' TARIQ PARVEZ KHAN, J.---Our this judgment is meant to dispose of two criminal appeals, one bearing Criminal Appeal No,9 of 2009 out of Criminal Petition for Leave to Appeal No,445 of 2008 titled: Muhammad Janas v. The State and Criminal Appeal No,48 of 2009 out of Jail Petition No,304 of 2008 titled: Mast Gul v. The State because both these appeals are against single judgment delivered by a learned Division Bench of Lahore High Court, Rawalpindi Bench.
' Criminal Appeal No,9 of 2009 is barred by 11 days but the leave granting order dated 15-1-2009 is silent on the question of limitation.
' In Criminal Appeal No,48 of 2009, leave to appeal has been granted by this Court on 20-2-2009 on the strength of leave granting order passed in Criminal Appeal No,9 of 2009. The former appeal is within time.
2. For the reasons that Criminal Appeal No,9 of 2009 is barred by only 11 days and is appeal against conviction and sentence, also because we are to hear the connected Criminal Appeal No,48 of 2009, which is within time therefore, the delay is condoned.
3. The appellants of two separate appeals are accused in F.I.R. No,71 dated 14-3-2002, Police Station Fateh Jang of District Attock. The complainant of the case is Muhammad Waris, S.H.O. Who has appeared at the trial as P.W.S.
4. In the report recorded at 3-45 p.m. Which was in the shape of Exh.P.A./l. It is stated that when complainant Muhammad Waris Inspector was present in the Police Station, he received information on wireless that a Pick-up bearing Registration No,MA-4563 of white colour displaying to be of Frontier Constabulary had encounter with customs staff and during the exchange of firing between the customs staff and some police officials and after breaking the barrier, accused assailants occupant of the vehicle in question are on their run and that two un-concerned passers-by have been injured. Therefore, the police party was directed to have a road check to arrest the accused.
5. He further stated in the F.I.R. That police party comprising of Waris Khan, inspector and others including Abid Ali Shah, A.S.-I. P.W.4 left the Police Station and when they reached NDC Post, found the vehicle in question parked with two tyres burst. During the search of the vehicle police recovered weighing 650 k.g. Of Charas and weighing 9 k.g. Of opium. It is stated in the F.I.R. That Charas was in the shape of 21 bags and from each bag little quantity of Charas was taken making a total of 10 grams for chemical analysis and similarly 10 grams taken out from the opium.
' In the body of the F.I.R. Four arsons were accused i,e, two appellants, Taj Din and Azam Farooq but it is stated that their names were learnt later on.
' After the above investigation and recording of murasila Waris Khan and other police party started for the search and arrest for the accused.
' At the trial prosecution produced five witnesses but only P.W.4 and P.W.5 are important witnesses being eye-witnesses of the arrest and recovery of narcotics.
6. Musarrat Hussain, A.S.-I. Who has registered case F.I.R. No,25 under section 324/34, P.P.C. And investigated case F.I.R. Nos.24, No,26, and No,27 of dated 14-3-2002 was examined as C.W.1.
' While making statement under section 342, Cr.P.C. The two appellants set up the case of total denial and stated that they had gone to `Kala Chitta' for collecting honey and to see the feasibility for setting the Bee farm.
7. Trial of the two appellants was held in the Court of learned Additional Sessions Judge at Attock, wherein they were awarded death sentence by the trial Judge on 19-4-2002 under section 9-C of the Narcotics Substances Act, 1997. They were also ordered to pay fine of Rs,one million each and in default to undergo three years S.I. Each.
8. Criminal Appeal No,213 of 2002 was filed by the two appellants before Lahore High Court, Rawalpindi Bench which was heard and decided on 22-10-2008 where appeal was partially allowed and conviction was maintained but sentence of death was converted into 14 years imprisonment each. However, fine amount was left un-altered. Benefit of section 382-B, Cr.P.C. Was extended to them.
9. We have heard learned counsel for the appellants, learned Deputy Prosecutor General, Punjab for the State at length and have perused the available record.
10. It is argued before us that two appellants are innocent and they have been falsely charged. It is argued that there is no evidence on record through which appellants can be connected with the vehicle in question much less with the narcotics recovered. It was argued that neither P.W.4 nor P.W.5 have stated that they had seen the accused-appellants either while sitting in the vehicle or getting out of it and fleeing away. In fact, the two witnesses stated that they did not see the two appellants in the vehicle.
11. It is also argued that appellants were not arrested from the vehicle in question nor from nearby and that alleged arrest is made in the territorial jurisdiction of another Police Station which was beyond the territorial jurisdiction where the vehicle in question was allegedly found parked.
12. Learned Deputy Prosecutor General appearing for the State argued that huge quantity of narcotics has been recovered from the vehicle which was used by the appellants and their absconding co-accused and that they while running away had exchanged firing with the customs staff also with police party and have caused injuries to two persons. It was also argued that the apprehension of the two appellants along with Kalashnikovs and spare magazines with live rounds will conclusively prove that the two appellants are members of the party of the criminal who were trafficking narcotic.
13. If one would go by the F.I.R., the initial encounter was between the customs staff and the assailants. It is not known as to who had fired at the vehicle in question whereby two tyres were burst. None from the customs staff is from the group of police party who had initially seen the accused while in the vehicle were running away have appeared at the trial.
14. It is very strange that vehicle loaded with huge quantity of narcotics was found parked by P.W.5 and neither any customs personnel nor policeman was present with the vehicle.
' If the vehicle was made to stop by firing and the Law Enforcing Agencies started chase of the assailants, somebody out of Agencies should have been left on the spot to guard the vehicle.
' Names of the two appellants and their absconding co-accused are mentioned in the F.I.R. But it is not known as to who has given the names to the complainant to this case i,e, P.W.S. 15., It has come in the statements of P.W.4 and P.W.5 that they left the Police Station after they received wireless message. They instead of keeping interaction with customs staff or with the police party of NDC Post, opted to first go to the vehicle, made search, recovered Charas and Opium, prepared the recovery memos and prepared samples and after everything was done only thereafter started to search for the accused is something which cannot be explained as to why the police proceeded in the manner which was not correct nor acceptable.
16. It is in the statement of P.W.4 that they went for the search of the accused and it was about 4-45 p.m. When they reached near `Tanaza Dam' where all the accused were sitting and on seeing the police party, they started firing followed by the firing by the police in self-defence.
17. It is unbelievable that if the appellants were assailants they would remain within the distance of 100 yards of the vehicle which was allegedly stopped at 2-00 p.m., will wait for the arrival of the police until 4-45 p.m. So that the police shall arrive and shall arrest them. In a time span of nearing three hours if present appellants were accused of the case they would have gone miles away from the vehicle in question and nor they would be sitting like duck to be captured by the police party. It is the case of the prosecution that two appellants were arrested along with Kalashnikovs, and live bullets for which separate trial was held and for which two appellants were convicted but they preferred not to file appeal. Kalashnikovs recovered are not said to be giving smell of freshly discharged. Although there is allegation of firing made by the appellants at the police party comprising P.W.4 and P.W.5.
18. Mere apprehension of the two appellants with two Kalashnikovs but in absence of any connecting evidence that they were either seen while sitting in the vehicle or running away nor any documentary evidence to connect the two appellants with the vehicle in question, the appellants would be entitled to benefit of doubt.
19. We therefore, hold that the prosecution could not prove that the appellants were the occupants of the vehicle in question, therefore, the two appeals filed by the appellants are allowed. Conviction and sentence recorded against the appellants by the two Courts below are set aside and they are acquitted of the charges. They shall be released forthwith, if not required in any other cases.