1. Ishtiaq Ibrahim, J.--This criminal appeal has been preferred u/S. 410 Cr.P.C. r/w 48 CNSA 1997, by Muhammad Fayaz, appellant, against impugned judgment dated 27.08.2014, passed by learned Judge, Special Court(CNS), Peshawar, whereby the appellant involved in case FIR No, 54 dated 23.07.2011, registered u/S. 9-C CNSA, P.S. ANF, was convicted and sentenced to undergo life imprisonment with a fine of Rs, 2,00,000/- (Two lac) or in default thereof to suffer further imprisonment for one year SI whereas benefit of Section 382-B Cr.P.C. was also extended to the appellant/convict.
2. 2.According to prosecution case, during Nakabandi conducted on spy information regarding smuggling of narcotics, police intercepted Oil Tanker bearing Registration No, Z-1069 Peshawar being driven by appellant/convict who on cursory interrogation, disclosed regarding presence of narcotics in the said Tanker. On search 171 packets of heroin weighing 'one Kg each (total 171 Kg) were recovered from secret cavities of the said Tanker on the pointation of appellant.
3. Consequently, the contraband alongwith Oil Tanker were taken into custody, appellant/convict was arrested and a case vide FIR mentioned above was registered against him, who during interrogation disclosed the names of Haji Adam (now acquitted) and Sultan Muhammad (now absconding) being his companions. During personal search, CNIC, driving license in the name of appellant alongwith cash amount of Rs, 1080/- Pakistani 'currency, Rs, 50/- Afghani currency, one Nokia mobile set and photocopy of registration documents of the said Tanker were also recovered.
4. 3.After completion of investigation, complete challan against all the accused was submitted before the learned trial Court, where appellant was produced in custody while acquitted co-accused appeared on bail. Proceedings u/S. 512 Cr.P.C. were initiated against absconding co-accused Sultan Muhammad in the light of statement of SW.1 Muhammad Amin DFC recorded on 5.9.2011.
5. After framing of formal charge against appellant and acquitted co-accused Haji Adam, the case was fixed for prosecution evidence. During trial co-accused Haji Adam submitted an application u/S. 265-K Cr.P.C. for his acquittal, which after hearing learned counsel for the parties was allowed and the said Haji Adam was acquitted by learned Judge, Special Court (CNS), Peshawar from the charges levelled against him vide order dated 25.6.2012 and case was fixed for recording remaining evidence in respect of appellant. In order to prove its case against appellant/convict, the prosecution examined the following seven (07) PWs:-- ' PW.1 Syed Rahat Ali Shah AD/SHO has submitted preliminary challan Ex.PW.1/1, supplementary challan Ex.PW.1/2 against acquitted co-accused and complete challan Ex.PW.1/3 in the instant case.
6. ' Muhammad Ayub ASI (PW.2) was handed over the case property alongwith samples coupled with application to the FSL by the I.0, who kept the remaining case property in P.S. Malkhana and handed over the samples alongwith application to Arif Mehmood constable for taking the same to the FSL and acknowledgement receipt of the same was handed over to him by the said constable on his return from FSL.
7. ' Rana Sohail Khan SI was examined as PW.3, who is marginAl witness to search memo dated 1.8.2011, for arrest of co-accused Haji Adam whereby house of acquitted co-accused searched by the I.0, in his presence as well as presence of other marginal witnesses but the said accused was not found there and during search no incriminating article was recovered PW.4 Arif Mehmood FC took the sealed parcels of samples alongwith application of I.0, to the FSL coupled English docket and route permit and obtained acknowledgment receipt from the laboratory which he handed over to PW.1.
8. ' PW.5 Mushtaq Alunad SI has conducted partial investigation in the present case, who arrested acquitted co-accused Haji Adam and took into possession Pakistani and Saudi currency, Passport, Hajj Card, Mobile phone Samsung with SIM, a large size bag containing personal articles, from his possession vide memo Ex.PW.5/1 in presence of marginal witnesses. He prepared card of arrest of accused Ex.PW.5/2, interrogated the accused, recorded his statement u/S. 161 Cr.P.C.
9. ' Mumtaz Hussain Inspector was examined as PW.6, who is complainant and seizing officer in the present case. He recovered 171 Kgs heroin from the tanker being driven by appellant/convict in presence of marginal witnesses. After separation of samples from the contraband, he sealed the same into parcels while remaining quantity was also sealed into separate parcel. During that process, he took into possession personal belongings of the appellant vide memo Ex.PW.6/2 in presence of marginal witnesses. He prepared site-plan Ex.PW.6/5, drafted application for sending samples to FSL Ex.PW.6/6. He applied for warrants u/S. 204 Cr.PC, proclamation notices u/S. 87 Cr.P.C. against absconding co-accused vide application Ex.PW.6/8 and Ex.PW.6/9, and handed over the same to the DFC concerned for execution. He issued notice Ex.PW.6/10 to the registered owner of the vehicle. He received the report of FSL Ex.PW.6/7 and placed the same on file. He placed on file the destruction certificate of case property Ex.PW.6/15. After. completion of investigation, he handed over the case file to Syed Rahat Ah Shah AD for onward submission before the Court.
10. ' PW.7 Muhammad Israr FC was present on the spot along with complainant (PW.6) during the whole proceedings of the occurrence and supported the version of PW.6, by narrating the story regarding the occurrence.
11. 4.On conclusion of prosecution evidence, statement of appellant was recorded u/S. 342 Cr.PC, denying the allegations therein. However, he did not opt to be examined on oath u/S. 340(2) Cr.P.C. nor wished to produce defence evidence.
12. 5.Trial of the case culminated on the conviction and sentence of the appellant vide impugned judgment dated 27.08.2014, so he has preferred the present appeal.
13. 6.We have heard arguments of learned counsel for the appellant, AAG for the State and gone through the material available on file.
14. 7.Though allegation against the appellant/convict is that huge quantity of heroin was recovered from the secret cavities of the Tanker of the appellant but in order to prove its case against the appellant beyond any shadow of doubt, it was the bounden duty of the prosecution to produce said case property during trial for exhibition of the same in order to strengthen the prosecution version so that the case against the appellant being of capital punishment could be proved as this law, Control of Narcotics Substances Act, 1997 was enacted for awarding deterrent punishments to the persons involved in the filthy trade of narcotics in any manner. This Court is conscious of the fact that Control of Narcotics Substance Act is an exhaustive law to deal with the drug peddlers and also provides capital punishment and even the procedural provisions are very stringent. For example Section 25 of the CNSA ousts the applicability of Section 103, Cr.P.C. Section 29 of the CNSA raises adverse inference against the accused. Control of Narcotics Substance Act is a stern law where on the testimony of police officials a person can be awarded death sentence or life imprisonment in such like circumstances the prosecution is duty bound to conduct diligent, honest and flawless investigation and prosecution during trial, if any flaw or weakness which is spelt out from the record and in the opinion of the Court is sufficient to create reasonable doubts, the benefit of which is resolved in favour of accused.
15. 8.In the present case though certain prosecution witnesses (official witnesses) were produced by the local police in support of their version regarding recovery of huge quantity of narcotics from the appellant but the main thing on which the superstructure of prosecution was erected i.e, case property, was not produced during trial, which was best evidence with the prosecution against the appellant, meaning thereby that either no recovery was effected from the appellant or the prosecution was not interested in pursuing the case against the appellant.
16. 9.It is pertinent to mention that trial of appellant commenced on 5.8.2011 before the learned trial Court where after framing of formal charge on 11.1.2012, against the appellant/convict and acquitted co-accused, the case was fixed for recording evidence of prosecution for 25.1.2012 with direction for production of case property on the next date but no case property was produced on the said date. Thereafter repeatedly as per order sheets of learned trial Court, available on file the prosecution was directed to produce the case property for exhibition of the same till 25.6.2012, but no response was made from them for not producing the case property. During this period, co- accused Haji Adam filed application for his acquittal u/S. 265-K Cr.PC, which after hearing arguments of both sides was allowed by the learned trial Court thereby acquitting the co-accused from the charges levelled against him. On 12.7.2012, again direction for production of case property was issued by the learned trial Court and such process continued till 14.2.2013 but the prosecution failed to comply with the orders of the Court. No solid reason was put forward for non-production of case property and lastly on 14.2.2013, during examination of Investigation Officer, Mumtaz Hussain SI, he for the first time produced photocopies of certain certificates Ex.PW.6/15 to Ex.PW.6/18 regarding destruction of case property on 26.6.2012.
17. 10.It is very strange to observe that despite pendency of trial for about 11/2 years followed by repeated directions issued by learned trial Court, the prosecution kept mum for such a long period regarding non-production of case property and then after destruction of the case property on 26.6.2012, they did not utter any word for further 10 months, concealing the actual facts from the trial Court, which creates doubt in a prudent mind regarding recovery of alleged contraband from the possession of appellant. Had there been any recovery effected from the appellant, then the prosecution could have produced the same before the Court for exhibition or to bring the actual fact regarding destruction of case property into the notice of trial Court which they failed to do so.
18. Besides, above destructions certificates are not original rather these are photocopies, so on the basis of mere photocopies of destruction certificates, a person cannot be convicted for an offence bearing capital punishment.
19. 11.When the trial was pending in the Court, then what was the urgency for destroying the case property, the prosecution should have exhibited and thereafter destruction proceedings should have been carried out. Despite repeated directions of the Court as is evident from the record, they remained silent about this fact nor plausible explanation was forwarded by them for non- production of case property and due to which, the appellant was lying in jail for such a long period who was also kept unaware about the destruction of case property. By destroying the entire property after keeping its samples, the accused would be deprived of his right to examine the same at the time of trial, if it is done without his knowledge. Therefore, in order to safeguard his right and to hear the objections whatever available with the accused, inter alia, about weight, contents of packets, seals affixed on the packets, legal possession or a request for sending the entire property for analysis, which he might raise at the trial when the entire property is produced before the Court can be taken into consideration at the time of passing the order of destruction of the property by giving a notice to the accused person. If the Court suo motu exercises the power that it is essential to give notice not only to the accused but also to the, prosecution so that after hearing the contentions and objections, if any, by any party, the order of destruction of the property can properly be passed. Issuing of notice to the parties is an essential , requirement of the law to hear the parties as it is a well settled' principle of law that no body should be condemned unheard and no adverse order, concerning his right can be passed against any party without hearing him.
20. This rule is a rule of natural justice, which unless prohibited by wording of statute, must be read in each and every statute, as held by august apex Court in the cases of "Abdul Majeed Zafar v.
21. Governor of the Punjab 2007 SCMR' 330 and Asim Khan v. Zahir Shah 2007 SCMR 1451.
22. ' Likewise, in the case of "Ali Muhammad Vs The State" (PLD 2010 SC 623!, it was held by the august Supreme Court of Pakistan that notice should be given to the accused and prosecution before destruction of case property but in the present case no such notice has been given to the appellant. Even, the learned trial Court was kept in darkness regarding said destruction inspite of the fact that trial had commenced much before destruction of case property and if the prosecution was sincere in proving the guilt of appellant then why they remained silent for about 11/2 years. Much time was available with the investigating agency/prosecution but instead of producing case property, they straight away produced the photocopies of destruction certificates after about 10 months of its destruction proceedings, which is inadmissible under the law. First the prosecution had to produce the original certificates before the Court or in case of absence of the same, the Magistrate concerned who had carried out the destruction proceedings could have been examined before the trial Court in support of the stance of prosecution as nobody is immune under the law from appearing before the Criminal Court. Section 510 Cr.P.C. immunes only Chemical Examiner, Fire Arms Expert etc. before the trial Court and their reports are .to be considered as admissible. No efforts have been made by the prosecution to examine the concerned J Lid icial Magistrate, who had carried out the destruction proceedings. By not examining the said witness, the prosecution has withheld its best evidence, which makes the case of prosecution doubtful. It is well-settled principle of law that if a best piece of evidence is available with a party and the same is withheld by him, then it is presumed that the party has some evil motive behind it by not producing the said evidence. Even otherwise, a presumption under illustration (g) to Article 129 of Qanun-e-Shahadat Order can fairly be drawn in the matter that had he been produced he would not have supported the prosecution case.
23. 12.All these tactics regarding non-production of case property, annexing photocopies of destruction certificates and non-production of Magistrate during trial, shows that there was something wrong with the case property that is why despite repeated directions of trial Court, it was not produced for recording his statement and only photocopies of destruction certificates were produced.
24. 13.The Tanker from which the recovery of contraband was allegedly made, was also not produced before the trial Court rather it has been mentioned by the I.O., that it was shown to the defence counsel but for just decision of the matter, it was required to produce the same before the trial Court in order to confirm that actually any secret cavities were made in the Tanker or otherwise, which makes the case of appellant doubtful, the benefit of which must, go to the appellant. It is established law that for giving benefit of doubt to an accused, there need not be a number of circumstances to prove the innocence of accused; even single circumstance creating reasonable doubt is sufficient for the acquittal of an accused.
25. 14.Apart from above, it is pertinent to mention that criminal cases involving matter regarding life and death of a citizen qr of capital punishment is to be decided by carefully analyzing and scrutinizing the evidence adduced by prosecution. The time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. A conviction against accused cannot be passed unless the prosecution establishes the guilt of accused beyond reasonable doubt. A criminal Court cannot afford to deprive an accused of his life liberty without having at least a reasonable level of certainty that he was the real culprit.
26. 15.In view of what has been discussed above, we are of the view that the best evidence in the shape of recovered contraband/case property, has been spoiled nor any sincere efforts were made for establishing the guilt of appellant. The prosecution has failed to prove its case against the appellant beyond any shadow of doubt against the appellant/convict and the trial Court while awarding conviction and sentence has failed to appreciate the evidence brought on record, which requires interference by this Court. Consequently, while extending the benefit of doubt to the appellant, we set aside the conviction and sentence recorded by the learned Judge, Special Court (CNS), Peshawar vide impugned judgment dated 27.08.2014 and acquit the appellant/convict from the charges leveled against him. He is in custody, be released forthwith if not required in any other case.
27. ' The above are reasons of our short order of even date.