Mian Fasihul Mulk, J.--This appeal is directed against judgment dated 22.06.2010 passed by learned Judge, Special Court (CNS), Peshawar whereby appellants Said Zareen, Bakhshad and Wali Khan, were convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to rigorous imprisonment for life with a fine of Rs, 50,000/- or in default thereof to suffer six months simple imprisonment. However, benefit under Section 382-B, Cr.PC was extended to them. Similarly, Cr.A.No, 622 of 2010 is directed against the same judgment, whereby appellant, Sajjad Khan has prayed for setting aside the impugned judgment to the extent of confiscation of vehicle bearing Registration No, JA/6125/Karachi. Through this judgment, we propose to decide both the appeals as the same are the outcome of same judgment involving similar facts and question of law.
2. Brief facts of the case are that complainant, Alam Zeb: Inspector, on the information conveyed to him through reliable sources that huge quantity of narcotics would be smuggled in Bus No, JA6125/Karachi from Bunair to Karachi, laid a picket at Peshawar-Rawalpindi Motorway near Marhatti alongwith other officials. In the meanwhile, bus in question was found coming from Mardan side, which was signaled to stop. The Bus was being driven by Said Zarin Khan whereas Bakhshad and Wali Khan were present in the bus as his co-driver and conductor respectively. The bus was brought to Police Station. where its search led to the recovery of 40 packets of charas pukhta, each packet weighing one kilogram, total 40 kilograms from its right and left secret cavities. From each packet of the recovered charas, 5/5 grams were separated for chemical analysis and sealed in parcels whereas the remaining charas was also sealed in a different parcel.
He arrested the appellants and registered FIR No, 873 dated 26.12.2008 under Section 9 (c) of the Control of Narcotic Substances, Act, 1997 in Police Station Akora Khattak. After completion of investigation, complete challan was submitted against the appellants to the Court for trial, where copies of the relevant documents as required under Section 265-C, Cr.PC were supplied to them.
The charge was framed to which the appellants pleaded not guilty and claimed trial.
3. The prosecution in order to prove the charge and substantiate the allegations levelled against the appellants, produced 03 witnesses at trial. Amin Nisar, S.I was entrusted with investigation of the case. He prepared site-plan, Ex.PB and Ex.PB/1; received FSL report, Ex.PK and on completion of investigation handed over complete challan to the SHO. PW-2 Behroz Khan, ASI was an eye-witness as well as marginal witness to the recovery memo., vide which the SHO had recovered and taken into possession the alleged charas from secret cavities of the bus in question. PW-3 Alamzeb Khan: Inspector is the complainant, who in his statement has reiterated the contents of his report.
4. On conclusion of prosecution evidence, appellants were examined under Section 342, Cr.PC wherein they denied the charge. The learned trial Court, after hearing the parties and appraising the evidence, convicted and sentenced the appellants as stated above.
5. Learned counsel for the appellants argued that the vehicle in question was not the ownership of any of the appellants; neither registration of the bus was recovered nor any driving license of appellants were recovered, as such, the recovery allegedly made from its secret cavities had shifted burden to the prosecution to have established that the appellants were-involved in the commission of offence and also were in the knowledge of the same. He next contended that there are material and fatal discrepancies/omissions in the statements of prosecution witnesses, which make the case against appellants as highly doubtful. Also argued that neither the alleged recovered charas was produced before the trial Court nor the recovery memo. was exhibited on record, hence even if it is presumed that the prosecution has merely proved presence of accused in the vehicle; it would not involve them in the case.
6. As against that, learned State counsel argued that huge quantity of charas was recovered from the bus in question and the two appellants, being its drivers and the third appellant as its conductor, were arrested on the spot. The samples, so prepared from the recovered narcotics were sent to FSL, the report whereof is in positive, therefore, the prosecution has successfully established its case against the appellants and they were rightly found guilty of the charge by the trial Court.
7. We have heard the learned counsel for the appellants as well as the State and have gone through the record.
8. The evidence of the three prosecution witnesses would reveal that they have contradicted each- others on material aspects of the case. According to the contents of FIR, the bus in question arrived at the spot at 1.00 p.m. whereas the Investigating Officer (PW.1) has stated that he was present in the P.S when received information regarding the offence at about 12/12.30 p.m. It is mentioned in the FIR, that no search was conducted on the spot and the bus was brought to the P.S where it was searched and alleged narcotics were recovered from its secret cavities. The Investigating Officer has again contradicted such part of the report by saying that when he reached the spot, the local police had already searched the vehicle. According to FIR, the bus in question was coming from Buner but the I.O. has stated that as per his investigation, the vehicle had started from Mardan to Karachi. The Investigating Officer (PW.1) has admitted that in the two site-plans prepared by him, he has not shown the presence of accused. Similarly, he has also deposed that marginal witnesses to the recovery memo. while recording their statements under Section 161, Cr.P.C. neither disclosed the names of accused nor shown the factum of their arrest. Behroz Khan, ASI (PW-2) has stated that there is no mention of arrest of accused in the recovery memo., and showed his ignorance whether the bus was searched on the spot or not. The complainant/SHO in his statement has admitted that the bus in question was coming from Buner and proceeding to Karachi alongwith passengers. He admitted it correct that nothing incriminating was recovered from immediate/direct possession of accused nor any registration or license etc. in the names of appellants were recovered. In his cross-examination he has negated the contents of his report and stated that he had detected and searched out the contraband on motorway and then the vehicle was shifted to the P.S.
9. Neither the alleged charas was produced at the trial nor its destruction certificate according to law was brought on file. The FSL report though is in positive, but as per application dated 26.12.2008, the samples were sent to the FSL, where the same were received on 13.01.2009 i,e, after about 18 days but nothing is brought on file by the prosecution that during these days the samples were in safe custody. Over and above, the very recovery memo., has not been exhibited on record. Though, PW.2 in his statement has stated that the recovery memo., is Ex.PW2/1 but admittedly the recovery memo. available on record, having no exhibit and signature of the Presiding Officer, though can be looked into for the purpose of elucidation of certain facts but the same by no stretch of imagination can be termed or regarded as "evidence" unless proved and exhibited at trial in accordance with law. Truth of the contents of a document cannot be proved by merely producing the same for inspection of the Court within the purview of Art. 2(c)(ii) of the Qanun-e-Shahadat, 1984. Reliance can be placed on the case of Muhammad Arshad Naseem vs. The State (2004 P.Cr.LJ 371). Similarly, non-production of case property in such an eventuality would get much importance and failure of prosecution in this regard would create relevant doubt about its recovery. Such a conclusion has already been drawn by the Lahore High Court in the case of Agha Qais versus The State (2009 P.Cr.LJ 1334).
10.In nutshell, the prosecution has failed to prove charge against the appellants beyond any shadow of reasonable doubt. There are serious dints in the prosecution case, creating sufficient doubt about the alleged recovery, the benefit of which would go in favour of appellants. Cr.A. No, 654/2010 is therefore accepted, the impugned conviction and sentences of the appellants are set aside and they are acquitted of the charge. They shall be released from jail forthwith, if not required in any other case.
11. Similarly, the prosecution on one hand has failed to show the conscious knowledge of Sajjad Khan, owner of the bus in question and on the other hand the trial Court, while ordering the confiscation of the bus in question has neither heard the appellant nor provided him an opportunity of producing evidence, as required under second proviso to sub-section (2) of Section 33 of the Control of Narcotic Substances Act, 1997, hence the impugned order to the extent of confiscation of Bus No, JA/6125/Karachi is also liable to be set aside and we order accordingly. The Bus in question be returned to its lawful owner.
12. For the aforesaid reasons, these appeals are hereby allowed accordingly.