Syed Afsar Shah, J.--On 7.8.2015 Abdul Riaz, ASI to Police Station, Aza Khel, Nowshera, alongwith police nafri was on gusht of the Illaqa, when in the meanwhile, a pedestrian, who was in suspicious condition was stopped. He was having a shopping bag in his hand. The search of the bag led to the recovery of chars pukhta, weighing 3220 grams. Thereafter, the Seizing Officer separated five grams from the entire stuff, sealed into parcel whereas the remaining quantity of chars was sealed into another parcel. On quarry, the person disclosed his name as Nisar. He (Seizing Officer) then prepared the recovery memo. As Ex.PW-4/1 and recorded murasilla as Ex.PW-4/4 which was dispatched to Police Station, Aza Khel, where on the basis of which FIR No, 203 dated 7.8.2015 was registered against the accused under Section 9(c), CNSA.
2. Investigation was started in the case by the Local Police of Police Station, Aza Khel, and on its completion, challan was submitted against the accused-appellant to the Court of learned Additional Sessions Judge-II/Judge, Special Court, Nowshera, where at the commencement of trial, the prosecution produced as many as five witnesses whose statements were recorded and placed on file. On close of the prosecution evidence, accused-appellant was examined under Section 342, Cr.P.C., wherein he denied the charges and professed innocence.
3. On conclusion of trial, the learned trial Court convicted the accused under Section 9(c) CNSA and sentenced him to nine years RI with a fine of Rs, 1,00,000/- or in default thereof to undergo six months SI further. Benefit of Section 382 (b), Cr.P.C. Was also extended to the accused-appellant.
4. Through the instant criminal appeal filed under Section 48 CNSA, the appellant has questioned the legality and validity of the impugned judgment.
5. Arguments heard and record perused.
6. In this case as stated earlier Abdur Raiz, ASI to Police Station, Aza khel, Nowshehra, alongwith police nafri was on gusht of the Illaqa. When a pedestrian was found in suspicious condition. He was stopped and from the bag, which he was having in his hand, chars pukhta, weighing 3220 grams, which were in the shape of pieces, were recovered.
Appearing as PW-5, Nowsher Zaman, FC, who was present with the Seizing Officer at the time of recovery, has deposed in his cross-examination that he could not say "as to in how many pieces the recovered substance was". The Seizing Officer has been examined as PW-4. He has stated about the preliminary investigation which he conducted at the spot. During cross-examination he deposed that he has not mentioned the number of pieces/slabs of the recovered chars. He has admitted that he has not counted the pieces. As against that, it is on record that after amalgamation of the pieces, the Seizing Officer separated five grams from the entire stuff for the purpose of FSL. When the alleged recovered stuff was consisted of pieces and pukhta, the question arises as to how it was amalgamated. The circumstances do reveal that from one piece the sample has been separated. What was the weight of that piece the prosecution version on this precise subject stood in vacuum.
7. Again it is in the cross-examination of the seizing Officer that when the accused facing trial was noticed from a short distance, he did not try to flee away. As against that it is in the cross- examination of the recovery witness that the accused was visible to them at a distance of 10/12 paces. He tried to flee away but was chased and finally apprehended by the Seizing Officer and, thus there are material contractions in the version of star witnesses of the case, who are Seizing Officer and witness of the recovery.
8. Besides the above, if one goes through the version of the Investigating Officer, Seizing Officer and Marginal witness to the recovery memo, one could reach to the conclusion that they are not consistent on material aspect of the case, viz a viz, mode and manner and recovery of chars from the possession of the accused-appellant and, thus, in the given circumstances, we have decided to give him the benefit of doubt, resultantly, the appeal is allowed, conviction and sentence recorded by the learned trial Court is set aside and, accordingly, appellant is acquitted of the charge. He be set at liberty, forthwith, if not required in any other case.
Above are the reasons of our short order of even date.