' SYED AFSAR SHAH, J.---This judgment shall also decide Criminal Appeal No. 310-P of 2012 as both are outcome of one and the same F.I.R./judgment.
2. Appellants in both the matters stood trial in case F.I.R. No. 321 dated 13-4-2011 under section 9(c)
C.N.S.A. Police Station Pishtakhara and on conclusion they were convicted by learned Additional Sessions Judge-VII/Judge Special Court vide judgment dated 24-5-2012 and were sentenced to life term imprisonment with a fine of Rs.1, 00,000 or in default thereof to undergo one year' R.I., however, benefit of section 382-B, Cr.P.C. Was given to them.
3. On 13-4-2011 at about 1345 hrs Aurangzeb A.S.-I. To Police Station Pishtakhara was on gusht of the Illaqa and present on the Ring Road when got information about smuggling of huge quantity of narcotics from tribal territory to Punjab through motorcar bearing Registration No. U- 9342/Peshawar, hence he fenced the road near Ring Road Achini Chowk when in the meanwhile the vehicle already spotted to them emerged, which was signalled to stop but the driver of the car tried to flee away by speeding up the vehicle, however, he was chased and it was near Achini Chowk when the vehicle was brought to halt. During the chase of the car, firing also took place between the parties and resultantly two female inmates sitting the rear seat of the vehicle were injured. On seizure of the vehicle, it was thoroughly searched, which led to the recovery of 52 Kgs of charas pukhta and 3 Kgs Opium. On query, the driver disclosed his name as Shahid whereas the female inmates were, stated to be Mst.Ayesha and Mst.Sakina and since they were in injured condition, therefore, after preparing their injury sheet, they were sent to HMC for further treatment.
Thereafter, A.S.-I. Aurangzeb prepared the recovery of memo. Exh.P.W.2/1, recorded the murasila as Exh.PA/1 and sent it to the PS concerned on the basis of which F.I.R. Exh.PA was registered against the appellants under section 9(c) C.N.S.A. Read with sections 324/ 353/34, P.P.C.
4. Investigation was started in the case and on its conclusion the appellants were sent for trial.
Since accused/appellant Shahid was declared as minor, therefore, he was tried by the Juvenile Court whereas the appellants Mst.Sakina and Mst.Ayesha were tried by learned Special Judge, who on conclusion of the trial convicted and sentenced the appellants, as mentioned above, which they have now assailed through the instant appeals.
5. It is the contention of learned counsel for the appellants that in this case there is unexplained delay in sending the samples to FSL and in which respect he made reference to the recovery memo and report of FSL as Exh.P.W.2/1 and Exh.PZ. He went on to say that the prosecution version is inconsistent with the circumstances of the case as the female accused/appellants of the connected case sitting in the rear seat of the vehicle have sustained injuries and on the other hand no bullet marks were found on the vehicle in which they were travelling. Developing his arguments, he added that in view of the injury on the buttock of one of the accused and absence of bullet marks on the vehicle cast serious doubts on the prosecution case and since the star witnesses of the case are not consistent with each other on material points therefore, the appellants were wrongly convicted.
6. As against that learned counsel for State contended that there is no motive on the part of the P.Ws. To falsely implicate the appellants, hence the conviction and sentence recorded by learned trial Court is not open to any interference as the same is based on proper appraisal of evidence.
' We have heard learned counsel for the parties and gone through the record with their able assistance.
7. The prosecution in support of its case has got examined as many as 6 P.Ws. Since P.Ws. 3, 4 and 6 being formal in nature need no discussion. Aurangzeb, A.S.-I. Who is the complainant of the case has been examined through commission as P.W.5. He has stated about the occurrence by narrating facts leading to the fencing of road, emerging of the vehicle, its chase by the police party and finally its seizure. Again he has stated in respect of the recovery of contraband from the secret cavities of the car, cross-firing between the parties, separation of samples for the purpose of FSL, drafting of the application for its sending to the Chemical Examiner, preparation of recovery memo and drafting of murasila. Exh.P.W.2/1 is the recovery memo and Muhammad Jalal and Noorul.
Bashar are stated to be its marginal witnesses. Muhammad Jalal has been examined by the prosecution as P.W.2 and he has stated in support of the version of the complainant. This P.W. Has admitted his signature on the recovery memo Exh.P.W.2/1 to be correct. Janab Dad Khan, SI has been examined as P.W.1. He has conducted post occurrence investigation in the present case. He has recorded the statements of P.Ws. Under section 161, Cr.P.C., produced the accused in the Court of Illaqa Magistrate, also initiated proceedings against the absconding co-accused under sections 204 and 87, Cr.P.C. And handed over the same to the DFC concerned for execution. He also placed on file FSL report and Fire Arm Expert report as Exh.PZ and Exh.PZ/1, respectively.
8. It appears from the F.I.R. Exh.PA that in this case the occurrence took place on 13-4-2011 at about 1345 hrs while the report has been lodged on the same day at 1530 hrs. Aurangzeb, A.S.-I. To. Police Station Pishtakhara is the complainant of the instant case. He has also conducted the preliminary investigation in the case in hand. Application as P.W.4/1 is available on record and perusal of the same would show that on the basis of the said application, the samples were stated to have been sent to FSL. The said application has been drafted on 13-4-2011 and on the other hand as is evid'ent from the report of FSL as Exh.PZ, the same has been received in the laboratory on 5-5-2011 and thus, on the face of it there is a delay of about 26 days in sending the samples to FSL. When confronted with the situation, the learned State counsel was not in a position to controvert the said fact.
9. Again it is in the cross-examination of P.W.1 Janab Dad Khan, S.-I. That he does not know as to when and through whom the samples were sent to the FSL. He has also made it clear that he has not recorded the statement of Moharrir concerned regarding the receipt of the samples and its safe custody. In the report of FSL, the name of one Imran, A.S.-I. Has been figured but he has not been examined by the prosecution.
10. It is on record that when the vehicle was signalled by the raiding party, it did not stop and instead the driver speeded up the same by trying to flee away. During the chase, cross-firing took place between the parties and resultantly the inmates of the car sitting in its rear seat, who are female accused, were injured. Their Medico-legal Report is available on record and perusal of the same would show that one of the accused has been injured on her shoulder whereas the other received injury on her buttock. As against this, there is nothing on record, which could show that the car in which they were travelling was also hit or for that matter having any bullet marks.
11. The location and injuries on the persons of the female accused and absence of bullet marks on the car in which they were travelling is beyond our comprehension. It is in the evidence that as a result of the chase by the police party, the car was brought to halt near Achini Chowk and on its seizure the absconding co-accused succeeded in fleeing away from the spot. On the other hand, accused Shahid remained seated in the car and the question arises as to why he did not flee or attempted to decamp and this fact gives yet another jolt to the prosecution case.
12. Keeping in view the above facts and circumstances, the learned trial Court has failed to consider the aforestated lacuna in the prosecution case, therefore, the conviction and sentence recorded by it through the impugned judgment is not sustainable in law.
' As a corollary to the above, this and the connected appeal are allowed. The conviction and sentence of the appellants is set aside. They are acquitted of the charge levelled against them and be set at liberty forthwith, if not required in any other case.
' The vehicle in question in the circumstances be returned to its lawful owner.