Zia-ud-Din Khattak, J.--Ghulam Nabi, respondent herein alongwith co-accused Safdar Ali was tried by learned Additional Sessions Judge-II/Judge Special Court, Nowshera who vide judgment dated 9.12.2006 while convicting co-accused under Section 9(C) of the Control of Narcotic Substances Act, 1997 (CNSA) acquitted the respondent on benefit of doubt.
2. Dis-satisfied with the said judgment, the Government of NWFP through the Advocate General has filed this appeal under Section 48 of the CNSA 1997 read with Seetion 417 Cr.P.C. against the order of acquittal of the respondent on the ground that the evidence brought on record has proved the case against the respondent beyond any shadow of doubt, that the PWs had no ill-will against the respondent to implicate him falsely in the case and that the evidence has not been properly appreciated by the learned trial Court resulting into miscarriage of justice.
3. Facts relevant for the disposal of this appeal are that on a spy information received by Farman Said Khan, Excise and Taxation Officer, Nowshera that on 29.1.2006, huge quantity of narcotics will be smuggled to Punjab through a Motor car via Lal Kurti bye pass road Nowshera, a raiding party comprising Ijlal Babar, Muhammad Arshad Khan, Excise Inspectors and others constituted which laid "Nakabandi' near Lal Kurti Phatak. At about 9.10 hours, a motor car displaying official Number plate MNS-8765 arrived at point of Nakabandi. The driver of the car was given a signal to stop but he accelerated the speed. The car was chased and intercepted at some distance, three persons were sitting in the car.
Of them, one person was apprehended on the spot who on inquiry disclosed his name as Safdar Ali (co-accused). The remaining two persons, however, succeeded to make good their escape. They were chased and one of them was apprehended who introduced himself as Ghulam Nabi, respondent herein. A. 30 bore pistol alongwith seven cartridges of the same bore were recovered from his possession. The car was searched which led to the recovery of 238 packets of charas and one packet of opium from boot of the car. The charas was weighed and found 272 Kgs. The opium was also weighed and found 1 Kg. A small quantity i,e, five grams each was'separated out of the seized narcotics and sent to the Chemical Examiner, Peshawar fur analysis. The remaining stuff was sealed into parcels. Various number plates bearing different registration numbers and registration book of the car were recovered and secured into custody. The two accused were formally arrested and the case was registered against them at Police Station, Nowshera Cantt: vide FIR No, 99 dated 29.1.2006 under Section 9 CNSA 1997 read with Section 13 Arms Ordinance, 1965 and Sections 419/420/468/471 PPC.
4. After investigation, the respondent and co-accused were challaned to the Court of learned Additional Sessions Judge-II/Judge Special Court, Nowshera who charge-sheeted them under Section 9 CNSA 1997 read with Sections 419/420/468/471 PPC. In order to bring home charge to the accused, the prosecution produced the following six witnesses:--
(i) Muhammad Iqbal, Excise Inspector, Nowshera(PW-I),
(ii) Muhammad Arshad Khan, Excise Inspector Nowshera,(PW-2)
(iii) Sher Hassan, FC No, 1036), (PW-3),
(iv) Nisar Khan, SHO, PS Nowshera Cantt:(PW-4),
(v) Wali Ayaz Khan, Sub- Inspector, PS Nowshera Cantt:(PW-5),
(vi) Javed son of Sardar, resident of Bhana Mari, Peshawar(PW-6).
5. After closing the prosecution evidence, the respondent and co-accused were examined under Section 342 Cr.P.C. who denied the charge and pleaded innocence. Co-accused Safdar Ali, who was arrested on the spot with the vehicle and narcotics, made a detailed statement and inter alia, stated that respondent was a taxi driver who was arrested from taxi stand/Adda, and had no connection either with the vehicle or the seized narcotics. Respondent produced Amir Khan (DW-1) and Ali Bahadur (DW-2) in his defence who supported the statement of co-accused.
6. We have heard Mr. Alamzeb Khan, DAG appearing for the State and perused the record.
7. It is well-settled that an accused/respondent in an appeal against acquittal has double presumption of innocence in his favour; one that every accused shall be presumed to be innocent unless proved to be guilty and the other that a competent Court of law has adjudged, him not guilty. As a rule once the innocence of an accused is established at the trial in a Court of law of competent jurisdiction and acquitted of the charge then very strong and exceptional grounds would be required for interference with the same. The learned trial Judge while acquitting the respondent has held the following: The prosecution has not been able to prove the charge against accused Ghulam Nabi beyond any shadow of doubt as it has been transpired from the record that neither he was piloting the vehicle from which the contraband has been recovered nor he was present in the vehicle in question from which the recovery has been effected and the DWs produced by him also support his contention that he has not been arrested from the spot rather has been brought from taxi stand/bus adds."
8. It is observed that the respondent was not arrested on the spot who was stated to have fled away and subsequently arrested in the case from taxi stand/adds. A .30 bore pistol was recovered from him and probably for that a separate challan may had been submitted to a competent Court inasmuch as the present case does not include the charge under Section 13 AO against him to have been tried by the learned trial Court. No test identification parade has been held in the instant case so as to positively incriminate the respondent. No narcotics substance has been recovered from actual physical possession of the respondent. The co-accused in his Court statement has exonerated the respondent from the charge by stating that he was not accompanied by him. He is neither owner of the narcotics nor its supplier and as such there exists doubt about his involvement in the case, although no inimical terms have been attributed to the prosecution.
9. For what has been discussed above, we find that conclusion drawn and reasons given by the learned trial Court show fair evaluation of evidence and the same does not suggest any legal or factual infirmity, therefore, this appeal is dismissed in limine.