' MIAN FASIH-UL-MULK, J.--- This is an appeal by the convict Muhammad Shafique from the judgment recorded by Sessions Judge/Judge Special Court, Mansehra, dated 3-6-2009, whereby the appellant was convicted and sentenced to undergo 12 years' R.I. And also to pay a fine of Rs,1,00,000 or in default of payment of fine to suffer additional S.I. For one year. However, benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. Briefly stated the facts of the prosecution case are that on 21-12-2008 Muhammad Iqbal S.-I.
Along with other police personnel had held a picket near Sheikhabad camp at Gujjar Galli at 12-20 p.m. A Wagon No,6466/RPT appeared on the scene coming from Darband side which was stopped.
One person was found in suspected condition, who had a black shopping bag in his lap. The shopping bag was checked and eight packets having parcel shape opium were found. On weighing, it stood 8 kilograms. Sample of five grams from each packet was separated for chemical analysis while rest of opium weighing 7960 grams were sealed in another parcel. The arrested person on query disclosed his name Muhammad Shafique son of Haider Zaman. Therefore, case vide F.I.R. No,1685 dated 21-12-2008 under section 9(c), C.N.S.A. Was registered against him in Police Station City Mansehra. After completion of investigation challan was submitted before Special Court and trial commenced.
3. At the trial, after observing codel formalities formal charge was framed against the appellant, who professed innocence and false implication and claimed trial. The prosecution in support of its case examined four witnesses in all.
4. On close of prosecution evidence, appellant was examined under section 342, Cr.P.C. Where in he stated that he has been implicated in the instant case at the instance of two police constables and added that five passengers had given affidavit at bail stage in the Court of Mr. Ahmed Sultan Tareen learned Additional Sessions Judge, Mansehra about his innocence. He did not appear as his own witness on oath as required under section 340(2), Cr.P.C. In disproof of allegations levelled against him nor produced evidence in defence.
5. Learned counsel for the appellant contended that the appellant has falsely been involved in the case; that the P. Ws. Have contradicted on material aspects of the case and their evidence is not confidence inspiring; that the impugned judgment is based on misreading and non-reading of evidence and is liable to be set aside.
6. On the other hand the learned State Counsel opposed the contentions raised by the appellant and supported the impugned judgment and order of conviction.
7. We have heard the learned counsel for the appellant and State Counsel at length and have perused the record.
8. A perusal of record would show, and rightly admitted by the trial Court in the impugned judgment, that although huge quantity of narcotics has allegedly been recovered from the possession of the petitioner but P.Ws.1 and 2 S.-I. Muhammad Iqbal and Constable Muhammad Aslam, besides so many other contradictions, have contradicted each other on material points with regard to the time of their arrival at the spot, the time after lapse of which the vehicle arrived, as to who signaled the same, the number of passengers who were present in the wagon, who, out of police personnel boarded the wagon and searched the appellant, weight of contraband along with bag and without bag. P.W.1 has categorically stated in his cross-examination that they had reached the spot at 9-00 a.m. While P.W.2 has stated that it was 10-00 a.m. P.W.1 stated that after ten minutes the alleged wagon came while according to P.W.2 and the report the wagon had come at 12-00 p.m. We have gone through the statements of both the witnesses and for many factors appealing to prudent mind muchless judicial mind we have strong reasons to disbelieve and discard the same. We, therefore, hold that both these statements if cannot be entirely thrown out, surely cannot also be relied upon for the purpose of recording conviction. It appears that both the. P.Ws. Were either not present at the scene of occurrence or were purposely giving false statements concealing material before or after the occurrence having direct bearing on the fate of the case.
9. Another important aspect of the case is that sample of alleged contraband were sent for analysis and report on 21-12-2008 and the same were received in Laboratory on 31-1-2009 with a delay of 41/42 days. Neither the prosecution could offer any plausible explanation nor the learned State Counsel when confronted, could justify such delay or its lawful custody on any hypothesis.
The learned trial Court though has discussed the shaky prosecution evidence and was conscious of its quality but was probably influenced by the huge quantity allegedly involved in the case and thus extended every possible benefit to the prosecution rather than to the defence. In such-like cases, for the safe administration of justice, it is not the quantity of contraband but the quality of evidence produced in the Court to be considered for reaching a correct conclusion and just decision-of the case.
10. The facts, circumstances and evidence available on record suggest that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt and while extending him the benefit of doubt, he deserves acquittal.
11. Consequently, on acceptance of the appeal, the conviction and sentence of the appellant is set aside and he is acquitted of the charge. He shall be released forthwith, if not required in any other case.