' Ms. Musarrat Hilali, J.--The appellant stood trial in case FIR No, 560 dated 10.7.2013 u/S. 9(c) CNSA Police Station Chamkani Peshawar and after having been found guilty was convicted and sentenced to suffer ten years RI with a fine of Rs, 50,000/- or in default thereof to undergo three months SI with benefit of Section 382-B, Cr.P.C. The judgment of conviction was handed down by learned Additional Sessions Judge-II/Judge Special Court, Peshawar on 19.11.2014.
2. The complainant Syed Naveed Jamal, Inspector Excise & Taxation alongwith other police contingent was on checking at Motorway Peshawar barricade when received information regarding smuggling of huge quantity of narcotic from tribal territory toward down country through Honda motor car bearing, Registration No LZZ0353. At the relevant time, the said vehicle emerged on the scene driven by appellant which was signaled to stop. Search of the vehicle led to the recovery of 10 KGs chars concealed in secret cavities made beneath in its trunk. Necessary samples were separated for chemical analysis while the remaining stuff was sealed into separate parcel, hence on the basis of murasila Ex.PA/1, the above noted case was registered.
3. After completion of investigation, the appellant was charge sheeted to which he did not plead guilty and claimed.
4. At the trial, in order to establish its case, the prosecution examined 5 witnesses in all thereafter statement of accused was recorded u/S. 342, Cr.P.C., wherein, he denied the persecution allegation and professed innocence. However, he neither wished to give statement on oath or to produce defence evidence within the meaning of Section 340(2), Cr.P.C. However, later on the appellant submitted an application, wherein, he took the plea that he has given some advance amount to Jamshed and Imran meant for business for profit as they were car dealers having bargain centre in the name of M/s. Jamshed Car Centre at Faqir Abad, Charsadda Road, Peshawar. The said persons used to give him profit on the amount advanced for quite some time but subsequently they avoided to pay him profit from the business and ultimately refused to pay the amount advanced as well as profit thereon, which amount accumulated to Rupees ten million. It was further allege that the complainant was on family terms with the Excise Officer, who used to pay visits to the Bargain with regard to clearance of the cars. Further, alleged that the said persons due to business dispute involved him in the instant case with the help of complainant, who arrested him on 9.7.2013 from Charsadda road soon after when he left the bargain of the above two persons after demanding outstanding amount and kept him for more than 24 hours in illegal confinement and then lodged the present case on 10.7.2013 and also deprived him from his valuables i.e, mobile set and cash amount etc and that nothing was recovered from his possession and the recovered contraband was planted against him and had falsely been implicated him in the instant matter and to this effect he was ready to take oath on Holy Quran. The trial culminated in conviction and sentence of the appellant, which is questioned in the present appeal.
5. Learned counsel for the appellant contended that prosecution has miserably failed to substantiate its case of alleged recovery of chars inasmuch as the same was never produced before the Court during trial; that there is no order of the Court or Certificate on the file showing that the contraband was destroyed after obtaining permission from the Court for the purpose.
Further contended that the entire prosecution case is based on the evidence of official witnesses, who had their own interest in getting the appellant convicted to justify their action; that the appellant is innocent and has falsely been en roped in the instant case; that the recovery was allegedly made from secret cavities of the motor car but the said vehicle was never produced before the Court during trial; that at the same time the contraband allegedly recovered was also not produced before the learned trial Court; that the appellant alleged grudge against the complainant however, it was ignored by the learned trial Court for no valid reason, thus, prayed for acquittal of appellant on the aforesaid grounds.
6. Per contract, learned State counsel contended that huge quantity of charas was recovered from secret cavities of the vehicle driven by the appellant at the relevant time; that the samples separated from the recovered contraband charas was sent to F.S.L for analysis, the result whereof is positive, thus, on the available record, the appellant being well connected with the crime was rightly convicted and sentenced.
7. Heard. In the instant case, the prosecution in order to prove its case examined 5 witnesses in all.
Of them Amjad Ali, Moharrir Investigation was examined as PW-3. In his statement in chief, he testified that Moharrir Operation handed over him Parcel No, 11 containing the contraband, CNIC of the appellant and one driving license LTV in his name along with Rs, 2,200/- cash. In his cross- examination, once again he confirmed that the case property was handed over to him. Similary, Rehmat Wali, SI PS Chamkani was examined as PW-5. This witness has also claimed that the case property i.e, the contraband & motor car was handed over to him by Lal Gul, AS'. It may be noted that the case property i.e, Parcel No, 11 containing the remaining 9 KG and 950 grams chars along with the motor car used in the commission of offence has not been produced before the learned trial Court. Neither any Court order nor any Certificate issued by it is available on the record showing that the case property was destroyed after obtaining proper permission from the Court.
The prosecution case hinges around the FSL report Exh. P-2. The prosecution has failed to establish any link between the Ex.P-2 and the appellant by producing any cogent and legally accepted evideire as to whether the samples sent to FSL were drawn from the contraband allegedly recovered from the secret cavities of the motor driven by the appellant. It may also be noted that the said report i.e, Ex.P-2 has been issued by Forensic Science Laboratory, Rawalpindi. There is no explanation on the file as to why the samples were sent to FSL Rawalpindi despite having a well equipped Laboratory at Peshawar.
8. In the case in hand, the appellant has seriously disputed the alleged recovery as well as samples taken therefrom. In his statement recorded u/S. 342, Cr.P.C., the appellant has categorically stated that the complainant was having grudge with him on account of his business dispute with a close friend of the complainant. In such like situation, the prosecution was bound to produce the entire evidence necessary to bring home the guilt of appellant beyond reasonable doubt, which exercise has not been undertaken by it, thus, on such cryptic evidence, the appellant cannot be convicted and sentenced.
9. In light of the above discussion and in view of the evidence and discrepancies referred hereinabove, particularly, in absence of concrete and cogent evidence in support of prosecution case, it is unsafe to convict the appellant. Resultant, this appeal is allowed, the impugned judgment of conviction recorded by learned Additional Sessions Judge-II, Swabi dated 27.2.2012 is set aside and the appellant is acquitted of the charges leveled against him. He be set at liberty forthwith, if not required in any other case.
' These are the detail reasons for our short order of even date.