' SHAH JEHAN KHAN AKHUNDZADA, J.---Iftikhar Ahmad alias Nigar Ahmad appellant has filed the instant appeal against the judgment dated 7-1-2012 passed by the learned Additional Sessions Judge-VII/Judge Special Court, Peshawar whereby he was convicted under section 9(c) Control of Narcotic Substances Act, 1997 and sentenced to five years' R.I. With a fine of Rs,50,000 or in default to undergo further six months' R.I. However, the appellant was acquitted of the charge under section 419 P.P.C. Benefit of section 382-B, Cr.P.C. Was also extended to him
2. Brief and essential facts of the prosecution case are that there was information that a person present in Daewoo Bus Stand would smuggle heroin towards Punjab in the packets of Shahan Kheer. On this information Muhammad Attique Shah Inspector/S.H.O. Of Police Station, Gul Bahar along with other police contingents went to the said place where on the pointation of informer, he apprehended the said person having a "Khar" colour cotton/packet in his hand who on enquiry of the said S.H.O. Disclosed his name as Nigar Ahmad son of Gul Zamin resident of Ghaniur Rehman Qilla Takhat-bhai. On opening of the said cotton, he recovered further 27 packets each containing heroin which were weighed and each one of it was found to be 150 grams, out of recovered packets of heroin, he separated one gram from every packet and packed and sealed it separately while the remaining heroin was packed and sealed in a separate parcel. Thereafter he prepared murasila to this effect and sent it to the Police Station Gulbahar for the registration of a case under section 9(c) C.N.S.A. Against the accused Iftikhar Ahmad alias Nigar Ahmad on the basis of which case vide F.I.R. No,888 dated 21-11-2010 was registered. He arrested the accused and the rest of investigation was carried out by ' Arbab Nawaz S.-I. Who after completion of investigation, submitted complete challan in this case before the court of competent jurisdiction. ' The trial Court after summoning the accused complied with the provision of section 265-C, Cr.P.C. Against accused and thereafter the appellant was charged under section 9(c) of Control of Narcotic Substances Act, 1997 on 25-3-2011 but the appellant pleaded not guilty to the charge and claimed trial.
3. In order to prove its case, the prosecution has produced as many as four witnesses before the trial Court.
4. Amjad Ali, P.W.1 after receiving murasila in the PS, has correctly incorporated its contents into F.I.R.
Exh.PA. Arbab Nawaz S.-I. P.W.2 and Muhammad Attique Shah Inspector investigated the case and completed all the legal formalities while Aftab Alam A.S.-I. P.W.4 is the marginal witness of recovery memo . Exh. P. W.3/1.
5. After, recording evidence of the above witnesses available on file of the trial Court in detail, the appellant was examined under section 342, Cr.P.C. Wherein he denied all the allegations made out against him by the prosecution and professed innocence. He neither opted to give statement on Oath under section 340(2), Cr.P.C. Nor wanted to produce any evidence in his defence. After conclusion of trial, the trial Court after hearing arguments of the learned APP and counsel for defence convicted arid sentenced the appellant vide impugned judgment, details of which are mentioned in the earlier part of this judgment.
6. We have heard arguments of learned counsel for appellant and Addl.A.G. For the State and have perused the record with the assistance of their valuable arguments.
7. The case of prosecution is that on 21-11-2011 complainant Muhammad Attique Shah, S.H.O. On receipt of information regarding the smuggling of heroin towards Punjab, rushed to Daewoo Bus Stand, where on the pointation of the informer, he apprehended the appellant having a carton in his hand containing contraband heroin weighing 4050 grams. He arrested the appellant on the spot. Memo Exh.P.W.3/1 to this effect was prepared and a small quantity of one gram from each packet was separated, packed, sealed it separately and sent it to the. Chemical Examiner, FSL, Peshawar for analysis whose report is Exh.P/7 is in positive while remaining quantity of heroin was packed and sealed in another parcel.
8. Muhammad Attique Shah Inspector/S. H.O. While appearing in the witness box as P.W.1 deposed in the cross-examination that the cotton in which the alleged contraband heroin was found was not bearing the name and parentage of the appellant and the contraband was lying inside the small packet wrapped in small plastic. He further admitted that no private person was associated at the time of recovery of the contraband heroin. He further admitted that at the time of arrival of Arab Nawaz S-I. P.W.2 neither he nor the accused were present on the spot and the I.O. Has not seen the case property and he also not shown the contraband heroin to the I.O. In the Police Station. According to him, the recovery memo was prepared under his dictation but he did not remember the name of person to whom he has given dictation. He has also stated in his statement that the copy of monogram of the seal showing words GB were packed and sealed inside the packets of narcotics but Rab Nawaz S.-I. While appearing as P.W.2 deposed in his statement that after registration' of the case he rushed to the spot and prepared site plan Ex.PB ,at the instance of complainant in the presence of P.Ws. He stated that the place where the occurrence has been shown as a very busy place. He further deposed that he has not shown the office of General Manager, any passenger or any vehicle in the site plan Exh.PB. He also admitted that no person from the public was associated as witness to the recovery memo and that neither he has seen the case property nor has himself weighed it nor has sent the samples separated from the alleged recovered heroin for analysis to FSL. Likewise, marginal witness of the recovered memo Exh.P.W.3/1, P.W.4, namely Aftab Alain has given quite contradictory statement during his cross-examination to that of P. W.2 and P. W .3 .
9. It appears that the learned trial Court has not properly appreciated the evidence of P.Ws. 2, 3 and 4 who contradicted each other on material points, rather has failed to have taken into consideration those material and glaring contradiction in between their statements for discarding their evidence in toto. Since all these contradictions are present in their evidence, hence we do not need to reproduce it one by one, however, the occurrence as stated to have taken place inside the Daewoo Bus Stand seems doubtful because the I.O. Has neither recorded the statement of General Manager A of the bus stand nor any private person has been associated in the proceedings in order to show the presence of the appellant on the said place or to prove that in fact he occurrence has taken place inside the aforementioned Daewoo Bus Stand. Nevertheless, discrepancies in the depositions of witnesses available on file are so glaring and material which in our view are more than sufficient to consider it fatal to shatter the testimony of the above said prosecution witnesses and to render it unbelievable. Hence in view of the above discussion testimony of the above said witnesses is brushed aside.
10. It was contended with justification that there was considerable delay in despatching the parcel to the laboratory, which makes the report of FSL tampered with and unauthentic. Evidence on file shows that the alleged recovery of heroin has been effected on 21-11-2010 but the parcels i.e, .1 to 27 containing samples of heroin for analysis were received in the office of Chemical Examiner, Peshawar on 27-11-2010. The report Exh.P7 of the Examiner is dated 30-11-2010 and there is no explanation on record as to in whose custody the said parcels were lying during this period because no such evidence is forthcoming on record while according to rules framed under CNSA 1997, the said samples must /shall be sent to the Chemical Examiner within seventy two hours. But here in the case in hand it has been sent there after unexplained delay of six days and it is not known to prosecution as to who took the same to FSL and where it was 'kept in the intervening period. Hence, in view of the above stated circumstances it has been held by the apex Supreme Court in plethora of judgments that no reliance can be placed on such FSL report and possibility that the same has been tampered with could not be ruled out.
11. It was also pointed by learned counsel for appellant during the course of arguments before us that material investigation in the case in hand has been conducted by S.H.O. Muhammad Attique Shah complainant of this case, who hails from Operational Wing of the Police while Article 18 Sub- Article (4) of the Police Order, 2002 envisages that all registered and cognizable cases entailing punishment for more than three years shall be investigated by an Officer of the Police not below the rank of the Sub-Inspector Investigation Wing of the Police, therefore, he contended that the entire material investigation carried out by S.H.O.. Muhammad Attique Shah in the shape of preparation of the recovery memo for the alleged recovered contraband its weighing by him and sending of the samples separated by him from the whole lot of contraband for analysis to the FSL are violation of .The said mandatory provisions of law, hence it has, got no legal effect rather such violation vitiates the entire investigation. Learned counsel for the State could not controvert this contention of the defence rather admitted that in fact the material investigation has been conducted, in this case by S.H.O. Attique Shah, who is complainant as well, of this case. Thus, we are of the view that the contention raised by the learned counsel for appellant has substance in it and we hold that the material investigation carried by Attique Shah is violation of the Mandatory provisions of law on the subject and the same in turn in our view casts serious doubt and affect the authenticity, fairness and credibility of the entire, investigation of the case on which no explicit reliance can be placed.
12. The requirements of the criminal law is that prosecution is duty bound to prove its case beyond any reasonable doubt E and if any single or slightest doubt is created, benefit of it must go to the accused and the same is sufficient to discredit the prosecution story and entitles the accused for acquittal. Since there are numerous doubts, in the prosecution case, therefore, benefit of it is given to appellant.
13. For the foregoing reasons we hold that the, prosecution has failed to establish its case against the appellant beyond an' reasonable doubt and due to above reasons impugned order/judgment is not sustainable in the eye of law. We, therefore, accept this appeal, set aside the conviction and sentence of the appellant recorded by the learned Additional Sessions Judge-VII, Peshawar vide judgment dated 7-1-2012 and he is acquitted of all the charges levelled against him. He be set at liberty forthwith, if not required in any other case.