MUHAMMAD AYUB KHAN, J.---This criminal appeal is directed against the judgment dated 30.09.2016 passed by learned Additional Sessions Judge-II/Judge Special Court, Peshawar delivere d in case FIR No.247 dated 22.02.2015 under section 9(c) of the Control of Narcotic Substances Act, 1997 of Police Station Hayatabad, Peshawar , whereby on conviction, the appellant has been sentenced to rigorous imprisonment for life with a fine of Rs.3,00,000/- or in default whereof to undergo four months' SI with benefit under section 382-B, Cr .P.C.
2. As per prosecution version, complainant Nauman Khan, ASI (PW-4) received information qua smuggling of huge quantity of narcotics from tribal territory in motorcar bearing registration No.STE-7860. In order to foil the bid, he along with other police nafri laid a picket at Karkhano Check Post. In the meanwhile, the said vehicle reached there, which was singalled to stop. On inquiry , the driver disclosed his name as Dilawar , present appellant. Search of the vehicle led to the recovery of 12 kg chars garda. Necessary samples were separated for chemical analysis while the remaining bulk was sealed in separate parcel, hence on the basis of murasila Ex.PA/1, the case was registered.
3. On completion of investigation, complete challan was put in court where the appellant was indicted for the crime to which he pleaded not guilty and claimed trial. In order to prove its case, prosecu tion examined 6 witnesses in all whereafter statement of the accused was recorded, wherein, he refuted the prosecution case and professed innocence. The learned trial court, after conclusion of the trial, found the appellant guilty of the charge and while recording his conviction sentenced him as mentioned above, which is under challenge in the appeal in hand.
4. Learned counsel for the appellant argued that contraband has not been recovered from direct and immediate possession of the appellant; it is in FIR and statement of PW-4 that at the pointation of informer the case property was recovered. Reference was made to the statement of Seizing Officer (PW-4), wherein,he admitted that he did not remember the order/line in which the contraband in question was lying; that the case property was de-sealed by the order of the court. During examination of PW-6, it was found that 10 packets were of 5844 gram; that 4 packets were empty , the contraband weighing 3980 gram of these packets were lying in the sack; that according to PW-6, each packet was of single slab, however , the court found that all packets were not in slab form, which makes the recovery doubtful. Lastly , it was argued that the trail of the safety custody of samples and case property is not proved and as such prayed for acquittal of the appellant on the above grounds.
5. Learned State counsel, while opposing the appeal, argued that the appellant was driving the vehicle in question wherefrom 12 kg chars was recovered, hence being Incharge of the vehicle was in the knowledge of presence of the contraband, therefore, in view of straight, overwhelming and confidence inspiring evidence of PWs, he was rightly convicted and sentenced.
6. Arguments heard and record gone through.
7. Prosecution case against the appellant is that on 22.02.2015 he was found driving the vehicle in question search whereof led to the recovery of 12 kg chars garda.
8. As far as presence of the informer and his pointation is concerned, under Article 8 of the Qanun-e-Shahadat Order , 1984. the informer is immune from appearing before the court to record his statement. In the instant case, the informer has played a role. Beside -information, his behavior hints foul play on the part of prosecution.
9. As far as the recovery is concerned, according to Seizing Officer (PW-4), he did not remember the order/line in which the contraband in question was lying. Likewise. During examination of PW-6, it was found that out of the 10 packets, packets Nos.1 and 2 contained 932 gram each, packet No.3 882 gram, packet No.4 950 gram, packet No.5 1140 gram and packet No.6 1008 gram whereas 4 packets were empty , which negates the contents of FIR, wherein, it is stated that each packet was of 1200 gram. The contraband weighing 3980 gram of these packets was lying in the sack. This witness further admitted that each packet was consisted of single slab, however , as per court observation, it was found that all packets were not in slab form, which makes the recovery doubtful.
10. It is in FIR and statement of PW-4 that the case property was handed over to Saeed Khan HC. Said Saeed Khan HC has not been examined by the court. Anyway , PW-5 stated that contraband was handed over to him by Saeed Khan HC and he deposited the same in the Malkhana. In this regard, no receipt or abstract from Registrar Nos.19 and 21 have been placed on file.
11. Perusal of FSL report shows that the samples were sent to FSL through FC Haroon Rasheed. Said Haroon Rasheed FC has not been examined. Then, PW-5, who had received the case property , has not sent the same to FSL. It is not known as to who handed over the case property to FC Haroon Rasheed and from where. The contraband was taken into possession on 22.02.2015 whereas the samples reached FSL on 10.03.2015. There is nothing on record to show as to where remained the samples during this period.
12. Investigating Officer appeared as PVV-3. In cross-examination, he stated that "I have not investigated the factum of delay in sending of alleged samples to FSL and its safe custody". In such situation. it is not proved that the case property produced in the court was seized by the Investigating Officer (PW-3) and remained in safe custody . Same is the case with samples and there is no excuse that where the samples remained from 22.02.2015 to 10.03.2015 and why same were sent with such delay .
13. It is settled by now that a single doubt in the prosecution case is sufficient to record acquittal of an accused, however , the bid lacunas in the case cannot be overlooked.
14. After considering and appreciating the case evidence, we are of the considered view that the learned trial court did not analyze the prosecution evidence in its true perspective and in accordance with the principles laid down by the superior courts for dispensation of criminal justice. The learned trial court has fallen into legal error by recording conviction of the appellant, therefore, we accept this appeal, set aside the impugned judgment of conviction and acquit him of the charge levelled against him. He be set free forthwith, if not required or wanted in any other criminal case.