Ms. Musarrat Hilali, J.--This judgment shall also decide Crl. A. 70-P of 2013 not because both these appeals arise from common judgment of learned Additional Sessions Judge-VII/Judge Special Court, Peshawar dated 24.7.2012 but also being outcome of same FIR.
2. Ap pellants Fayaz Shah in the instant appeal and Fazli Subhan in the connected matter faced trial in case FIR No, 501 dated 10.12.2012 Police Station Sarband, Peshawar and at the conclusion were convicted and sentenced to life imprisonment with a fine of Rs,200,000/- each or in default thereof to suffer one year RI each, however, benefit of Section 382-B, Cr.P.C. Was extended to them.
3. There was information to the local police regarding smuggling of narcotics from tribal area to down country through motor car bearing Registration No, 3551-LOM. Believing the same to be true, complainant Ejazullah, ASI alongwith other police contingent made nakabandi when in the meanwhile the said vehicle emerged on the scene, which was signaled to stop. On inquiry, the driver disclosed his name as Fayaz Shah while the front seat was occupied by Fazli Subhan. Search of the vehicle led to the recovery of 80 packets chars garda from secret cavities made inside the digi and 30 packets containing chars garda from secret cavities specially designed in the floor of the front and driver seat. In all 110 KGs of chars garda were recovered from the vehicle in question.
Necessary samples were separated for examination by FSL while the remaining contraband was sealed into another parcel, hence the case was registered against the accused.
4. After completion of investigation, the appellants were charge sheeted to which they did not plead guilty and claimed trial.
5. At the trial, in order to establish its case against the appellants, the prosecution examined 5 PWs in all, whereafter statements of accused was recorded u/S. 342, Cr.P.C., wherein, they denied the prosecution allegations and professed innocence. Appellant Fayaz Shah also recorded his statement u/S. 340, Cr.P.C. And produced Siddique Rehman as defence witness on 22.5.2012.
However, the said DW-1 refused to stand in the witness box to the test of cross examination on the pretext of some alleged threats extended to him at the hands of police, therefore, his examination- in-chief already recorded in the Court was also discarded. The appellant in the connected appeal neither wished to be examined on oath or produce evidence in his defence. The trial culminated in conviction and sentence of the appellants, as mentioned above, which is under challenge in the instant as well as connected appeal.
6. Heard. In the case in hand, on the eventful day at the relevant time the appellant Fayaz Shah was allegedly driving the vehicle while Fazli Subhan (appellant in the connected appeal) was seated on the front seat. Search of the vehicle led to the recovery of 110 KGs chars garda from secret cavities made inside digi as well as in the floor of the front and driver seat.
7. It is noted that the alleged recovery was effected on 10.12.2012 while the samples thereof were received by Forensic Science Laboratory on 14.1.2011 after 35 days. No explanation was furnished by the prosecution witnesses as to why the samples were not sent to the Forensic Science Laboratory on the same day. There is no evidence to the effect that during the said 35 days where and with whom the samples were lying, therefore, in the circumstances the possibility of tampering with the same cannot be ruled out. Had any explanation been furnished, the matter would have been decided in the light thereof but in absence the Court cannot coin any of its own. Further, the car from secret cavities of which the contraband chars was recovered was never produced before the Court to strengthen the prosecution version whether the cavities made therein could contain such a huge quantity of narcotics or otherwise. For conviction of accused, the prosecution has to prove its case through convincing and reliable evidence, which is missing in the instant matter. The lacunas noted above lead us to the conclusion that the prosecution has failed to substantiate its case against the appellants beyond reasonable doubt, hence the conviction and sentence of the appellants recorded by the learned trial Court is not sustainable in law on account of infirmity in the prosecution version, which makes the case doubtful, hence the impugned judgment requires reversal.
8. For the aforementioned reasons, both these appeals are allowed. The conviction and sentence of appellants Fayaz Shah son of Said Shah r/a Bachano Garhi Bahadur Kalay, Peshawar and Fazli Subhan son of Latif Khan r/o Autozai Palosi, Peshawar recorded by learned. Additional Sessions Judge-VII/Judge Special Court, Peshawar dated 24.7.2012 is set aside. The appellants are acquitted of the charges leveled against them and they be set at liberty forthwith, if not required in any other case.
' These are the detailed reasons for our short order of even date.
(A.S) Appeal was allowed.