Criminal Appeal No,173 of 2012 ' IJAZ AHMED CHAUDHRY, J.---This appeal with leave of this Court has been filed by Maula Jan appellant who had been found guilty under section 9(c) of the C.N.S. Act in case registered vide F.I.R. No,242 of 2010 at the instance of Zahoor Khan, SHO, for an incident which allegedly took place on 26-3-2010 at 18:00 hours and matter was reported on the same day at 18:30 hours with Police Station Hayatabad. A raiding party was constituted on receipt of secret information that huge quantity of Charas was being smuggled from Illaqa Ghair towards Peshawar. Appellant was driving motorcar bearing registration No,1013 BRE, whose name was subsequently found as Maula Jan. He was asked to stop the car and on search of secret cavities of the car 10 packets of charas gardah and one pistol of .30 bore were recovered. Five gram charas was taken from each packet and was separately sealed for sending it to the chemical examiner for analysis. Appellant was arrested and after conclusion report under section 173, Cr.P.C. Was submitted to the Court. Copies required under section 265-C, Cr.P.C. Were supplied to the appellant and charge was framed which was denied by the appellant and the prosecution in order to prove the case against him had produced four witnesses. Learned trial Court vide judgment dated 11-1-2011 had convicted the appellant under section 9(c) of the C.N.S. Act and sentenced him to 10 years' R.I. With fine of Rs,50,000 and in default of payment of fine he was directed to further undergo S.I. For six months'. Benefit of section 382-B, Cr.P.C. Was extended to the appellant. Case property i,e, motorcar was confiscated to the State Aggrieved of the said judgment the appellant filed Criminal Appeal No, 25 of 2011 against his conviction and sentence and Criminal Appeal No,38 of 2011 against confiscation of motorcar, before the Peshawar High Court, Peshawar and vide impugned judgment dated 1-12-2011 Criminal Appeal No,25 of 2011 has been partially allowed and his sentence has been modified from 10 years' to. 7 years' R.I. However, sentence of fine as awarded by the trial Court has been maintained, while Criminal Appeal No, 38 of 2011 has been dismissed. Against the said judgment appellant filed Criminal Petitions Nos. 17 and 18 of 2012 in which leave to appeal was granted vide order dated 17- 2-2012. Relevant portion wherefrom reads as under:-- "In the peculiar circumstances of this case the record of the case needs to be reassessed and re- evaluated so as to confirm as to whether the prosecution had indeed succeeded in proving its case against the petitioner beyond reasonable doubt or not."
2. Learned counsel for the appellant contends that there were material contradictions in the evidence; that the prosecution has miserably failed to prove the case against the appellant and in spite of that he has been convicted and sentenced which is not sustainable and that both the courts below have committed illegality by convicting the appellant, therefore, the same may be set aside and the appellant be acquitted.
3.On the other hand learned counsel appearing on behalf of the 'State has opposed this appeal on the ground that both the courts below have rightly found the appellant guilty under section 9-C of C.N.S.A. As there was sufficient evidence available on record to connect the appellant with the commission of crime and that the appellant while arguing the case at Peshawar High Court had not pressed the appeal on merits and only requested for reduction in sentence, therefore, this appeal may be dismissed.
4.We have heard arguments of the learned counsel for the parties and have gone through the evidence on record.
5. P.W.2 Fayyaz Ullah constable is the marginal witness of the recovery memo. He, during cross- examination, has shown some concessions to the defence by stating that it is not specifically mentioned that at the time of recovery accused was present; the case property was sealed with five monogram; the appellant used to park his taxi car near the mosque of the market; and the recovery memo was prepared at the police post. P.W.3 Zahoor Khan S.-I. Has conducted, raid.
During cross-examination he admitted that in the site plan presence of the accused in the motorcar is not mentioned. He also admitted that there was difference between charas gardah and charas pukhta. Charas gardah was of brownish colour while charas pukhta was in black colour. He also admitted that charas gardah was not in powder form. He also admitted that at the time of arrival of investigating staff the accused was not present and had already sent to the police station. During cross-examination he also admitted that he had sent the parcel of case property Exh.P-1. Which had three seals and did not contain five seals. The parcel was examined in his presence and the material was, found in 10 packets, seven packets of large size in white and blue colour and three packets were of red colour in small size. He also admitted that according to the report of the chemical examiner Exh.PZ the charas allegedly recovered was brownish solid and the said brownish solid charas was not found in the packets when these packets were opened in the Court. Similarly P.W.4 Zahir Shah, S.I. Also admitted that he had perused the report of Forensic Science Laboratory which did not specifically mention that the charas was pukhta or gardah. He has also stated that he was the investigating officer but the accused was not handed over to him on the spot and the accused and the case property had already been sent to the Police Station along with murasila.
6. After perusal of evidence on record we find that case of the prosecution is not proved beyond any shadow of doubt against the appellant. The prosecution has failed to discharge the duty as the accused along with the case property was sent to the police station before arrival of I.O. At the spot and parcel opened at the time of cross-examination of the witnesses were found of different sizes whereas the case of the prosecution was that all the packets were of same size which were ten in number and out of each packet five gram was separated and was sent to the chemical examiner separately. In such circumstances we find that the appellant has succeeded in making out a case for his acquittal, hence this appeal is accepted and the judgments of both the courts below are set aside. The appellant Maula Jan son of Aqal Jan be set at liberty forthwith if not required in any other case.
' Criminal Appeal No,1 74 of 2012 ' This appeal has been filed against confiscation of motorcar bearing registration No,1013 BRE which allegedly is owned by the appellant. As we have accepted Criminal Appeal No,173 of 2012 and have acquitted the appellant from the charge under section 9(c), C.N.S.A. And by declaring that the prosecution has not proved the case against the appellant beyond any shadow of doubt, hence, the order for confiscation of car cannot be maintained. This appeal is also accepted and the order of confiscation of motorcar bearing registration No,I013 BRE is set aside. The appellant shall be handed over the motorcar immediately.