' Mrs. Irshad Qaisar, J.--Through this consolidated judgment we intend to dispose of two connected criminal appeals, because they are the out come of the FIR No, 1163 dated 15.11.2011 P.S Chamkani and the judgment dated 29.04.2013. Particulars of the same are mentioned below: "Jail Cr. Appeal No, 230-P/2013 titled Javaid versus The State".
"Cr. Appeal No, 235-P/2013 Mairaj versus The State."
2. Appellants filed the present appeals under Section 48 of Control of Narcotics Substances Act, 1997 r/w Section 410, Cr.P.C. Against the judgment and order dated 29.04.2013 passed by learned Additional Sessions Judge/JSC, Peshawar w!-:ereby appellants were convicted and sentenced under Section 9-C Control of Narcotics Substances Act, 1997, to imprisonment foi life and to pay fine of Rs, 20,000/- (each) and in default of payment of fine, they shall undergo further SI for six
(06) months, in case registered vide F.I.R. No, 1163 dated 15.11.2011 under Section 9-C C.N.S.A, Police Station Chamkani, Peshawar. The benefit of Section 382-B, Cr.P.C. Was extended co the appellants.
2-A. Brief but relevant facts of the case are that Police party received spy information that huge quantity of narcotics would be smuggled through truck bearing Registration No K-2310 Peshawar.
On the basis of this information Police laid down Nakabandi at Tarnab Farm. In the meanwhile, the said truck coming from Peshawar side was stopped which was loaded with chips boards. Three persons were seated therein. On query the driver disclosed his name as Mairaj while conductor disclosed his name as Javaid Khan whereas third one disclosed his name as Jan Said. The truck was thoroughly searched which led to the recovery of 09 packets of opium and 09 packets of charas garda and huge quantity of foreign made medicines. Recovered contraband and foreign made medicines including the truck were taken into possession through recovery memo, and appellants and acquitted accused Jan Said were handcuffed, and they were booked for the commission of offence. On the completion of essential investigation, complete challan was put in Court against arrested accused as well as against one Fawad. Since Fawad did not join investigation and remained absconder; therefore, proceedings under Section 512, Cr.P.C. Were initiated against him. On appearance of present appellant and acquitted accused and after fulfillment of provisions of Section 265-C. Cr.P.C. Formal charge was framed against the accused to which they did not plead guilty and claimed trial. Trial commenced. In support of its case prosecution produced five witnesses. After closing of prosecution evidence statement of accused were also recorded under Section 342, Cr.P.C. Wherein they claimed their innocence and denied the allegations of the prosecution. Appellants admitted their status of driver and helper of truck No, K-2310 Peshawar, but they denied their presence in the truck at the time of seizing the same by Police officials. However they neither produced any defence nor examined themselves on oath. The learned trial Court, on conclusion of the regular trial against the accused found the appellants guilty and sentenced them as noted above in Para No 1 of the judgment. The third person Jan Said was acquitted while the absconding accused Fawad was declared as P.O. Hence the instant appeal.
3. Arguments heard and record perused.
4. The charge against present appellants and acquitted accused are that on 15.11.2011 at 1100 hours the local Police of P S Chamkuni intercepted truck bearing Registration No, K-2310 Peshawar loaded with chip boards which was under their control as driver and helper and they were present in the truck when during its search the local Police recovered 9 K1100 ams of opium and 9 Kilograms of charas garda on the roof top of the said truck.
5. To prove its case, the prosecution produced five witnesses as PW-1 to PW-5 i,e,:--
(i) PW-1 Shaheen Ullah SI.
(ii) PW-2 Bashir Dad, Inspector.
(iii) PW-3 Wasim Ullah PHC.
(iv) PW-4 Hassan Gul SI.
(v) PW-5 Nisar Muhammad 2355.
During their evidence they also exhibited certain documentary evidence in the shape of Murasila, recovery memo, application to Forensic Science Laboratory and the report of Forensic Science Laboratory.
6. Before this Court dilates upon the evidence produced by the prosecution and the finding recorded thereon by the trial. Court, it would be pertinent to appreciate that Control of Narcotics Substances Act, 1997 is a special law, which the legislature has enacted mainly to curb the menace of narcotics, which has been a cancer, in our country and thus has provided therein special provisions to achieve the said end. One of the main striking feature provided under Section 29 of Control of Narcotics Substances Act, 1997 which is different from the general principles of safe administration of criminal justice is that onus to prove the guilt is on the accused and the legislature has cast a presumption in favor of the prosecution, which has to be rebutted by the accused to prove his innocence. But now a principle has been settled by the apex Court that prosecution cannot be totally absolved of its obligation and duty of initially establishing a prima facie case of recovery of contraband from the accused and only fter the said initial burden is discharged by the prosecution then the onus would be shifted upon the accused to prove its innocence. In this regard guidance is sought in case "Muhammad Imran's case (2011 SCM R 1954) wherein the true purports of Section 29 of Control of Narcotics Substances Act, 1997 has been discussed. Reference may also be made to case. Kashif Amir versus State (PLD 2010 SC 1052) and Muhammad Noor and others versus State (2010 SCM R 927) wherein it is held that: "the initial burden to prove the offence and recovery of narcotic substance from the accused person is always on the prosecution and once the prosecution has discharged the onus to the satisfaction of the Court is only then that the onus shifts to the accused person to establish falsity of the prosecution's allegation against him".
' It is also observed by the apex Court that: "the initial onus on the prosecution in such cases includes the onus to prove that the entire substance allegedly recovered is in fact narcotics substance and such onus can be discharged by the prosecution only if the samples of the recovered substance sent to chemical examiner for analysis are representative simples of the entire quantity of the recovered substances.."
7. Now keeping in view the above principle in mind it is to be seen when the prosecution has been able to discharge its primary duly of proving the guilt of appellants/accused beyond any shadow of doubt.
8. From the careful perusal of record it reveals that the occurrence has not taken place in the mode and manner as disclosed by the prosecution. According to the contents of Murasila/story of prosecution the occurrence had taken place at 11:00 am on 15.11.2011. It means that the truck was allegedly intercepted at 11:00 am while the report was made on 18:15 hours and the case was registered on 18:45 hours. Now it is to be seen whether PWs have been able to explain the delay of more than 8 hours. Seizing officer Bashir Dad Khan was examined as PW-2. In his examination in chief he has given the date i.e, 13.11.2011 but has not given the time of interception. He simply stated on the basis of information they laid Nakabandi when in the mean while from Peshawar side- the truck loaded with chip board came which was signaled to stop. On search of the truck he recovered from the roof of the truck 9 packet opium, 9 packet chars garda total 18 Kilograms. He has given the detail of recovery and preparation of sample but has not uttered a single word about the time consumed during this proceeding. In his cross-examination he stated that: "They started Nakabandi at 10.30 am, ,the occurrence took place at 11:00 am and he remained at the spot for about seven hours."
' He admitted: "I cannot specify the exact time which consumed in preparation of parcels."
9. Seizing officer failed to explain the delay. This delay cast further doubt in the story of prosecution when the material witnesses have given different versions about the time of occurrence and place of recovery. PW-3 Wasim Ullah who is marginal witness of the recovery memo. Has negated the time of occurrence as alleged by seizing officer. He admitted: "The occurrence took place after sunset near about night darkness."
' He also denied the search and recovery at the spot and admitted: "The truck in question was brought to the P.S instead of search in the PP for recovery. The truck was offloaded in the P.S by us as well as through laborers who were called by complainant to the PS. ...
The I.0 Shaheen Ullah was also alongwith me to the P.S with the truck in question before recovery."
' He also admitted that: "The recovery memo. Was signed by him at P.S before recording of my statement."
' Shaheen Ullah who had conducted the investigation of the case was examined as PW-1. He admitted: "When I reached to the spot the accused, the case property and the truck were not present at the spot. The complainant was not present at the spot at that time. After 5 minutes of my arrival to the spot the complainant reached to the spot. I remained at the spot for about 3 and half to 4 hours.
When I reached the spot it was dark. When I was preparing the site-plan it was dark."
' He further admitted: "I had not inspected the vehicle, case property in the Police station."
' While negating this stance, of I.O, seizing officer stated: "I remained on the spot till the arrival of the I.O." He further admitted: "If the I.0 disclosed before this Court in his statement that when he came to the spot, I was called by him on the spot and was not present on the spot at the time of his arrival, then my statement would be false. Likewise if the I.0 stated in his statement recorded by Court that during inspection I was not present in the spot at the time of his arrival to the spot then my statement would be false.. . . If the I.0 stated in his statement that when he was preparing the site-plan it was dark, my statement would be wrong."
10. When both the statements of LO and seizing officer are put in juxta-position, material contradiction are found in the statements of both the witnesses and the question that who is telling a lie. Seizing officer himself admitted that if contradictions are found in their statement then his statement has to be considered as wrong. It means that he himself admitted that he is not truthful witness. In such view of the matter no reliance can be placed to the statement of the seizing officer, star witness, when his statement is also found in contradiction with the witnesses of recovery memo. On the point of recovery and occurrence. These are the material contradiction which cannot be ignored.
11. One of the admitted facts of the case are that the recovery was not effected from the immediate possession of accused. It was recovered from the top roof of the truck. The I.0 had not uttered a single word in respect of the fact that they had conscious knowledge about the presence of narcotics in the truck. The prosecution was unable to point out any piece of incriminating evidence against the driver and helper of the truck to saddle them with the knowledge that they were privy to the commission of the subject crime. Nowhere in the FIR, it had been mentioned that recovered narcotics was in the joint possession of the driver and helper of the truck, nor in the charge sheet they were saddled with joint possession of narcotics. It is also admitted fact that the owner of the truck had joint the investigation and as I.0 admitted that he had recorded his statement but he has C neither been cited as witness nor he was charged as accused for the reason best known to the I.O. It is also on record that on the basis of same evidence third person has been acquitted.
12. One of the most material piece of evidence of prosecution is the report of Forensic Science Laboratory Ex.PZ, vide which the laboratory received 18 parcel marked as 1 to 9, 10 to 18 (each bearing 3 seals in the marks of Ml from FC and after analyses charas was found in Parcel Nos. 1 to 9.And opium was found in Parcel Nos. 10 to 18.
' Now it is to-be seen whether the report Ex.PZ was in respect of the material allegedly recovered from the truck in possession of appellants. PW-2 seizing officer Bashir Dad stated that he drafted an on for Forensic Science Laboratory Ex.PW-2/2 for sending the sample of contraband to Forensic Science Laboratory and sample had been taken from each and every packet of recovered substances. While rebutting the contention of seizing officer, PW-3 marginal witness admitted that the application Ex.PW-2/2 was drafted by the CIO namely Shaheen Ullah, but that application is not available on the file. In the case in hand not only the report submitted by Forensic Science Laboratory was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated material to the office of the Chemical Examiner has also not been established by the prosecution. It is not disputed that the I.0 appearing before the trial Court had failed to even mention the name of the Police official who had taken the sample to the office of Chemical Examiner and admittedly no such Police official had been produced before trial Court to depose about safe custody of the sample entrusted to him for being deposited in the office of chemical examiner. In such view of the matter prosecution had not been able to establish that after the alleged recovery substances had safely been transmitted to the concerned office with out the same being tempered with or replaced while in transit. Even in the report the name of concerned FC was not mentioned.
13. According to the story of prosecution, charas garda (power form) was recovered from the truck.
According to the test report of F.S.L Ex.PW-3 the physical appearance of the sample Ex.P1 to 9 are brown solid. Seizing officer admitted;-- "If the laboratory receives the sample in shape of solid form then the same would not be sent by me and would also not be the sample of present case."
Seizing officer himself denied the report of F.S.L which is in respect of solid charas. It is also admitted fact that the case property has neither been produced nor exhibited during the course of recording the statement of seizing officer. However, it was produced during the course of statement of PW-3 Wasim Ullah who admitted: "The alleged charas and opium were in the shape of single slab. Both the alleged contraband produced before the Court was sealed in Parcel No,
19. One seal of monogram was affixed on the cotton of Parcel Nos.
19. If the Parcel No, 19 having less than or more than 18 packet, the same will not be the case property of the instant case."
' When at the request of defence counsel the Parcel Nos. 19 and 20 were opened in the Court and the note recorded by trial Court in such regard tended to create impression the such claim of the prosecution is not correct.
14. The accumulative effect of all the factors stated hereinabove lead one to state that the initial obligation of the prosecution to make out a case has not been carried out in the eyes of law.
15. For what has been stated above, the prosecution has failed to prove the charge against the present appellants beyond any shadow of doubt about the recovery of contraband, the benefit of which would go to the appellants. Consequently both appeals are accepted, the impugned conviction and sentence of the appellants are set aside and they are acquitted of the charges leveled against them. They shall be released forthwith if not required in any other case. CM. No, 177- P of 2013 and CM. No, 1714-P/2014 have become infructuous.
16. Above were the reasons of short order of this Court of even date.