' MRS. IRSHAD QAISAR, J.--- Appellant (State) through Advocate General, KPK filed the present appeal under section 417, Cr.P.C. against the judgment and order dated 14-2-2012 passed by learned ASJ-III, Special Judge Swabi whereby respondent Amir Rehman was acquitted.
2. Brief but relevant facts as per contents of the case FIR No. 815 dated 13-6-2011 under section 9 CNSA, Police Station Swabi District Swabi are that on 13-6-2011 the complainant Ijaz Khan S.I. along with other Police officials had put barricade on Mardan Swabi Road near Salim Khan Shakh when at about 15:20 hours a motor car bearing registration Peshawar B-4495 was sighted coming from Mardan side which was stopped for the purpose of checking. During the course of search five packets of charas each weighing 1000 gram total 5 KGs was found lying in between the rear seat and fuel tank. He separated five grams from each packet and prepared five separate sealed parcels for analyses while the remaining charas weighing 4975 was sealed in another parcel.
These were taken into possession through recovery memo Ex. PC. The accused disclosed his name Amir Rehman. He was arrested and murasila Ex PA/1 for registration of case was drafted and on the basis of which present case FIR Exh.1-A was registered. After completion of investigation the case was referred to the trial Court who after the conclusion of the trial acquitted the accused vide order dated 14-2-2012 on the ground that prosecution failed to establish its case against accused/respondent while there is great force in the version of accused/respondent.
3. Feeling aggrieved, appellant filed the present appeal on number of grounds inter alia that it is based on non-reading and misreading of evidence: That respondent was apprehended red handed on the spot and huge quantity of charas was recovered from the car which was under his control being its driver. That sample was separated from each packet and sent to FSL, the report of which is in positive. There is nothing on record to show that PWs have .any ill will or grudge to falsely implicate the accused. That there are no material contradiction in the statements of PWs.
Prosecution has been able to prove its case through direct and circumstantial evidence.
4. Arguments heard and record perused with the assistance of learned counsel for the petitioner.
5. The reasons prevailing with the learned ASJ/Special Court for acquitting the respondent were that, from the very first day of his arrest accused denied the charge and contended that he is innocent in and has falsely been roped in the case. That I.O. had arrested him for ulterior motive and had not recorded the true facts of the case. In order to fetch out the actual facts accused submitted an application to Judicial Magistrate and ultimately his statement under section 164, Cr.P.C. was recorded wherein he had given the detail of occurrence. That during trial, he also examined himself on oath under section 340(2), Cr.P.C. That I.O. did not disclose the actual story and was trying to conceal the real fact and thus the mala fide against the accused is reflected. It is also observed by trial Court that being I.O. of the case he is supposed to know each and every aspect of the case and there is an assumption that he was in the knowledge of such fact, if not he is not even fit to be the investigation officer of the case. Trial Court also pointed out other discrepancies in the case of prosecution.
6. Keeping in view the above and other comprehensive reasoning of the learned trial Court, we surveyed the entire evidence on record to assess as to whether the trial Court's judgment of acquittal suffered from in applicability of mind, unsoundness or non appraisal of evidence and flimsiness of argumentation.
7. Learned trial Court pointed out material contradiction in the statement of P.Ws. and irregularities which creates dent in the case of prosecution. The case was registered on 13-6-2011 while the samples were sent to FSL on 2-7-2011. The delay has not been explained. The I.O., has not given any explanation regarding the safe custody of the contraband, during the intervening period of sending the sample to the FSL on 13-6-2011 and received them on 2-7-2011. This delay creates doubt and apprehension of tampering with the sample.
Trial Court has discarded the direct and circumstantial evidence produced by the prosecution and accepted the contention of accused that he is innocent and has. wrongly been charged in the case. It is settled principle of law that when two explanation are equally possible in a given situation the one in favour of accused should normally be accepted. Reference is made to 2007 SCMR 605.
8. Bare reading of the statement of PW-2 seizing officer bring out the material contradiction in his story regarding the occurrence when it is put in juxta position with the evidence of recovery witnesses of recovery memo. PW-2 seizing officer admitted to have laid barricade on the spot at 12 noon and remained on the spot for about 4/4-1/2 hours while PW-3 marginal witness of recovery memo admitted that recovery was effected at 3:00 p.m. while they reached to the spot 20/30 minutes prior to the occurrence. There are also contradiction with regard to the weighment of contraband. A thorough scrutinizing and scanning of the statement of P.Ws. made the mode and manner of the recovery of contraband doubtful. The case of prosecution was pregnant with major contradiction and dishonest omission. The seizing officer as well as I.O. was duty bound to dig out the real facts. But he failed, thus the benefit of doubt has rightly be given to accused by the trial Court. Reference in this respect is given to 2009 YLR Pesh: 2169.
9. Keeping in view the above circumstances and facts of the case finding of the trial Court could not be said to be the result of inapplicability of minds, non-reading and misreading, misinterpretation, misapplication of mind and evidence. His observation and grounds for acquittal of respondents were recorded on the basis of sound and cogent analyses and appreciation of the evidentiary principle of criminal jurisprudence.
10. For conversion of judgment of acquittal in to a conviction judgment, the principles have long been settled that accused after his acquittal from the criminal charges enjoys double presumption of innocence, one before the trial of the accused and second after his acquittal Courts while dealing with the appeal; therefore, are bound to examine whether Courts below had not ignored any evidence or had discarded any evidence for the reason non-recognized by law. Reference is given to 2004 SCMR 6249, 2002 SCMR 713, 2003 YLR 1731, 2004 SCMR 209. In judgment reported in PLD 1979 SC 956 in case "Inayat Ullah v. The State" the apex Court held "Superior Courts have consistently laid down certain defined and fundamental principles for regulating their jurisdiction in case of acquittal appeal". In the case of Sheo Swarup and others v. King Emperor" AIR 1934 Privy Council 227(2), it was held that ".... the High Court should and will always give proper weight and consideration to such matters as:-
(i) The views of the trial Judge as to the credibility of the witnesses;
(ii) The presumption of innocence in favour of the accused, as presumption certainly not weakened by the fact that he has been acquitted at his trial;
(iii) The right of the accused to the benefit of any doubt; and (iv)The slowness of an appellate Court is disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses " .
11. Keeping in view of the above circumstances of the case we hold that there is no force in the instant appeal, hence dismissed in LIMINE.