1. Ishtiaq Ibrahim, J.--By way of this single Judgment we will dispose of the present Appeal No. 320- P/2016 and the connected No, 321-P/2016 as both appeals are outcome of one of the same judgment. Both appellants/convicts namely; Sajjad Khan and Waheed Shah have preferred two separate appeals against the judgment dated 28.04.2016 passed by the learned Judge Special Court/ASJ-XI, Peshawar in case vide FIR No. 878 dated 13.08.2014 u/S. 9 C CNSA of Police Station Hayatabad, whereby they were convicted and sentenced for 06 years R.I each with a fine of Rs.50,000/- each and in default of payment of fine, they shall undergo further SI for six (06) months each. Benefit of Section 382-B, Cr.P.C. were extended to both the appellants/convicts.
2. 2.Brief facts of the prosecution case as per contents of the FIR are that on 13.08.2014 at about 13.30 complainant Shakeel Khan ASI (PW1) along with other police personnel were present at Jamrud road in connection with barricade during which a 'motor car' bearing registration No. RIA-9536 came from Jamrud side was stopped for the purpose of checking. The driver disclosed his name as Sajjad Khan son of Zarin Khan while the person sitting in the front seat disclosed his name as Waheed Shah son of Zarab Shah. Upon the search of the `motor car' three packets of heroin power wrapped in white plastic recovered from the hood (bonnet) of the said motor car. The same was weighed and found each packet of one kg etch i.e total 03 kgs. The complainant separated 5/5 grams from each packet for FSL and sealed the same into Parcel Nos. 1 to 3 by affixing 3/3 seals of MA monogram. The complainant took into possession the contraband along with the vehicle, prepared the recovery memo, drafted the murasila and sent the same to the PS where the above mentioned FIR was registered against them.
3. 3.After completion of the investigation, challan against the accused was submitted before the Court of learned ASJ-XI, Peshawar who summoned the accused and on appearance provisions u/S. 265- C, Cr.P.C. were complied with. On 02.02.2015 formal charge against the appellants/convicts was framed to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined the following nine (09) PWs: PW-1 Shakeel Khan ASI is the complainant who along with other police party was present at the spot. In the mean while a 'motor car' bearing Registration No. 9536-RIA came was stopped for the purpose of checking. On query the driver disclosed his name as Sajjad Khan while the person sitting on the front seat disclosed his name as Waheed Shah .On search of the 'motor car' he recovered three packets heroin powder wrapped in white plastic from hood (bonnet) of the said `car.' He weighed the heroin and found each packet of one /one kgs. He i.e. total 03 kgs. He separated sample of 5 grams from each packet, sealed into parcels and sent to the FSL for chemical analysis. The remaining contraband was sealed into Parcel No. 4 EXP-1. He arrested the accused-appellants, prepared the recovery memo. drafted the murasila and sent the same to the PS for registration of the case against the appellants/convicts.
4. PW-2 Muhammad Ismail No. 2894 who is marginal witness to the recovery memo. already exhibited as EXPW1/1 vide which the complainant took into possession contraband along with the motor car and prepared the recovery memo in his presence to which he signed as its marginal witness. PW-3 Jangraiz Khan SI who on the receipt of the murasila incorporated its contents into FIR EXPA, the same is in his hand writing and correctly bears his signature.
5. PW-4 Shah Behan Khan Inspector has submitted complete challan against the accused in this case.
6. PW-5 Khushal Khan SI has conducted investigation in this case, prepared the site plan EXPW1/1 at the instance of the complainant. He recorded the statements of the PWs u/S. 161, Cr.P.C. He obtained two days police custody of the accused from the Court of Judicial Magistrate vide his application EXPE5/2. He interrogated the accused and recorded their statements u/S. 161, Cr.P.C. and produced them before the Judicial Magistrate for recording confessional statement vide his application EXPW5/3. Vide his application EXPW5/4 he got examined the vehicle from FSL Vide application EXPW5/5 he obtained report from the ETO in respect of the said vehicle. He has received the FSL EXPZ. He recorded the statement of PW who has taken the sample to the FSL. After completion of the investigation he handed over the case file to the SHO of PS concerned for onward proceedings.
7. PW-6 Imran Khan ASI was posted as ASI/Moharrir in the Police Station during the days of occurrence. He received the parcels along with the motor car from the complainant ASI Shakeel Khan. He has kept the parcels in the Malkhana and stand the vehicle in the PS under the supervision of a constable. His statement was recorded by the I.O.
8. PW-7 Misbahullah No. 1277 was posted in Police Station Hayat Abad during the days of occurrence and Madad Moharrir Nigar handed over to him three parcels alongwith the receipt bearing No. 488/21 which he handed over to the FSL authorities and obtained signature over it and then brought back the said receipt and handed over to the Nighar Madad Moharrir. His statement was recorded by the I.O.
9. PW-8 Hamesh Gul No. 2386 has deposed that on the day of occurrence he was present on the spot with the police party. After receipt/arriving of the said 'car' recovery of heroin and the whole proceedings were conducted in his presence. The contraband was taken on recovery memo. and the recovery memo. was prepared. He was cited as marginal witness on the recovery memo. already exhibited as EXPW1/1. Accused were arrested and after drafting the murasila the same was handed over to him for taking to the Police Station which he took to the PS and handed over to the Moharrir for registration of the case. He signed the recovery memo and his statement u/S. 161, Cr.P.C. was recorded by the I.O.
10. PW-9 Nigar Madad Moharrir was posted in Police Station Hayatabad during the days of occurrence. On 18.8.2014 he was present in the PS and handed over samples parcel to the Misbahullah constable No. 1277 vide receipt No. 488/21 dated 18.8.2014 for, taking the same to the FSL for examination. After depositing the same, the receipt was handed over to him. His statement u/S. 161, Cr.P.C. was recorded.
11. 4.On conclusion of prosecution evidence statements of the accused-appellants were recorded u/S. 342, Cr.P.C. denying the allegations therein. Accused Sajjad was examined examined on oath u/S. 340 (2), Cr.P.C. while appellant Waheed Shah refused to give statement u/S. 340 (2) Cr.PC. Both the appellants did not produce defence evidence.
12. 5.On 13/04/2016 Accused Sajjad in his statement recorded u/S. 340 (2), Cr.P.C. wherein he stated that he is doing a cloth business and brought clothes from Karkano market to Shafi Market Saddar Peshawar. He was traveling in the taxi having clothes (non custom paid). Shakeel Khan ASI deboarded him from the taxi and brought to the Police Station beaten him by the complainant there and registered the present case. One mobile set and cash amount was also taken from him.
13. He does not know the co-accused even he can swear on Holy Quran about this fact. He was not arrested from the car in question nor was anything recovered from him. This case is false and planted one.
14. 6.Trial of the appellants culminated on the conviction and sentence vide impugned judgment dated 13.02.2013, so he has preferred the present appeal.
15. 7.We have heard arguments of the learned counsel for appellants and learned AAG for the State and have gone through the record of the case.
16. 8.According to the FIR allegations against the accused-appellants are that they were trafficking the heroin powder through motor bearing Registration No. 9536/RIA and were stopped by the police and the recovery was made from the hood (bonnet) of the said `car' and proceedings were carried out by the PW-1 Shakeel Khan ASI complainant of the instant case. The complainant in his cross- examination stated the murasila and recovery memo was dictated to the Moharrir after calling him from the Police Station while PW 8 who is marginal witness to the recovery memo.
17. EXPW1/1 and eye-witness of the occurrence and in his cross-examination stated that he do not remember that who drafted these two documents. Stance of these two . PWs are totally belied by the statement of PW6 Imran Moharrir who was supposed to be present in the Police Station.
18. Moreover, during his Court statement this witness has not uttered a single word regarding his summoning by the complainant to the spot and preparation of the recovery memo and drafting of murasila as per dictation of the complainant PW 1 which suggest all the proceedings were carried out by the complainant in Police Station which goes to the roots of the prosecution case. The deposition of the prosecution witnesses are not in line with each other rather they are contradictory regarding the proceedings carried out by the complainant in this case which casts serious doubt on the genuineness of the recovery. According to the record the recovery was affected on 13.8.2014 whereas the samples were received by the FSL on .19.8.2014 but this delay has not been explained by the prosecution while PW9 Nigar Madad Moharrir in his statement stated that on 18.8.2014 samples parcel were handed over to Misbullah constable for its transmission to the FSL for chemical analysis.
19. 9.It is the bounden duty of the prosecution to prove its case beyond the shadow of reasonable doubt in our view the prosecution has been miserably failed to establish its case, thus we extend the benefit of doubt to both the appellants.
20. 10.In view of the above mentioned circumstances we accept the instant appeal and the connected Appeal No. 321-P/2016 and set aside conviction and sentence passed by the learned Judge Special Court, Peshawar dated 28.04.2016 in cass vide FIR No. 878 dated 13.8.2014, registered u/S. 9, CNSA of PS Hayatabad and acquit both the appellants, of the charges leveled against them.
21. Appellant Sajjad Khan is in custody and he be released forthwith if not required in any other case.
22. Appellant Waheed Shah is on bail and his bail bonds stand discharged.
7. Above were the reasons of our short order of even date.