' ATTAULLAH KHAN, J.---By this single judgment, we propose to dispose of two criminal appeals, bearing Nos.501. And 527 of 2011 wherein the appellants Shahab (a juvenile) and Firdous have assailed the judgments and orders dated 18-7-2011 authored by Mr. Muhammad Sabir Khan, Judge Special Court, Takht Bhai, wherein both the appellants have been convicted under section 9(c)
C.N.S.A. And sentenced to undergo simple imprisonment for 20 years each with a fine of Rs,One lac each, or in default to undergo further six months' S.I., extending them the benefit of section 382-B, Cr.P.C.
2. Short facts of the case are that on 10-7-2005, Fazal Subhan Khan A.S.-I./ Incharge Police Post Shago0 Naka, Shergarh, District Mardan, along with Constables Kachkol, Hameedullah, Hanif Gui and others was present on the road side for checking the vehicles when in the meantime a car bearing Registration No, LOF 8539 coming from Mardan side was signalled to stop. The car was allegedly driven by one Shahab, appellant herein, while the front seat was occupied by Firdous. On suspicion, the vehicle was searched which led to the recovery of 16 packets of charas, weighing 16 Kgs in all, allegedly concealed in the secret cavities prepared in the front and rear seats of the car in question. The quantity of charas weighing 16 Kgs. Is reported to have been in the shape of slabs numbering 16, each packet contained one slab of 1000 grams. After separating 5 grams from each slab for chemical analysis, 16 parcels were prepared and duly sealed while rest of the stuff was sealed into separate parcel No:17. After recovery, both the appellants were arrested and booked under section 9(c) C.N.S.A., vide F.I.R. No, 521, dated 13-7-2010, in the Police Station Shergarh, District Mardan.
3. After completion of investigation, since one of the accused/appellants, namely, Shahab, was minor, therefore, he was sent up for trial to the learned Special Judge/Judge Juvenile Court while Firdous, was tried by the learned Judge Special Court. On conclusion of their trial, both the accused/appellants were convicted and sentenced as mentioned in Paragraph No,1 of the instant judgment..
4. Though both the appellants have been convicted and sentenced .Through two different judgments but since both are offshoot of same F.I.R. Coupled with same evidence, both are disposed of jointly through this single judgment.
5. The learned counsel for the appellant Shahab by attacking the impugned conviction on many fronts contended that there are glaring contradictions in the statements of the P.Ws. Recorded in the Court and the prosecution version qua recovery of contraband, manner, mode and the venue of, occurrence. Highlighting the infirmities in, the prosecution case, he went on to argue that the prosecution case is that the contraband was concealed in the secret cavities but this fact is negated by P.W.4, Fazal Subhan Khan head of the police party and also by the trial Judge where when the vehicle was produced and inspected, no cavities were found therein. He further submitted that there is contradiction regarding scribe of the Murasila and that neither driving licence nor ownership ship documents of the vehicle in question were brought on record-. In view of the aforesaid contradictions, he prayed for acquittal of the appellant.
6. The learned counsel appearing on behalf of appellant Firdous by adopting the arguments of the learned counsel for the appellant Shahab, submitted that the appellant was not in conscious knowledge of the presence of the contraband in the vehicle and that appellant has not been involved in any offence of such nature in the past and prayed for his acquittal.
7. The learned counsel appearing on behalf of the State, submitted that the prosecution version furnished by the P.Ws. Is credible and confidence inspiring; that except minor discrepancies there is nothing on the record to create any doubt as to the guilt of the appellants and that in the absence of any on the part of the P.Ws., the charge against the appellants stands proved beyond doubt, therefore, the conviction and sentence recorded by the learned trial court being based on proper appraisal of evidence merits no interference.
8. We have gone through the record carefully and have considered the submissions made- by the learned counsel for the parties.
9. The prosecution to prove its case, produced as many as 4 witnesses. P.W.1 Alam Taj Khan, A.S.-I., Police Station 'faith Bhai, stated that on receipt of Murasila Exh.PA/1 at the hand of Constable'
Kachkole, he incorporated the same into F.I.R. Exh.PA. In his cross-examination he has stated that both Murasila along with case property were brought to the Police Station. P.W.2 Hameedullah F.C.
Police Post Shago Naka, is the marginal witness to the recovery Memo. Exh.P.W.2/1 whereby P.W.4 Fazal Subhan Khan took into possession 16 kgs chars recovered from the car boarded by the appellants. He owned his signatures on the recovery Memo. Exh . P. W.2/1 . P. W.3 is Zarif Khan, S.-L, Police Station Shergarh who stated that on receipt of Murasila and F.I.R., he proceeded to the spot, prepared site plan Exh.PB and recorded statements of P.Ws. Under section 161, Cr.P.C. At the last leg of prosecution evidence, Fazal Subhan Khan S.H.O., Police Station Sher Ghar was examined as P.W.4 who gave the same sequence of narrations of facts as given in the F.I.R. After reappraising the entire evidence produced by the prosecution in the form of P.Ws.1 to P.W.4, it came to lime light that there are some glaring contradictions in the case of the prosecution, it is case of the prosecution that the contraband was in 16 packets, each packet having one slab with weighment of 1000 grams each but when the case property was produced in the court and the parcels were desealed at the orders of the trial court, though there were 16 packets in all, but out of which 5 packets were having two slabs each while remaining 11 packets were having a single slab each. Beside this, the prosecution evidence is silent about the exact quantum of contraband recovered from each seat i,e, front seat and the rear seat. This contradiction is fatal to the case of the prosecution. Similarly, in the Murasila and the F.I.R., it is averred that the recovered contraband was kept in the secret cavities prepared for the purpose but during court inspection, no such cavities were found in the vehicle in- question, totally negating the prosecution version. The factum of non-presence of secret cavities was also admitted by P.W.4 in his court statement that no secret cavities were prepared in the motorcar. Likewise, P.W.4 Fazal Subhan Khan stated in his examination-in-chief that after recovery of contraband, he scribed the Murasila and also prepared the recovery Memo but in the cross-examination, he stated that both the recovery Memo and the Murasila were dictated to Rahat Gul Madad Muharrir. The relevant portion of his cross-examination is reproduced as under:- "The Murasila, recovery Memo and application to the FSL are in the hand-writing of constable Rahat Gul muharrir of the police post. I dictated both the documents to him at the spot."
10. A very fatal point going into the very roots of the prosecution case is that one Rahat Gul Madad Muharrir whose name has been introduced in the court statements of the P.Ws.; has neither been shown in the Murisila not in the F.I.R. To be a member of police party nor shown as a witness to the recovery Memo. This overt act on the part of prosecution negates the prosecution version regarding presence of Rahat Gul at the relevant time.
11. According to the version of P. W.1 Alam Taj Khan A.S.-I., given in the cross-examination, "the case property and accused were brought to the P.S. Along with Murasila" but this version was controverted by P.W.3 Zarif Khan S. -I. Who has stated in his cross-examination that "I received murasila and copy of F.I.R. At about 1740 hours. I reached to the spot at about f800 hours. When I reached to the spot the accused and the case property were present on the spot. The accused was handed over to me while the case property remained with the complainant of the case." From their conflicting stances, it cannot be inferred as to which one is correct. Furthermore, the non- recovery of driving licence and registration book of the vehicle has also C caused dent to the prosecution case because a star witness of the prosecution, namely P.W.3 in his cross-examination has stated that "it is correct that in the statement of Hanif Gul it has not been mentioned that who is driver of the car and who was seated in front seat". Admittedly, appellant Shahab was a juvenile at the time of alleged occurrence. There is also nothing on the record to show that the appellants ever remained involved in such-like crimes. It is also pointed out that the vehicle in question was on rent which was neither owned by either of the appellants nor anyone of them was a driver. Most probably it was taken from the Rent a car the same day, therefore , conscious knowledge of the contraband has also become doubtful. Had the appellants been in knowledge of the presence of contraband in the vehicle, they would have made effort to accelerate the speed of the vehicle when they were given signal to stop, therefore, this conduct on the part of appellants also raises finger qua their conscious knowledge regarding presence of contraband in the vehicle.
12. In view of the infirmities and contradictions highlighted above, we are constrained to hold that on the basis of such scanty and deficient evidence produced by the prosecution, conviction and sentence recorded by the learned trial court cannot be maintained as it is well-settled principle of criminal dispensation of justice that a single doubt is sufficient for extending benefit of doubt to an accused. Whereas in the instant case there are sufficient contradictions, discussed above, which led us to the conclusion that not only the investigation but the evidence of the prosecution is fraught with numerous doubts.
13. For the reasons discussed above, both the appeals are allowed, the conviction and sentences recorded by the learned trial Court are set aside and the appellants are acquitted of the charge.
They be set at liberty forthwith, if not required in any other case.