' HAMID FAROOQ DURRANI, J.--- The appellant Bashir Khan son of Sahib Khan stands convicted and sentenced to imprisonment for life in addition to payment of Rs,1,00,000 as fine, by learned Additional Sessions Judge-IV, Nowshera under sections 6/7/8/9, C.N.S.A. Through judgment pronounced on 20-3-2006. In default of payment of fine, the appellant was to further undergo simple imprisonment of one years.
' The starter to the case against the appellant was Murasila resulting in F.I.R. No,8 dated 4-5-2005 recorded at Police Station Customs Investigation and Prosecution Branch, Customs House, Peshawar wherein it was, inter alia, mentioned that on the relevant day the appellant was playing in a Toyota Hiace Van which was forced to stop near Ajab Bagh in pursuance to a prior tip-off by the concerned customs officials. Upon search, Charas of foreign origin weighing 48 Kgs. (gross) was recovered from secret cavities specially manufactured in the vehicle. The said narcotic comprised of 39 packets. The appellant was arrested on the spot who disclosed his name and parentage while three samples of 5 grams each were separated from the recovered Charas and were sealed for chemical analysis etc. The entire narcotic along with vehicle was also seized.
2. Upon commencement of the trial, formal charge was framed against the appellant on 4-8-2005 which was followed by the statements of four prosecution witnesses where after the evidence was closed on 17-12-2005. The statement of accused/appellant was recorded under section 342, Cr.P.C.
On 17-1-2006 and resultantly the impugned judgment of conviction of appellant followed.
Aggrieved therefrom, the appeal in hand was preferred on 25-3-2006.
3. We have heard learned counsel for the appellant and learned Deputy Attorney-General on behalf of the State. The record of trial was also examined with the assistance of learned counsel.
It is noted at the outset that the Murasila, as well as the F.I.R., indicate the case property comprising the recovered Charas, Toyota Hiace Van and Registration Plates bearing No,CK-6677-Karachi while on the other hand the memo. Of personal search of accused depicts the recovery of one pistol .30 bore along with licence, one mobile phone Nokia, driving licence and service card in the name of accused in addition to one currency note of Rs,1,000. The said items were not included in the recovered case property as alleged through Murasila/F.I.R. It is also noticeable that the items mentioned in memo. Of personal search Exh.P.C./2 were never produced before the learned Court during the trial.
4. In cases involving recovery of narcotic, the report of laboratory indicating chemical analysis of samples thereof is considered to be of immense significance as it can provide a strong ground for connection between an accused and the incriminating material. Seeing in the said backdrop, it is gatherable from record of instant case that admittedly three samples were separated from the incriminating narcotic while as per Exh.P.C./3 one sample of 5 grams was dispatched to F.S.L., Peshawar. On the other hand Exh.P.D. Suggests that on 6-5-2005 two sealed parcels wherein 5 grams each were received through No,CE-15251-52 by the said laboratory. Both were tested/analyzed to have positively contained Charas. It is also noteworthy that the said exhibit although contains F.I.R. Number and its date but is silent regarding the name of police station and the relevant district. In the given circumstances, all the doubt in respect of subjecting the solitary sample allegedly separated from the recovered lot and its dispatch to F.S.L. Peshawar would reasonably prevail.
5. It is the case of prosecution that after recovery of contraband narcotic, the entire bulk along with one separated sample of 5 grams was deposited in the State warehouse on 7-5-2005. The deposit of incriminating vehicle, however, is not gatherable from investigation record produced before the trial Court. It would also be useful to refer to the statement of P.W.1 Afzal Muhammad, Inspector Incharge, warehouse who did not speak of deposit of sample along with the case property in the said warehouse. Further while exhibiting the case property as Exh.P.1, it was stated that the same was put in a steel box but keeping the same under seal was not shown. Similarly, the undated certificate Exh.P.W.1/1, in respect of deposit of case property, did not disclose the quantity/weighment of the relevant deposit. The extract from deposit Register Exh.P.W.1/2, though depicts the weight of Charas 48 Kgs. (gross), does not indicate the police station of corresponding F.I.R. Nevertheless, the quantity of separated three samples is not deducted out of the weight of deposited narcotic.
6. We have also noticed that the preparation of recovery memo. Exh.P.C. Is very much dubious as the said document, though pertains to seizure of incriminating narcotic, is not signed by any of the witnesses thereto. In the said context, the statement of P.W.3 Haider Ali, Constable Customs Mobile Squad is worth perusal wherein the witness has categorically admitted that whenever any document was prepared in his presence and his signature was available thereon, it was actually executed in his presence while the document not bearing his signature was not prepared in his presence. The witness further admitted that Exh. P.C. Did not bear his signature.
Similarly, the non-production of mobile phone driving licence and pistol etc. Before the learned trial Court, in spite of its recovery at the spot of occurrence, extends sufficient reason to disbelieve the version of prosecution in reference to the entire alleged recoveries.
7. We are inclined to observe also that the prosecution has nowhere in the entire trial, attempted to prove that the samples allegedly separated on the spot were withdrawn from the whole lot comprising 39 packets. At this stage it would be valid to think how the separation of less than 1/2 gram of narcotic from each packet was manageable.
8. From what has been discussed above, it would be safe to hold that prosecution remained unsuccessful in bringing home the charge against the appellant without reasonable doubt.
Moreso, due to contradictory documentary evidence regarding the analysis of narcotic allegedly being transported by appellant.
' Resultantly, the appeal was allowed and the impugned findings of learned trial. Court were set aside being devoid of merit for its sustenance through our short order recorded on even date and the appellant was acquitted of the charge.