' IKRAMULLAH KHAN, J.---Appellant Muhammad Hayat Khan was tried in case registered vide F.I.R.
No 273 dated 9-4-2011 under section 9(b), C.N.S.A. 1997, registered as Police Station Tangi. The learned trial Court vide order dated 9-6-2012 convicted and sentenced the appellant to one year's R.I. And a fine of rupees five thousand (Rs,5,000) or in default to undergo further thirty days' S.I.
Benefit of section 382-Bi Cr.P.C. Was also extended to the appellant.
2. Brief but relevant facts of the case are that on 9-4-2011 complainant Mukaram Shah Khan, ASI 'during mobile gasht received information that a person will smuggle narcotics on a large scale.
The Prang Char Tribal Territory to settled area. Nafri made barricade at Prang Ghar Road near Batto Killi and at about 7:20 hours a person appeared from Prang Ghar side who on seeing Police party tried to escape but was chased and overpowered. On search yellow shopping bag was recovered from him which contained .950 grams of charas. The accused was arrested on the spot and the case was registered against him, hence the present appeal.
3.. In order to prove its case, the prosecution examined as many as five witnesses. P.W.1 Younas Khan, Sub-Inspector Police, recorded the formal F.I.R. Against the appellant after receiving the murasila. P.W.2 Wiqas a constable was a marginal witness to the recovery memo. P.W.3 Mukaram Shah ASI is the complainant of the case who is scribe of the murasila too, took into possession the contraband and arrested the appellant on the spot and thereafter weighed the recovered charas, made parcels duly sealed on the spot he also recovered a .30 bore pistol along with 5 live cartridges from the personal possession of the appellant. Samples were taken from the recovered charas for FSL and thereafter sent to FSL. P.W.4 Tilawat Shah Khan ASI conducted the investigation of the case, prepared site plan, recorded statement of P.Ws.. Under section 161, Cr.P.C. And later on returned back to Police Station, formally arrested the appellant as he was present in Police lock-up on the same day, obtained one day custody of the appellant from the' Court concerned and recorded -the statement of appellant under section 161, Cr.P.C. This witness produced the appellant for recording of his confessional statement before the Magistrate but appellant is stated to have refused to admit his guilt, so he was sent to judicial lockup by the Magistrate- concerned. He also on permission from the concerned quarter amended section of law. The challan under section 173, Cr.P.C. Was sent against the appellant to the trial Court under section 9, C.N.S.A., 1997 instead of 3/4, P.O. By P.W.5 Ihsan Shah Khan SHO.
4. After completion of requisite formalities, the accused was sent to trial Court where he was formally charged to which he did not plead guilty.
5. On the conclusion of trial the accused/appellant was convicted and sentenced as per impugned judgment, hence the present appeal is filed by the accused/appellant.
6. It was contended by the learned counsel for the appellant/convict that the case is concocted one and the appellant is made a scapegoat in the case. He also advanced that there are glaring contradictions among statements of prosecution witnesses on the point of arrest and recovery of contraband from his possession.
7. The learned counsel also raised the ground that there is an unexplained and inordinate delay in lodging the F.I.R. Which is against the rules framed thereunder, the alleged contraband was sent to FSL after the prescribed period of 72 hours. Also stressed the point that amendment of section of law is not warranted by law, which has made the prosecution case nullity in the eyes of law as an ASI is not competent either to arrest or investigate any case under the C.N.S.A. He also stressed the arrest of the accused on the spot to be doubtful.
8. On the other hand, learned State counsel vehemently supported the case against the appellant and also supported the impugned judgment. He stressed the point that appellant has miserably failed to bring out any mala fide or ulterior motive for false implication of appellant in the case by the Police. He submitted that the case has been investigated impartially and appellant deserved the sentence as awarded by the trial Court.
9. We have gone through the record of the case with valuable assistance of learned counsel for the parties and have anxiously considered their arguments.
10. In this case,, as per statement of P.W.3 the complainant, he arrested the appellant and recovered contraband, sealed the same into parcel and also separated samples for FSL and on arrival of the I.O. P.W.4 pointed out place of occurrence and on his pointation the site plan was prepared. But from perusal of the whole statement of this P.W.3 as well as that of P.W.4 the I.O., this fact remained shrouded in mystery that who took the contraband and accused to Police Station as according to P.W.4 he took into custody the appellant for investigation when he was present in Police lock-up within the Police Station P.W.4 who is the I.O. Does not say any thing in respect of the recovered narcotics A nor he ever took formal charge of the recovered narcotics. Even P.W.3 also kept silent before the Court while deposing on both in respect of taking appellant to Police Station or that of the narcotics. This mysterious type of arrest and recovery of narcotics makes the whole case of prosecution doubtful. Moreover, when the I.O. P.W.4 arrived at the spot P.W.3 was still present there for pointation of the spot. Why the accused and contraband was not handed over to the I.O. And also the sample separated from the alleged whole bulk of narcotics. Silence of both the important and material witnesses on these two facts creates serious doubts that the occurrence has not taken place as narrated by the prosecution nor the investigation is free from reasonable doubt.
11. Apart from reasons given above, the amendment in section of law from 3/4, P.O. To 9, C.N.S.A.
Also makes the prosecution case weak on legal side too because instead of an C officer with the rank of S.I, the F.I.R., arrest and then the investigation was conducted by an ASI against the mandatory provision of law under C.N.S.A.
12. So in view of the facts and circumstances mentioned above, we accept this Criminal Appeal No, 335-P of 2012.
13. In view of the above observation, assessment and evaluation of entire evidence on record we are satisfied and without hesitation hold that prosecution has not proved its case beyond reasonable doubt, hence the appeal in hand is accepted conviction and sentence of the appellant are set aside and accused/appellant is acquitted from the charges levelled against him. As the appellant is on bail so the sureties are discharged from the obligation of their bail bonds.
14. These are the detailed reasons for our short order of the even date.