Ms. Musarrat Hilali, J.--The appellant stands convicted u/S. 9(c) CNSA by learned Sessions Judge/Judge Special Court, Chursadda vide judgment dated 4.12.2013 and sentenced to seven years rigorous imprisonment with a fine of Rs, 1,00,000/- or in default thereof to undergo six months simple imprisonment. However, benefit of Section 382-B, Cr.P.C. Was extended to him.
2. As per contents of FIR, on the eventful day at the relevant time, the complainant Khurshid Khan SI along with other police contingent was present near Post Post Sardaryab in connection with cheeking and nakabandi. In the meanwhile a motor car bearing Registration No, 803-AW VXR coming from Peshawar was signaled to stop. On inquiry, the driver disclosed his name as Muhammad Ali while the appellant was seated on the rear seat. During search of the vehicle, 13 packets containing 11700 grams chars were recovered from its secret cavities, which were seized and taken into possession. On personal search of the appellant, 3 packets of forged currency notes each packet of 1000 denomination, total 294 in number, worth Rs,2,94,000/- were recovered from side pocket of his qameez, hence the case was registered against the accused.
3. After completion of investigation, separate challan was submitted against the appellant and co- accused Muhammad Ali u/S. 9(c), CNSA and they were charge sheeted to which they did not plead guilty and claimed trial.
4. At the trial, the prosecution, in order to substantiate its case, produced 6 witnesses in all, where after statements of accused were recorded u/S. 342, Cr.P.C., wherein, they denied the charges and professed their innocence and false implication. The appellant neither opted to be examined on oath as required u/S. 340(2), Cr.P.C. Nor produced evidence in defence, however, accused Muhammad Ali wished to be examined on oath. On conclusion of the trial both the accused were convicted and sentenced to seven years RI each with a fine of Rs,1,00,000/- each or in default thereof to undergo simple imprisonment for six months each with benefit of Section 382-B, Cr.P.C.
While absconding accused Sher Khan was declared proclaimed offender and perpetual non- bailable warrant of arrest was issued against him. The appellant has questioned his conviction and sentence through the instant appeal.
5. Heard. In the instant case, the appellant Munir Khan was allegedly found seated on the rear seat while one Muhammad Ali was driving the vehicle on the eventful day at the relevant time. Search of the vehicle led to the recovery of 11700 grams chars whereas from personal possession of appellant Munir Khan 3 packets of forged currency notes each packet containing 1000 denomination, total 294 in number, worth Rs,2,94,000/-were recovered from side pocket of his kameez.
6. On reading the whole evidence, it is still not known as to where the samples remained between the dates when those were allegedly taken into possession from car and the date those were received by Forensic Science Laboratory. PW-2 Wilayat Khan, who was then posted as Inspector/C.I.O. Could not tell the date as to when samples were sent for analysis and which official had taken samples to the Laboratory. Further, the car from secret cavities of which the contraband chars stand recovered were 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. It is the case of the prosecution that at the time of alleged recovery, the co-accused Muhammad Ali was driving the car, however, the whole record is silent about recovery of any driving license from him. 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 appellant beyond reasonable doubt, hence the conviction and sentence of the appellant recorded by the learned trial Court is not sustainable in law, which requires reversal.
7. As far as role of co-accused Muhammad Ali is concerned, who has not filed appeal before this Court but when his case is similar to the case of the present appellant, therefore, while invoking powers u/S. 439, Cr.P.C. And following the dicta laid down reported in 1969 P.Cr.L.J. 446 (Karachi), PLJ 1975 Criminal Cases (Lahore) 348 and 2011 SCM R 1142, he is also extended benefit of doubt, hence his conviction and sentence is set aside. He be set free forthwith, if in jail and not required in any other case.
' For the aforementioned reasons, this appeal is allowed and the impugned judgment of conviction dated 4.12.2013 recorded by learned Sessions Judge/Judge Special Court, Charsadda is set aside and the appellant Munir Khan son of Mian Khel, charged in case FIR No, 1222 dated 25.9.2012 u/S. 9(c), CNSA at Police Station Charsadda, is acquitted of the charges levelled against him. He be set at liberty forth, if not required in any other criminal case. However, the order with regard to confiscation of the vehicle shall remain intact.
' These are the detailed reasons for our short order of even date.