' Waqar Ahmed Seth, J.--On receipt of an inkling that a huge quantity of narcotics would be smuggled from tribal territory to Punjab through a Datsun Pick-up Bearing No. B-5412-Peshawar, Ghafirullah, SI, along with other Police officials, fenced the road near Charsadda Interchange that a Datsun Pick-up bearing the same number, coming from Charsadda side, was stopped. Shah Alam, appellant, in Crl. A. No. 570/2012, was driving the vehicle,. While Shahbaz, appellant, in Crl. A. No. 565/2012, was sitting on its front seat. The vehicle was subjected to a thorough search, which led to the recovery of 28 packets of heroin weighing 28 K.Gs. A case under Section 9(c) of the CNSA was registered against the appellants, vide FIR No. 979 dated 10.12.2011 in Police Station Prang Charsadda.
2. After the arrest of the appellants and completion of the investigation, they were sent to the Court of the learned Judge, Special Court, for trial, who on its conclusion convicted and sentenced each one of them to imprisonment for life with a fine of Rs. 1,00,000/- each or in default in payment of fine to undergo six months SI with the benefit of Section 382-B, Cr.P.C., vide judgment dated 21.11.2012, hence these criminal appeals, which we propose to dispose of by this single judgment.
3. Learned counsel appearing on behalf of the appellants contended that when nothing was recovered from the personal possession of the appellants, they cannot be linked with the incriminating substance recovered from the vehicle. The learned counsel next submitted that where the evidence produced by the Prosecution does not connect the appellants with the commission of the offence, they are charged with, the convictions and sentences awarded to them being based on no evidence, cannot be maintained. The learned counsel next submitted that failure on the part of the Prosecution to produce the case property in the trial Court would militate against the veracity of the Prosecution version and that the evidence bristling with ambiguity is not worthy of reliance. The learned counsel next added that unconformable contradictions in the statements of the P.Ws. Lead to the inference that the occurrence has not taken place in the manner as described by the Prosecution. The learned counsel while concluding his arguments, in the alternative, asked for placing the accused, appellant in Crl. Appeal No. 565/2012, on probation by referring to Section 11 of the Juvenile Justice System Ordinance, 2000.
4. As against that, the learned counsel appearing on behalf of the State argued that the charge against the appellants stands proved, as all the witnesses examined in the Court are in agreement with each other as far as the fact of recovery goes, therefore, the charge stands proved, especially when there is nothing on the record to show that any of the P.Ws. Has any motive to falsely implicate the appellants.
5. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
6. It is not disputed that the Dadsun had met an accident, which was driven by its driver, namely, Shah Alam. It is also not disputed that a young boy, namely, Shahbaz, appellant in Crl. A. No. 565/2012, was sitting on its front seat. It is also in the evidence on record that the matter of accident was patched up between the parties, but when the vehicle was tried to be taken, the vehicle was taken to the Police Station and the contraband substance was shown there to have been recovered from the secret cavities of the vehicle. The question arises whether the appellants could be saddled with conscious knowledge of the incriminating substance recovered from the vehicle, especially when there are contradictions in the statements of the P.Ws. Casting doubt on their veracity. According to P.W.1, he with his own hand opened the secret cavity and stepny without help of any mechanic, while according to PW-2, the cavity and Stephen were opened through mechanic summoned by the complainant. Similarly PW-1, in his cross-examination stated that when he laced with such recovery, it is not necessary to make the said gunmen as marginal witnesses of the recovery, while PW-2 in his cross-examination stated that we (PW--s 2 and 3) are at the disposal of PW-1/complainant for twenty four hours and whenever any occurrence took place, we both (PW--s 2 and 3) turned out to be the marginal witnesses of the recovery of the said occurrence. Apart from this, PW-1 stated in his cross-examination that initially inadvertently he has written the figures as 29.972 Kg but on becoming conscious of the same, he has later on corrected the figures as 27.972 KG, yet he has not put his initial on the correction made on the parcel, so as to provide justification for the safe custody of the parcel. No doubt, the FSL report is available on the file, but the same has not yet been signed by, the Assistant Chemical Examiner, who had supervised the test of the samples and was supposed to sign the same. Likewise, even no location of secret cavities found in the Datsun Pick up, has been given either in the recovery memo. Or in the murasila, so as to systematic the process of the investigation. It is clear from the statement of Shah Alam, that he is the owner of the vehicle and Hassan Gul is the driver of the vehicle, who used the same for poultry. PW-3 who was examined as marginal witness, stated that when the driver went to Charsadda for recovery of outstanding amount, after short time shah Alam was telephonic ally informed that accident took place in the way and the vehicle was taken into custody by the local police of Police Station Prang, while he appellants were present at Bacha Khan Chauk, Peshawar and thereafter they rushed to Charsadda in order to patch up the matter. Correct that Shah Alam was the owner of the vehicle but at the relevant time, he along with Shahbaz, accused in the connected appeal, was present at Peshawar but nothing incriminating was recovered at their iristance nor anything was found during the investigation as could point to their complicity in the crime. There is also absolutely nothing on the record to show that the appellants were in conscious knowledge of the incriminating substance contained in the secret cavities and stepny of the vehicle. Non-production of the case property in the circumstances would also negate the Prosecution version. No doubt, one of the appellants was driver of the vehicle and the other was sitting on the front seat but we could not come across even a speck of evidence as could point to their conscious knowledge of the incriminating substance. We in the circumstances of the case hold that the charge against the appellants has not been proved beyond any shadow of reasonable doubt. We, therefore, by extending the benefit of doubt to the appellants, allow this and the connected appeal, set aside the convictions and sentences recorded by the learned trial Court and acquit them of the charge. They be set free forthwith, if not required in any other case. This is the detailed judgment furnishing reasons to our short order of today's date.