' KHALID MEHMOOD KHAN, J.---Appellant, namely, Sikandar Shah son of Muhammad Suleman, has impugned the judgment/order passed by learned Addl: Sessions Judge-II/Judge Special Court, Bannu on 13-7-2011 vide which he has been convicted under section 9(b) of the Control of Narcotic Substances Act and sentenced to five years' rigorous imprisonment with fine of Rs,20,000. In default of payment of fine he has further been directed to undergo three months' S.I. He has also been convicted under section 13 A.O. And sentenced to three years' rigorous imprisonment with fine of Rs,20,000. In default of payment of fine he has further been directed to undergo three months' S.I.
Both the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended to the appellant/accused.
2. Short facts of the present case as per F.I.R. Are that on 18-2-2010, complainant Muhammad Ismail Khan S.H.O. Police Station, Cantt:, Bannu was informed by the Muharrir of the police station that Ghulam Rabani along with other police contingent had arrested one Zahidullah during patrolling and from his possession heroin was recovered, who disclosed that he had purchased the same from one Sikandar Shah. Upon this information the complainant along with other police contingent, raided the house of accused/appellant. The accused/appellant on seeing the police party tried to escape but he was apprehended and from his possession a polythene bag which was containing 300 grams heroin recovered and on his further search of body one .30 bore pistol along with spare magazine containing 25 live rounds of the same bore was also recovered for which he could not prove any license, hence case F.I.R. No,59 dated 18-2-2011 registered under section 9 C.N.S.A. At Police Station, Cantt. Bannu.
3. Challan against the appellant/accused was submitted before the learned trial Court and the learned trial Court took cognizance of the case. Appellant/accused refused to plead guilty thereof the charge framed against him; therefore prosecution was directed to record its evidence to prove guilt of the appellant/accused.
4. The prosecution examined four witnesses during trial against the appellant/accused and then closed its evidence, where after statement of appellant/accused was recorded under section 342, Cr.P.C. Neither the appellant/accused recorded his statement on Oath under section 340(2), Cr.P.C.
Nor produced any evidence in defence.
5. The learned trial Court after hearing arguments of both sides convicted the appellant/accused and sentenced him as per detail given in first Para of this judgment.
6. Learned counsel for the appellant argued that the complainant after the recovery of heroin the same was not sealed into parcel and unsealed heroin was handed over to the Investigating Officer.
He contended that no one from the public was associated by the complainant at the time of alleged recovery and the recovered contraband was sent to the FSL after the delay of four days of the occurrence, though the recovery was affected from the thickly populated area but not a single independent witness has been associated with the recovery memo by the investigating officer. He submitted that the statement of the P.Ws. Contradicting with each other and P.W.4 in his cross- examination has admitted the fact that he has not weighed the recovered contraband. He urged that the Investigating Officer has also stated that he has not initialed the contraband while sending the same to the chemical examiner. Learned counsel for the, appellant referred to the statement of appellant/accused in which questions Nos.1 and 3 were put to the appellant/accused that 300 grams charas was recovered from your possession, which is sufficient to discard the entire story of the prosecution. In this regard he relied upon case titled Muhammad Shah versus the State reported in 2010 SCM R 1009 and Sherdal v. The State reported in 1999 SCM R 697. So for question of recovery of pistol is concerned learned counsel for the appellant/accused produced the license copy before this Court regarding which the pistol was licensed one and the, appellant was illegally convicted under section 13 A.O.
7. On the other hand, learned D.A.-G. For State argued that the appellant/accused directly has been charged in the F.I.R. And contraband has been recovered from the possession of appellant/accused. He contended that no enmity for false involvement of the appellant/accused has been brought on record and the FSL report corroborates the version of prosecution. He submitted that the evidence produced by the prosecution is straightforward and confidence inspiring. Regarding questions Nos.1 and 3 put to the appellant/accused at the time of examination under section 342, Cr.P.C. Learned D.A.G. Was of the opinion that the same a typographic mistake which can be ignored.
8 Arguments heard and record perused, in the light of which our discussion is as under.
9. It is admitted fact that the complainant just after the recovery of the contraband and pistol the same were not sealed into parcels. The sample was sent to the FSL with unexplained delay of four days. The investigating officer admitted the fact that he did not weigh the recovered contraband. It was duty of the Investigating Officer to have weighed the recovered contraband and no one from the general public was examined by the Investigating Officer. The statement of appellant/accused recorded under section 342, Cr.P.C. Is the outcome and the result of evidence recorded by the prosecution against him. The evidence is formulated in the shape of questioner wherein any incriminating article or evidence produced during the trial for proof of guilt of appellant/accused is clearly asked from him to enable for giving his explanation. In present case in questions Nos.1 and 3 it is clearly mentioned that charas 300 grams from the possession of appellant/ accused were recovered whereas in the F.I.R. And as well as in the evidence of prosecution was that contraband recovered from the possession of appellant/accused was heroin.
10. We do not agree with the contention of learned D.A.G. That the same is typographic mistake at the time of recording of statement of appellant/accused under section 342, Cr.P.C. If at all it is considered for a moment then the prosecution after recording the statement before announcement of the judgment even at the time of arguments could have moved an application for correction of the same. Even before this Court prosecution had not moved any application for the correction of the so called typographic mistake. This suggests that the stance of prosecution regarding the recovery of charas is the outcome of entire evidence which creates doubts regarding the whole story of prosecution. In this regard wisdom can be drawn from cases reported in 2010 SCM R 1009 and 1999 SCM R 697.
11. In these facts and legal aspect of the prosecution case it is proved that the case of prosecution is full of doubts and the prosecution has been failed to prove its case beyond any shadow of doubt.
12. So for question of recovery of pistol is concerned the licence copy produced today in the Court was shown to the learned D.A.G who admitted it correct that the recovered pistol is licensed one.
The learned D.A.G objected that the same was not produced before the learned trial Court at the time of recording of evidence, hence at this stage it cannot be looked into. As the pistol is licensed one and it is futile exercise to remand the case on the said technical ground whereas prosecution has also been failed to prove case against the appellant/accused.
13. The result of our above discussion is that the case of prosecution is full of doubts. Hence, the appeal of the appellant/accused is accepted by setting aside the sentence and conviction recorded by trial Court in the impugned judgment and acquit him from the charges levelled against him. He be set free forthwith if not required in any other case.