JUDGMENT SHER MUHAMMAD KHAN, J.---Appellant Bakhti Jan has challenged his conviction and sentence awarded to him vide Judgment/Order dated 28-10-2006 by learned Judge Special Court (C.N.S.) Peshawar Camp Court at Dera Ismail Khan.
2. The story developed by prosecution is that there was spy information to Raja Tariq Mahmud Kiani Indiarge Police Station, ANF D.I. Khan, that one person namely Bakhti Jan is standing at bus stop CRBC Colony Airport Road D.I. Khan, who has in his possession a sac, containing huge quantity of narcotics concealed in it. It was directed that if prompt and immediate action is taken, the culprit can be overpowered along with the narcotics. Considering the information as authentic, raiding party of ANF consisting of Shafique Ahmad A.S.-I., Said Jehan Shah H.C, Constables Nauroz Khan, Shah Faisal, Muhammad Imran, Liaqat Ali, Muhammad Ayaz, Faqir Muhammad and Asmatullah was constituted under the command of Raja Tariq Mahmud Assistant Director ANF, who along with the informer went to the spot in official Vehicle No.4294, driven by Sabir Hussain driver. On reaching the spot the informer pinpointed the suspected person to the police party, who noticing arrival of the police, threw the plastic sac on the ground containing the narcotics and tried to flee, who was overpowered, on inquiry disclosed his name Bakhti Jan son of Babrak Khan no Tora Ghunadi Tehsil and District Hangu. On opening the plastic sac 11 packets of raw and 2 packets of baked charas were recovered. Each packet containing raw and baked charas was of one kg each forming 11 kgs of raw and 2 kgs of baked charas. The Inspector then separated 10 grams from each packet and prepared 13 parcels of the samples having Serial Nos.1 to 13, which was sealed and two stamps of K.H. Were affixed on it. Remaining raw charas were sealed into parcel No.14 and baked charas in parcel No.15, upon each of the sample four stamps of K.H. Were affixed. On personal search one I.D.
Card of the accused and Rs.510 were recovered. All the contraband was taken into possession through recovery memo and the accused was formally arrested in the case.
3. After registration of the case investigation was conducted and complete challan was submitted against the accused in the trial Court. He was formally charged to which he pleaded not guilty and claimed trial.
4. Prosecution, in order to prove its case against the appellant produced and examined four witnesses. After close of prosecution evidence, statement of appellant under section 342, Cr.P.C.
Was recorded, however he did not wish to be examined on Oath under section 340(2), Cr.P.C. And also declined to produce evidence in his defence.
5. After hearing counsel for the parties, the learned Judge Special Court, (C.N.S.) Peshawar Camp Court, Dera Ismail Khan vide Judgment/Order dated 28-10-2006, convicted the appellant and sentenced him for life imprisonment coupled with fine of Rs. Two lacs or in default thereof he was ordered to suffer further two years' R.I. Under section 9(C) C . N. S. A .
6. Now the appellant has challenged the above mentioned Judgment/Order through the instant criminal appeal.
7. Arguments of the learned counsel for the parties already heard. Record was also perused with their valuable assistance.
8. The contents of murasila and statements of P.W.3 and P.W.4 are not in line with each other. In the murasila it has been alleged that while seeing the police party the accused tried to flee and threw the sac containing narcotics on the ground. But P.W.3 Rana Khadim Hussain who is investigation officer and complainant in this case, in his examination in chief tried to improve his stance and stated that the accused was apprehended at the information of the informer when he was having in his possession a plastic bag which was searched and out of the same 11 packets of charas garda and two packets of pukhta were recovered. PW-4 the marginal witness of recovery maim Exh.P.W.3./ I also did not support the contents of the mruasila.
9. The accused is the resident of the area and owns agricultural land near the alleged place of occurrence which has not been only admitted by P.W.4 but also proved from the mutation, Exh.D-1 produced by accused in his defence. He is also owner of residential house as well as of Raja Market consisting of 35 shops in the close proximity of the spot.
10. The star witness of the prosecution who received alleged spy information and also supervised the raiding proceedings, failed to appear before the Court for recording his evidence against the appellant.
11. In similar case when police party on prior information went to the spot, found cartons and packets lying on foot path and a man standing nearby started running who was allegedly chased, caught and-then made accused in the case. One of the prosecution witnesses admitted that except for the fact that accused ran away from the spot he could not make any connection of the cartons with accused during his entire investigation.
12. In the present case also except spy information, which was conveyed to Raja Tariq Mahmud Assistant Director ANF D.I. Khan, no other evidence has been brought on the record to connect or link the accused/appellant with the alleged recovered narcotics. Reliance is placed on the case of Imtiaz v. The State reported in PLD 2009 Pesh. 19.
13. In another identical case when the police party was on petrol duty in the official vehicle and they noticed a blue colour bag lying on the ground near the chowk of Azeem Killy and in order to check the same the vehicle was stopped and the police party deboard therefrom and saw a person running who was followed and overpowered and then connected with 18 packets of charas recovered from that bag. This Court acquitted the accused in that case reported in 2009 PCr.11 523 titled Shah Khan v. The State.
14. P.W.2 Asmatullah F.C. ANF D.I. Khan also poses himself to be eye-witness of the occurrence as he was accompanying Rana Khadim Hussain complainant in the case from the time of departure from police station till drafting the murasila which was given to him for taking it to police station for registration of the case. In spite of being present at the spot he did not see any proceedings of recovery or arrest of the appellant with alleged narcotics. He stated that he has brought the murasila only to police station and nothing else at that time. It is very strange on the part of this P.W. That being present with the complainant from the beginning till drafting of the murasila but did not notice any proceedings conducted by the complainant, which suggest that the investigation has not been conducted in the manner as shown by the complainant.
15. Besides the above dents in the prosecution case, the recovery of contraband is also doubtful for the reason that the recovery was not made in the presence of public witnesses. Though the applicability of section 103, Cr.P.C. Has been excluded through section 25 of C.N.S.A., yet the association of public witnesses is necessary when the proceedings are conducted on prior information. Reliance is placed on PLD 2001 Peshawar 152.
16. In such-like cases a single infirmity, which creates reasonable doubt in prudent mind is sufficient for acquittal of the accused.
17. Therefore, what has been stated above is sufficient to disbelieve the story of prosecution, which is full of doubts and is lacking the quality for maintaining conviction of the appellant.
18. Hence, by extending benefit of doubt to the accused/appellant we hereby accept his appeal, set aside the Judgment/ Order dated 28-10-2006 passed by learned Judge Special Court (C.N.S.)
Peshawar camp at D.I. Khan. Accused/appellant be released forthwith if not required in any other case.