Ms. Musarrat Hilali, J.--The appellant faced trial in case FIR No, 187 dated 22.4.2011 registered u/S. 9(c) CNSA at Police Station Sarband, Peshawar and on conclusion he was convicted by learned.
Additional District Judge/Judge Special Court-III, Peshawar vide judgment dated 22.10.2012 and sentenced to imprisonment for life with a fine of Rs, 100,000/- or in default thereof to undergo six months SI, however, benefit of Section 382-B, Cr.P.C. was extended to him.
2. The contents of FIR reveal that on the eventful day at the relevant time the local police headed by Abid-ur-Rehman, Inspector (SHO) made nakabandi on the crime spot when in the meanwhile motor car bearing Registration No, JB-809-ICT/Islamabad coming from tribal territory was signaled to stop. On query, the driver disclosed his name as Akhtar Gul alias Naveed son of Janab Gul resident of Maqsood Abad presently Railway Quarters, Peshawar Cantt. Search of the vehicle led to the recovery of 25 KGs of chars pukhta from the secret cavities made in the CNG kit. 5/5 grams from each packet was separated for chemical analysis while the remaining stuff was sealed into another parcel, hence the case was registered against the appellant.
3. On conclusion of investigation, challan was submitted where the appellant was charge sheeted to which he did not plead guilty and claimed trial. At the trial, the prosecution in order to substantiate its case produced four witnesses in all, which is as under:-- PW-1 is Amir Muhammad, SI, who appeared as PW-1 and deposed about registration of the case on receipt of murasila and thereafter handing over copy of FIR to the investigating staff.
Bashir Khan, SI appeared PW-2, who conducted investigation in the case and after receipt of copy of FIR, he proceeded to the spot, prepared the site-plan Ex.PW-2/1 at the instance of the complainant. On 23.4.2011, he produced the appellant before the Magistrate for obtaining police custody vide application Ex.PW-2/2. He interrogated the accused and recorded his statement u/S. 161, Cr.P.C. He also drafted an application Ex.PW-2/4 to MRA/ETO, Islamabad regarding the verification of the vehicle. He received the report of the Chemical Examiner Ex.PW-2/5 and Ex.PW- 2/6. He recorded statements of PWs u/S. 161, Cr.P.C. and after completion of investigation handed over the case file to the SHO concerned for further proceedings.
PW-3 is Abid-ur-Rehman, Inspector (SHO) who is complainant in this case has stated in respect of the occurrence by narrating facts leading to the Nakabandi at the venue of occurrence, emerging of the motor car, its seizure followed by search and recovery of chars, arrest of the appellant and separation of 5 grams each from the packets preparation of the recovery memo. and drafting of the murasila and application Ex.PW-3/4 to FSL for obtaining expert opinion. On conclusion of investigation, submitted complete challan against the accused.
Sultan Sher, ASI appeared as PW-4, who deposed that in his presence the complainant recovered 25 packets chars pukhta, which were kept in the secret cavities of CNG kit. On weighment each packet came out to be 1/1 KG total 25 KGs. The I.O. separated 5/5 grams for FSL while the remaining stuff was sealed into separate parcel vide recovery memo. Ex.PW-3/1.
4. On conclusion of prosecution evidence, the appellant was examined u/S. 342, Cr.P.C., wherein, he denied his involvement in the case and professed innocence, however, he neither opted to produce evidence in his defence nor wished to be examined on oats as required u/S. 340(2), Cr.P.C.
The trial culminated in conviction and sentence of the appellant, which has now been questioned through the instant appeal.
5. Learned counsel for appellant contended that the appellant was convicted on highly doubtful and interested evidence of prosecution; that the prosecution failed to connect the appellant with the commission of alleged crime; that all the PWs have contradicted each other with regard to recovery of contraband, the mode of recovery coupled with the arrest of appellant, which has made the prosecution story highly doubtful and concocted one. Learned counsel prayed for acquittal of the appellant by extending him the benefit of doubt.
6. As against that learned State counsel argued that the appellant was found in possession of 25 KGs of chars, which is corroborated by the positive expert report; that the appellant, failed to bring on record any evidence regarding the police having falsely implicated him with alleged crime. He was of the view that the PWs were consistent with regard to the mode and manner of recovery from the appellant, which was rightly appreciated by learned trial Court resulting in conviction and sentence of the appellant.
We have heard learned counsel for the parties and gone through the record available before us.
7. In order to substantiate its case, the prosecution has examined four witnesses in all, who contradicted each other on material points, which requires to be discussed for the safe administration of justice. The record reveals that PW-2 and PW-3 were not in line with each other regarding the recovery of contraband as to whether it was recovered from the CNG tank or CNG kit or beneath the rear seat. According to PW-2 the contraband was recovered from the front seat and some from CNG tank. It seems very strange and artificial story that the police party, without prior information, stopped the car, allegedly driven by the appellant, who did not resist at all. The police then not only searched beneath the rear seat but also opened CNG tank, which is not possible without the help of mechanic or mechanical instruments and that too when the police party did not know whether it was filled with gas or not and there was every possibility that it might blast. Strange enough the time of arrest as stated by PW-3 is 7.00 a.m. whereas the time of occurrence is shown to be 7.30 a.m., which is clear on record that the arrest was made prior to the occurrence. The contraband allegedly recovered was not produced in the Court rather the case property, which was brought to the trial Court, belonged to a case titled Khadi Khan vs. State. The recovery memo. does not should. any mention of the FIR number. The record reveals that only ten grams was sent to FSL for analysis, however, as per judgment of the Hon'ble Supreme Court in the case of Arneer Zeb Vs. The State, the appellant could only be held liable for having ten grams chars.
8. Thus, on the basis of above contradictions and lacunas in the prosecution case, the learned trial Court has wrongly convicted and sentenced the appellant.
9. Accordingly, this appeal is allowed, the conviction and sentence of the appellant is set aside. He is acquitted of the charge levelled against him and be set at liberty forth, if not required in any other case.
Hereinabove are the reasons for our short order of even date.