Muhammad Alam Khan, J.--By way of this single judgment we propose to dispose of the instant Criminal Appeal No, 277/2007 (Momin Khan Vs. The State) and the connected Criminal Appeal No, 284/2007 (Nizar Ali Vs. The State) as both of them arise out of a common judgment of Mr. Anwar Hussain, Judge Special Court (CNS), Peshawar dated 10.4.2007 and involve common questions of law and facts.
2. According to the prosecution story on receipt of spy information that huge quantity contrabands would be smuggled through Vehicle Bearing No, JD-19/Islamabad, on 27.11.2005 Sardar Abdul Waheed Inspector ANF alongwith other ANF contingents made a "Naqabandi" at G.T. Road near Tarnab Farm. At about 9.30 hours the said vehicle came from Peshawar side which was signalled to stop but its driver instead of stopping it accelerated its speed which was chased through official Pickup and was forced to stop. The driver of the vehicle pulled out a Pistol but he was overpowered while the person occupying the front seat succeeded in jumping out from the car and ran away towards the village abadi. The driver of the Car in question disclosed his name as Momin Khan son of Asad Khan resident of Mohallah Shamozai Sarband Peshawar. On search of the vehicle six packets of charas Garda was recovered from secret cavities from the front doors duly wrapped in yellow colour solution tape. On weighing each packet contained 2400 kilograms totalling 14,400 kilograms out of which he separated 10 grams from each packet for FSL and sealed them into parcel while the remaining bulk was sealed into separ: e parcel. He took into possession Pistol Bearing No, C-112979 alongwith its license. On cursory interrogation of the accused Momin, he disclosed the name of run away accused as Sajjad resident of Dir presently residing at Bara Gate Peshawar. He also disclosed the name of his other companion as Nizar Ali son of Abdul Ghaffar resident of Qamar gai Rasshakai Kalu Khan District Swabi being owner of the contraband Charas.
The said Inspector drafted murasila Ex.P.W.3/2 and sent the same to the police station where on the basis of it FIR No, 40 Ex.PW 2/1 was registered on 27.11.2005 under Section 9 Control of Narcotic Substances Act, 1997 in which the contents of murasil- were duly incorporated. Convict-appellant Momin was arrested on the spot while convict-appellant Nizar Ali was arrested on 28.2.2006.
3. After completion of requisite formalities, the accused were forwarded to the trial Court where they were formally charged on 12.6.2006 to which they pleaded not guilty and claimed trial.
4. In order to prove its case the prosecution examined Samin Jan Inspector (PW1), Fida Ullah Moharrir (PW2), Sardar Abdul Waheed Inspector (PW3) and Matiur Rehman HC (PW-4) and abandoned the remaining P.Ws being unnecessary. Thereafter the convict-appellants were examined under Section 342 Cr.P.C. Neither they opt to appear as their own witness in disproof of the allegation levelled against them as required under Section 340(2) Cr.P.C. nor did they adduce defence evidence. The learned trial Court after evaluating the materials brought on record and hearing the parties found both the convict-appellants guilty, convicted and sentenced them through his single judgment dated 10.4.2007 as follows:-- "Accused Momin Khan on conviction u/S. 9(c) CNSA was sentenced to Life Imprisonment alongwith a fine of Rs, Four Lacs or in default thereof he shall have to suffer further Four Years S.I. while accused Nizar Ali was convicted u/S. 15 CNSA and on conviction was sentenced to undergo Four Years R.I. alongwith a fine of Rs, One Lac or in default thereof he shall have to suffer further One Year R.I. Both the accused were held entitled to the benefit of Section 382-B Cr.P.C."
5. The impugned judgment has been assailed by the convict-appellants through separate appeals, one by Momin Khan (Criminal Appeal No, 277/2007) and the other by Nizar Ali (Criminal Appeal No, 284 of 2007).
6.It was submitted by the learned counsels for the convict/appellants that the case property allegedly recovered from accused was charas-garda which after baking and chemical process is always subject to substantial reduction. Elaborating the arguments the learned counsels submitted that the garda charas is not charas in its entirety. It was also argued that the garda charas is always in the shape of granules and the recovered stuff being slabs is not the one allegedly recovered from the vehicle. It was also submitted that the site-plan was not prepared and the person who allegedly ran away was Sajad, but neither he was arrayed as an accused person nor any action was taken against him by the prosecution.
7. It was also argued that Kamran Ali the FC through whom allegedly the case property was sent to laboratory has not been produced. Further elaborating their arguments the learned counsels submitted that there are material contradictions in the statements of PWs 3 & 4, regarding the identity of the case property when the same was produced before the Court. It was lastly contended that the vehicle from which allegedly the charas-garda was recovered was not produced before the Court and thus, the prosecution has failed to establish the case against the convict/appellants beyond reasonable doubt and they are entitled to acquittal. Reliance was placed on the dicta laid down in the cases of Amanat Ali vs. The State 2008 SCMR 69, Iqbal Khan vs. The State PLD 2008 SC 107 and Muhammad Munir vs. State 2008 YLR 693.
8. On the other hand Mr. Salahuddin Khan Deputy Attorney General appearing for the State submitted that the convict/appellants have been directly charged and the garda charas has been recovered from direct possession of the appellants. Direct and convincing evidence was produced by the prosecution. The witnesses were subjected to lengthy cross-examination but nothing has been squeezed out from their mouths to shatter the prosecution case. It was also submitted that the accused Nizar Ali was previously involved in so many cases and in this respect FIRs EX.PW 3/6 to EX.PW 3/12 were placed on record without objection by the accused and without cross- examination of PW-3 on this aspect of the case, thus, it was submitted, that the appellants have been rightly convicted by the learned trial Court, reliance was placed on the case of Jamil Shah vs. The State 1997 SCMR page-1494 and the dictum laid down in the case of Tasawer Hussain vs. The State 2001 P.Cr.LJ page 879.
9. We have gone through the record of the case with the assistance of the learned counsels for the parties and have anxiously considered their arguments.
10. The case of Nizar Ali accused/appellant is that of no evidence as he was neither present with the co-accused at the time of recovery of alleged narcotic nor any contraband has been recovered either from his direct possession or on his pointation. The statement of the co-accused Momin Khan is not at all admissible in evidence qua the guilt of Nizar Ali accused/appellant. So far as the registration of the cases against the accused Nizar Ali vide different FIRs EX.PW 3/6 to EX.PW 3/12 are concerned, nothing has been brought on record that in these cases the accused had already been convicted, in order, to prove his previous involvement in such like offence. The prosecution has to prove through cogent and convincing evidence by producing certificate of conviction as held in the case of Iqbal Khan vs. The State PLD 2008 SC 107. Further more, there is no evidence on the record that appellant Nizar Ali either facilitated, induced or helped in any manner or was instrumental in the commission of the offence by co-accused Momin Khan, so, his conviction u/S. 15 of the Control of Narcotic Substances Act, can not be maintained.
11. Now coming to the case of Momin Khan appellant. The alleged recovery was effected from the accused in a busy road which is always being plied by heavy traffic and the I.O. opted to make the two police officials witnesses to the recovery namely Ashfaq Hussain HC, later on abandoned by the prosecution, and Mati-ur-Rehman FC of Police Station ANF Peshawar to the recovery memo EX.PW 3/1.
12. According to recovery memo EX.PW 3/1 six packets charasgarda was recovered and each packet contained charas-garda, which is always in the shape of granules and not slab. When charas-garda is baked and chemically processed, it is then charas-pukhta and is in the form of slabs. When the packets were opened before the trial Court each contained two slabs of charas and on this PW-4 Mati-ur-Rehman HC was subjected to very lengthy cross-examination and in the opening of his cross-examination, he admits as under: "6 packets were taken into possession by the I.O. in my presence. Each packet was opened by the I.O. in my presence and I personally examined each packet. There is no sub slab in each packet and each packet consist of only one packet as it has charas garda. If any property produced before this Court consist of more than one slab the same would not be the case property of the present case."
13. The above admission of PW-4 throws serious doubt on the credentials of prosecution, making the recovery doubtful as held in the case of Sher Khan vs. The State reported in 2003 MLD page 259.
The non-association of accused Sajjad, who allegedly decamped from the spot and non arraying him as an accused by the prosecution is another glaring fact, which create doubts in the mind of a prudent man, that the real culprit has been exonerated by the prosecution.
14. Admittedly the car from which the alleged contraband charas was recovered has not been produced by the prosecution inspite of the objection by defence counsels which was the case property subject to examination of the alleged secret cavities of the car. This fact also finds support from the judgment of the learned trial Court, that the same has been returned to one Muhammad Asim and the car was not before the Court, which is a link missing in the prosecution case upon which an edifice of the allegations against the appellants had been erected, and the same completely shatter the prosecution case as held in the dicta laid down in the cases of Gul Khan vs. The State, 2005 P.Cr.LJ 1198, Arshad Ali and two others vs. The State, 1995 P.Cr.LJ 142.
15. In view of the facts and circumstances of the case narrated above, we accept both the appeals i.e Appeal No, 277 of 2007, Momin Khan vs. The State & Criminal Appeal No, 284 of 2007, Nizar Ali vs. The State, the impugned conviction and sentences awarded to the appellants by the learned trial Court CNS dated 10.4.2007 are set aside and both the appellants are acquitted of the charge levelled against them. They be set at liberty forthwith if not required in some other case.
16. Above are the reasons for our short orders dated 21.8.2008.