IKRAMULLAH KHAN, J.---Through the instant criminal appeal filed under section 48, C.N.S.A., 1997, the appellant Aslam Khan has challenged the impugned judgment dated 30.01.2019, rendered by learned Additional Sessions Judge-V/Judge, Special Court Nowshera, whereby appellant involve d in case FIR No.125 dated 14.03.2018, under section 9, C.N.S.A. Police Station Aza Khel, District Nowsher a, was convicted under section 9(c), C.N.S.A. and sentenced to undergo life imprisonment along with fine of Rs.10,00,000/- (Ten lac) or in default thereof to suffer further imprisonment of six months SI while benefit of section 382-B, Cr.P.C. was also extendedto the appellant.
2. As per prosecution case, during Nakabandi, the Excise personnel present on the spot intercepted a Motorcar bearing registration No.LRK-3883, driven by appellant, which on search led to the recovery of 18 packets of Charas total weighing 18000 grams, from empty fuel tank of the said motorcar . The contraband along with motorcar were taken into custody , appellant was arrested and a case vide FIR mentioned above was registered against him.
3. After completion of investigation, comp lete challan against accused was subm itted for trial before the learned trial Court where after framing of formal charge against the accused, the prosecution in order to prove its case, examined as many as 07 PWs. On close of prosecution evidence, statement of appellant under section 342, Cr.P.C. was recorded wherein he denied all the allegations levelled against him, however , he did not opt to be examined on oath or to produce defence evidence. After hearing learned counsel for the parties, the learned trial Court convicted and sentenced the appellant vide impugned judgment, hence the instant criminal appeal.
4. We have heard learned counsel for the parties and gone through the record.
5. Perusal of record reveals that PW.4 Nasir Mehmood Khan Inspector along with PW.5 Lal Gul, SI as well as other excise personnel while present on the spot intercepted a motorcar driven by appellant and 18 Kgs. Charas was recovered from the empty fuel tank of the same, however , neither the names of other personnel present on the spot with seizing officer have been mentioned in the murasila Ex.PA/1 nor the said empty fuel tank from which, the alleged contraband were recovered, has been taken into custody by P.W.4, however , PW.5 in his cross examination stated that the tank of motorcar was taken vide recovery memo but perusal of contents of recovery memo reveals that no fuel tank has been taken into possession by PW.4. Even during trial the alleged fuel tank has not been produced before the Court for exhibition of the same in support of prosecution case, so when the fuel tank from which the contraband was recovered has not been produced, then how it could be proved that the contraband was recovered from the same. It is also not mentioned anywhere that how and through which tool, the said fuel tank was opened as according to PW.5 Lal Gul SI, the contraband was in shape of slabs, so how it was recovered from the fuel tank having a small hole.
6.. Likewise, being star witnesses of prosecution, Seizing Officer/complainant was examined as PW.4 while marginal witness namely Lal Gul, SI was examined as PW.5 during trial but they did not corroborate each other on material points rather contradicted each other . According to PW.4, he affixed 3/3 seals of monogram "AK" on the parcels of samples separated from recovered contraband but the said detail of number of seals has not been mentioned in the murasila. Likewise, as per PW.4, there is no seal monogram in the abbreviation of his name in his department while PW.5 asserted in his cross examination that the monogram of "AK" was the personal monogram of PW.4, however , PW.2 Amjad Khan No.294 of Police Station Aza Khel, deposed in his cross-examination that the said monogram of "AK" is of Police Statio n Aza Khel. PW.4, states that the local police of Police Station Aza Khel, were not present with him on the spot at the time of sealing the parcels and affixation of monogram over the parcels while PW.5 denied the version of PW.4 by stating in his cross-examination that police was around them but the whole proceedings was carried out by the Excise Department because they have conducted the whole proceedings, therefore, the local police of Police Station Azakhel had no concern at that very time. Similarly PW.4, deposed that after sealing of case property on the spot proceedings, he along with other contingents of Excise Department went to Police Station Azakh el but PW.5 deposed that he did not remember that they visited Police Station Azakhel or not however , one ASI came to the spot and spent some 20 minutes and thereafter went away .
His this assertion was further contradicted by PW.4 that after arrival of Investigation Officer to the spot and spot inspection, i.e, preparation of site plan, recording of statements of PWs under section 161, Cr.P.C., he along with other contingents of Excise Department went to Police Station Azakhel, meaning thereby that none of the above witnesses are telling the truth. Had they been present on the spot at relevant time and the mode and manner of the occurrence was correct then they would have not contradicted each other on material points.
7. It was admitted by both the star witnesses of prosecution that there was a Police Post attached to. Police Station Aza Khel near the spot but even then they did not bother to inform the local police regarding smuggling of narcotics by appellant though PW.5 had deposed that local police were present at the time of occurrence but even then the whole proceedings were conducted by the Seizing Officer (PW.4). Likewise, it was also admitted by both the above witnesses that their job/ duty was pertaining to Operation Branch and as per Police Rules, investigation Kit is being handed over to Investigation Staff and not Operational Staff but even then PW.4, was having an Investigation Kit, in which the scale, seal etc were available as per assertion of above witnesses. The contents of murasila coupled with statements of both the above witnesses reveals that two mobile phones QE3, containing two SIMs, Samsung SMA 320-F A containing one SIM, CNIC and registration in the name of appellant were recovered from his personal possession which were also taken into possession vide recovery memo Ex.PW .4/1 but neither these were shown in Column No.4 of Challan Form nor have been produced during trial for exhibition of the same, which also creates dent in the prosecution case. As per contents of murasila Ex.PA/1 and recovery memo Ex.PW .4/1 as well as statements of PWs, these were drafted by PW.4 but during trial on the request of learned defence counsel, in order to verify it, the handwriting of PW.4, was obtained and placed on file as Mark -A. On comparing Mark-A and murasila Ex.PA/1 as well as recovery memo Ex.PW .4/1, it shows that there is much difference in the same meaning thereby that the murasila and recovery memo are not in the handwriting of PW.4, which according to PW.4 and PW.5 were drafted by PW .4.
8. Apart from above, the samples separated from the alleged contraband were prepared on 14.3.2018 while it was received in the FSL on 16.3.2018 as per FSL report, after delay of two days which has not been plausibly explained that why it has been sent to the FSL so late. Though PW.2 Amjad Khan No.294, who had taken the samples to the FSL, has stated in his Court statement that it was handed over to him by Musa Khan, Moharrir of the Police Station but the said Musa Khan has not been examined by prosecution in order to explain the delay in sending samples to the FSL as well as its safe custody . Even the prosecution has also not produced extract from the relevant Register , which is kept at Police Malkhana for enter ing therein the recovered and sent contraband. Production of extract from the ibid Register was material so that it could be ascertained that the prosecution version regarding safe custody of the case contraband was corroborated by the relevant record.
9. Another important aspect of the case is that the samples and rest of the parcels have monogram of AK thereon but there is no evidence on the case file to show that on whose name monogram AK was and whether any official by name of AK was ever posted in the Police Station Azakhel or not, particularly when the seizing officer, marginal witness and PW.2 are not in line with each other in respect of the above monogram "AK" which has created serious doubts in the whole recovery process and genuineness of the recovery of contraband from the vehicle.
10. Admittedly no driving license has been recovered from possession of the appellant which could confirm the stance of prosecution that he was driving the vehicle at relevant time however , no any action has been taken in this regard against the appellant for driving the vehicle without license. Likewise, both the star witnesses of prosecution are also not in line with each other in regard to the number and shape of Charas. PW.4 has not disclosed that it was in the shape of slabs or otherwise, nor he has given the number of slabs as well as sub slabs in each packet while PW .5 was unable to say about the number of packets as well as slabs and sub slabs in each packet.
11. Moreover , perusal of FSL report also reveals that the same is without protocol as the Office of Chemical Examiner FSL, Peshawar also after chemical analysis has submitted a consolidated report (Ex.PZ) declaring all the 18 samples to be "Charas" instead of independent test details regarding each sample as required by law. It. is not discernable from the report of Chemical Examiner that whether each sample pertaining to narcotics, allegedly recovered from the appellant, had actua lly been analyzed separately . The evide ntiary value of above report of Chemical Examiner Ex.PZ has been evaluated by us in the light of Control of Narcotic Substances (Government Analysts) Rules, 2001. Rule 6 of the said Control of Narcotic Substances (Government Analysts) Rules, 2001 makes it imperative on an analyst to sepa rately mention result of each sample analyzed with full protocols applied thereon along with other details in the Certificate issued for test/Analysis by Laboratory .
12. For what has been discussed above, we are of the firm opinion that the evidence produced by prosecution is not in line with each other rather contradictory one and there are many loop holes in the same, which creates doubt in the prosecution case, the benefit of which must be given to the accused and it could be safely held that prosecution has failed to prove its case against the appellant beyond any reasonable doubt and the learned trial Court has failed to properly appreciate the evidence produced before it while. convicting and sentencing the appellant vide impugned judgment, which is not sustainable in the eye of law. Cons equently , this criminal appeal is allowed, the impugned judgment dated 30.1.2019, of learned trial Court in respect of conviction and sentence of the appellant, is set aside and the appella nt is acquitted from the charges levelled against him. He is in custody , be released forthwith if not wanted in any other case.
The above are reasons of our short order of even date.