, set aside the impugned judgment providing for conviction and sentence of the accused-appellant and sets him free of the charges, he is charged with. Case property is to remain confiscated as ordered by the trial Court. These are the reasons for our short order made today of the acquittal of the accused-appellant. Let a copy of this order be sent to the Inspector-General of Police, N.-W.F.P., Peshawar for his information.