' ROOH-UL-AMIN KHAN, J.---Through this single judgment, we propose to dispose of the instant Criminal Appeal No,66 of 2012 as well as the connected Criminal Appeal No, 78 of 2012 as both are arising out of the same impugned judgment. Dated 17-1-2012 passed by the learned Additional Session Judge/Judge Special Court-VII, Peshawar.
2. The appellants have challenged the impugned judgment date 17-1-2012 passed by the learned Additional Sessions Judge/Judge Special Court-VII, Peshawar whereby they were convicted under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to ten years' R.I. With fine of Rs,50,000 each or in default to suffer further six months' S.I. Benefit of section 382-B, Cr.P.C. Was extended to the appellants.
3. Short facts of the prosecution case are that the complainant Ghaffar Ali Khan SI along with other police contingents were present on gasht at General Bus Stand, Peshawar, had received information that two persons have tightened charas with their bodies with intention to smuggle the same to Punjab. On this information, they rushed the place of, occurrence and two persons were stopped for checking, who disclosed their names as Imran son of Ziauddin and Shahzada son of Fazle Wahid. On search, 10 kgs. Charas were recovered from each of the accused-appellants, out of which, 5/5 grams each were separated for analysis through FSL and the remaining stuff were separately sealed in a parcel. The accused were arrested on the spot and a case under the above section of law was registered against them.
4. After completion of usual investigation, challan was submitted before the trial Court where on 23-6-2011, the appellants were formally charged under section 9(c), C.N.S.A. To which they pleaded not guilty and claimed trial.
5. To substantiate its charge against the appellants, the prosecution has produced as many 'as four witnesses in the witness box. When examined under section 342, Cr.P.C. The appellants claimed to be innocent and have been falsely implicated in the case. They did not choose to appear in their own defence on oath under section 340(2), Cr.P.C. And also produced no defence.
At the conclusion of the trial, after hearing the learned counsel for the parties, the learned trial Judge convicted and sentenced the appellants through the impugned judgment, as noted above.
6. We have heard the learned counsel for the appellants as well as the learned State counsel and also perused the record.
7. Case of the prosecution is that, on 1-3-2011 at 9-00 p.m., Ghaffar All Khan SI along with other police officials, were present on gasht at General Bus Stand and on prior information, from reliable source, to the effect that two persons, who have concealed contraband with their body will smuggle the same to Punjab. On surveillance, inside the General Bus Stand, on the pointation of informer, two accused were arrested and recovery of 10 slabs each consist of one kg. Charas was effected from the jacket beneath shirts of each accused. He separated 5/5 grams from each slab of recovered contraband for the purpose of analysis and onward sending to Forensic Science Laboratory.
8. In support of the case, prosecution produced four P.Ws. And also placed a positive FSL report dated 14-4-2011 on the file.
9. From perusal of the record, the prosecution evidences were found full of contradiction on material points. The murasila and recovery memo both are prepared by the complainant, but perusal of signature on the murasila and recovery memo does not tally with each other. There is a lot of difference in the signature on murasila and recovery memo. Besides, the original murasila reveals overwriting on the date mentioned beneath the alleged signature of the complainant. Even the writing of murasila and recovery memo are in different hand and this fact has also been admitted by the complainant in cross-examination. According to the I.O. The murasila was transmitted to the Police Station through Muhammad Tariq, Constable, but when Alamgir constable appeared before the Court as P.W.2, he claimed himself as carrier of the murasila from spot to the Police Station. The statement of complainant is further contradicted by the alleged eye- witness to the effect that the complainant asserted that the informer was present on the spot while the P.W.2 stated that they were not accompanied by the informer on the spot.
10. According to the complainant and recovery memo, the contraband was recovered from the personal possession of the appellants by him, while the P.W.2, at the very outset, stated in his examination-in-chief: "I am marginal witness to the recovery memo Exh.P.W.2/1 vide which in my presence the I.O. Took into possession during routine mobile gasht from accused Imran and Shehzad under their shirts a jackets were wearing by them and 10/10 Kgs. Charas pukhta were recovered consisting of 20 packets, on weighment each packet came out to be 1/1 kg and total 10 kgs charas pukhta".
The statement of this witness ascertain the presence of I.O. On the spot before registration of the F.I.R. And at the time of alleged recovery from the appellants. P.W.2 also contradicted the recovery memo and according to the statement, 2/2 packets were recovered from two pockets while 1/1 packets were recovered from another pocket of each accused-appellant which comes to five (05) packets total recovered from each accused. He further stated that the packets were wrapped in black and white plastic but on opening the sample by the Trial Court, it was found that all the packets were wrapped in a black and gray colour of wrapper. All the witnesses are unanimous that the occurrence took place in the precinct of the General Bus Stand which is a thickly-populated place. Of course, the provision of section 103, Cr.P.C. Is excluded by section 25 of the Control of Narcotic Substances Act, 1997 and the association of independent witness is not necessary at the time of search, seizure and arrest, then the statement of official witnesses shall be looked into very carefully and shall be scaled with a great caution, because in the prevailing circumstances, in our society, a police constable is seldom expected to defer with his officer and will tell the truth.
11. The prosecution story that two persons, who are drug barren, carrying 10 kgs charas each (total 20 kgs) from Peshawar to Punjab. Both of them have arrived at General Bus Stand for boarding on a public transport, leaving for their destination i.e, Punjab. It is astonishing that both the persons are empty pocket, who do not have a single penny in their pocket. Besides, they are not even in, possession of bus ticket.
12. From the available record, it transpired that the raiding party of police consists of five persons, namely, Ghaffar Ali, Alamgir, Muhammad Tariq, Liaqat and Habibullah. All the above five persons were present at the time of occurrence of offence and arrest of the appellants. P.W.2 Alamgir constable or Muhammad Tariq (disputed) took the murasila by hand to Police Station for registration of F.I.R. Rest of the officials remained present on the spot till arrival of the I.O. On putting a glance over the statement of P.W.1, it reveals that on his arrival on the spot, the police officials' were found present but the accused and the case property was not available on the spot. We could not find any explanation or clearance from the entire prosecution evidence available on the file that how and through whom the accused and case property were shifted to Police Station and Malkhana respectively.
13. The murasila and recovery memo reveals that one gram from each slab, total 20 grams were separated from the alleged recovered contraband for onward investigation, and transmission to the Forensic Science Laboratory. From scanning and searching the entire record, we could not find any application for sending the ecovered, 20 grams samples, to the FSL, for chemical examination.
This fact was admitted by the complainant/P.W.3 in his statement in the following words:-- "It is correct that the copy of application to the FSL is not available on judicial file nor on police file".
14. P. W,1 in his cross-examination disclosed that according to the procedure when Moharrir received the case property, he used to enter the same in the relevant register. He admitted that he has not placed the copy of extract of relevant register on file. He also admitted that he has not recorded the statement of Moharrir concerned in respect of receiving and sealing of the case property. Neither any record is available to show that 20 grams charas separated for chemical analysis were received by the Moharrir nor any application is available on file to suggest that the I.O. Or the complainant have directly sent the sample for chemical analysis to the FSL. A document in shape of chemical examination report which was exhibited as P.W.3/2 available on file reveals the date of receipt of 20 grams sample of charas, in the Laboratory on 13-4-2011. Again it creates a serious doubt in the prosecution case that in whose custody and possession, the alleged sample remained for long 40/41 days and who dispatched the same to the FSL. Whether the same was sent through insured post or special messenger duly authorized for the purpose?
15. Admittedly, the murasila was drafted on the spot and the sample were also separated from the recovered contraband on the spot. The record does not disclose that the same have ever been handed over to the I.O., because the I.O., when entered in the witness box has categorically stated that when he reached the spot, neither the accused nor the case property was available on the spot. The complainant has appeared as P.W.3, who also failed to explain the dispatch of contraband to the police station and samples to the Forensic Science Laboratory. After seizure, the prosecution was under legal obligation, as per Rule 4(2) of the Control of Narcotic Substances (Government of Analysts) Rules, 2001, to dispatch the sample for chemical analysis under the cover of a memorandum specified in Column-1 at the earliest but not later than 72 hours of the seizure. In the present case, the samples were allegedly separated from the recovered contraband but regarding the onward dispatch, the entire record is silent, rather an iota of evidence is not available to suggest that the alleged samples have been sent to Laboratory for chemical analysis. The prosecution has failed to explain:--
(i) who brought the samples to Police Station;
(ii) where it was kept for 40/41 days; and
(iii) who carried the samples to the Laboratory for chemical examination.
16. During the course of arguments when the learned State counsel was confronted with this state of affairs, he could not wriggle out from the discrepancies in the prosecution case. Mere positive report from the FSL is not sufficient to bring home guilt of the accused. The complainant as well as the I.O. Also failed, to offer any plausible explanation for missing of the sample for such a long period and then its receipt to the chemical analysis in the Laboratory with a delay of 40/41 days.
17. The contradictory and paradoxical statements of the prosecution witnesses and the dubious Chemical Examiner report creates serious doubt and dent in the prosecution case. Under the principle of criminal justice, the accused is favourite child of the Court and only single doubt is sufficient for his acquittal.
18. For what has been discussed above, we accept these Criminal Appeals, set aside the conviction and sentence of the appellants imposed upon them by the learned Additional Sessions Judge-VIII, Peshawar vide judgment and order dated 17-1-2012 and they are acquitted of the charges levelled against them. They be set free, if not required in any other case.