' SYED YAHYA ZAHID GILLANI, J.---Vide a single judgment dated 31-10-2008 in case F.I.R. No, 28 dated 16-6-2006 of Police Station ANF, Peshawar, under section 9 CNSA, learned Judge Special Court (CNS), Peshawar, has convicted Said Muhammad and Shakeel Ahmad, under section 9(c) CNSA and sentenced each of them to undergo three years' R.I. And pay a fine of Rs,1,00,000 or in default to suffer one years S.I., with the benefit of section 382-B, Cr.P.C.
2. Both Said Muhammad and Shakeel Ahmad have separately preferred Criminal Appeal No,65 of 2008 titled "Said Muhammad v. The State and Criminal Appeal No,67 of 2008 titled "Shakeel Ahmed v. The State" We propose to decide both these appeals with this single judgment because the appeals pertains to a single case.
3. According to prosecution, it was 20-30 hours, on 16-6-2006, when the complainant Samin Jan Inspector, on secret information, checked motor car No,D1212-Peshawar, where from the person sitting on the front seat decamped in the darkness of night, but the driver Zakir as well as the person sitting on the rear seat, namely Shakeel Ahmad, were arrested because 230 Heroin filled Capsules, containing 1620 grams heroin were recovered from under the rear seat, out of which 10 grams sample was sent to FSL and the report conveyed that the sample was of heroin.
4. Accused Zakir disclosed during the initial investigation that the person who decamped from the car was Said Muhammad, resident of Charsadda. He was arrested after one month and five days of the occurrence. The trial Court held all the three accused guilty and convicted them under section 9 CNSA. Zakir accused (driver) was sentenced to imprisonment, already undergone. He has not preferred appeal. The other two co-accused Said Muhammad and Shakeel Ahmed are now convicts/appellants for having been sentenced as mentioned above.
5. We have heard Mr. Noor Alam Khan, Advocate, for convict/appellant Said Muhammad and Miss Farhana Marwat, Advocate, for convict/appellant Shakeel Ahmed. Mr. Slaahuddin Khan D.A.-G., has been heard for State. Record have been perused.
6. At the out set, it is pertinent to mention that Said Muhammad convict/ appellant was not arrested on the spot. According to prosecution case he was nominated by his co-accused Zakir.
This nomination could be a base for investigation against Said Muhammad, but for conviction, admissible evidence was required against him. We see that in the record of trial Court neither there is judicial or extra-judicial confession made by him, nor anything incriminating was recovered at his pointation. There is no witness against him providing direct evidence to show his involvement in this case. Learned trial Court has referred in the impugned judgment that P.W.2 Samin Jan Inspector/ complainant has stated in his statement that he was informed by Zakir accused when he was arrested on the spot that the person who fled away from the car was Said Muhammad. This evidence is not admissible because it is hearsay evidence and that too from the mouth of a co- accused, who has neither offered a judicial confession nor he is an approver. There is nothing on record that the complainant/Inspector P.W.2 or any of the members of his team recognized the person by face, who had fled away from the car. So involvement of Said Muhammad convict/appellant in this case is shrouded in thick clouds of doubts and there is no tangible admissible evidence against him to connect him with the crime. He is thus entitled to benefit of doubt.
7. As far as the case of Shakeel Ahmed convict/appellant is concerned, he was arrested from the rear seat of the car under which the heroin filled capsules were kept. We have gone through the evidence to ponder over the plea of Shakeel Ahmed convict/appellant that he has been made a scapegoat, but no good ground could be found to accept this plea, because he could not show or express any malice in between him and the ANF police party, that arrested him. Their statements are not suffering from material contradictions or inherent deficiencies. The case of Shakeel Ahmad is found identical to the facts of the case "Azizur Rehman v. The State" reported in 2006 SCM R 1826 and on the basis of recorded evidence we believe that the prosecution has been succeeded to prove the guilt of Shakeel Ahmed convict/ appellant. However, we do see disparity in his sentence and the sentence of his co-accused Zakir, which needs rectification. Hence, it would be in the interest of justice, to reduce the sentence of Shakeel Ahmad.
8. In the light of above discussion, we extend benefit of doubt to Said Muhammad convict/appellant and acquit him from the C charge by accepting his appeal. He be set at liberty forthwith, if not required in any other case.
9. On partial acceptance of appeal of Shakeel Ahmad, maintaining his conviction, we reduce his sentence to two years R.I. And fine to Rs,20,000 which is deemed to be appropriate to meet the ends of justice. In case of default in payment of fine, he shall further suffer two months' S.I.