ISHTIAQ IBRAHIM, J.---Through this criminal appeal, appellant Sajid Khan has challenged the validity and legality of the judgment, passed by learned Additional Sessions Judge-III/ Judge Special Court, Peshawar vide order dated 29.02.2016, whereby the appellant was convicted and sentenced as under: "Accused/appellant was convicted and sentenced to imprisonment for life and he is also burdened with a fine of Rs.1,00,000/- (one hundred thousand), in default whereof he shall suffer S.I. for six (06) months. Benefit of Section 382-B, Cr .P.C. was given to him.
2. Brief facts of the case are that complainant Sartaj Khan S.I. Incharge P.P. Jamrud during barricade, received information regarding smuggling of heroin from tribal territory through Suzuki pickup. Pursuant to the said information, he along with Incharge of PP Industrial Estate Daud Khan ASI, Shahid Khan ASI, Saifullah 5236, Gul Rokhan 2469, Misbah 1277 made barricade on the spot. In the meanwhile, a white colour Suzuki bearing Registration No.2013-08- 3934 on the tip of informer was intercepted. The driver was deboarded, who disclosed his name as Sajid Khan son of Fazal Khan resident of Mian Masjid District Nowshera. Search of the said vehicle was conducted and on the pointation of informer in the presence of accused, 12 packets of heroin were recovered from the secret cavities made in the rear four seats of the said vehicle. Each packet was weighed which came to 1/1 KG, the total of which came out 12 KGs and from each packet 1/1 gram was separa ted for the purpose of chemical analysis while the remaining stuff was sealed into separate parcels and the accused was booked for the commission of of fence, hence the present FIR.
3. On completion of investigation, challan was submitted against the accused: The provisions of 265-C, Cr.P.C. were complied with. Charge was framed, to which he pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution produced and examined as many as 07 PWs.
4. Sartaj Khan SI (PW-2), stated that on 14.09.2013 at about 12:30 hours he along with Daud Khan ASI, Shahid Khan, ASI, Saif Ullah 5236, Gul Rokhan 2469 and other police contingents were present on the spot when he received information regarding the smuggling of heroin in a Suzuki coming from tribal area. Pursuant to the said information, he laid Nakabandi on the spot. In the meanwhile a Suzuki bearing registration No.2013-05- 3934/Peshawar of white colour on the pointation of informer was stopped. The driver was deboarded who disclosed his name as Sajid Khan son of Fazal Khan. Search of the said vehicle was conducted and on the pointation of informer in presence of the accused, 12 packets of heroin weighed 1/1 KG each i.e. total of 12 KGs of heroin was recovered from the secret cavities made in rear four seats of the said vehicle i.e. 3 packets from each seat. He separated 1/1 gram from each packet for the purpose of FSL and sealed into parcels Nos.1 to 12 whereas the remaining quantity i.e. 11988 grams Ex.P-1 was also sealed into parcel No.13 and affixed 3/3 monograms of ST on each of the prepared parcels. He prepared the recovery memo Ex.PW2/1 in presence of marginal witnesses and duly executed through the marginal witnesses. He arrested the accused and prepared his card of arrest Ex.PW2/2. He also drafted the murasila Ex.PA/1 and sent the same to Police Station through constable Saif Ullah 5136 for registration of the case. The vehicle along with seats was also took into possession. He drafted an application Ex.PW2/3 to the ESL, for onward sending the samples to the FSL. The site plan was also prepared at his instance.
5. Ilyas Khan Inspector (PW-4), who is the Investigation Officer of the present case, stated that he proceeded to the spot and prepared the site plan Ex.PB at the instance of complainant. He recorde d the statements of PWs under section 161, Cr.P.C. vide his application Ex.PW4/1. He produced the accused before the Court of judicial Magistrate which was allowed and two days custody of the accused was granted. He interrogated the accused and recorded his statement under section 161, Cr.P.C. The accused admitted his guilt before him during investigation vide his application Ex.PW4/2. He produc ed the accused before the Court of learned Judicial Magistrate, Peshawar for recording his confessional statement which he refused and accused was sent to judicial lockup. He also received and placed on file the FSL, report regarding the verification of chassis number of vehicle in question, report of which is Ex.PZ/1. He also verified about the vehicle and placed the documents on judicial file. After completion of investigation, he handed over the case file to the SHO concerned for submission of complete challan.
6. After closure of prosecution evidence, statement of accused was recorded under section 342, Cr.P.C. but neither he opt to be examined on oath, nor wished to produce evidence in his defense. The learned trial Court after hearing both sides, convicted and senten ced the accused which is mentioned in the earlier part of the judgment, hence this appeal.
7. Having heard arguments of learned counsel for the appellant, learned AAG for the State and scanned the record with their valuable assistance.
8. Charge against the appellant is that while driving Suzuki Pickup bearing No.3934/Peshawar , he made an attempt to smuggle heroin 12 KG which were recovered from the secret cavities made in the rear seats for this particular purpose. Sartaj Khan S.I (PW -2) states in FIR that: {{URDU TEXT}} He also states in his examination in chief that: "Search of the said vehicle was conducted and on the pointation of informer in presence of the accused 12 packets of heroin weighed 1/1 kg each i.e. total of 12 kgs of heroin was recovered from the secret cavities made in rear four seats of the said vehicles i.e. 3 packets from each seat."
Though in his cross-examination he takes u-turn and denies the presence of informer at the time of recovery but the FIR and his examination in chief it is manifest that the recovery was effected on the pointation of informer although under Article 8 of the Qanun-e-Shahadat the informer is immune - from appearing before the Court to record his statement but in the present case if we look at the mode and manner of recovery , the role played by the informer is not of mere information rather he is more than informer and of course it smack of some foul play on the part of the prosecution.
9. Apart from the above, the case of the prosecution is that the recovery was effecte d from the secret cavities made therein for particular purpose, however when the same were observed and seen by the learned trial Court during the examination of Shahid ASI (PW -3). The relevant portion of Court observation is reproduced as follow: "As per the observation of this Court, no secret cavities in a structured form were found. It is in the shape of Suzuki pick up with no rear top cover ."
If this is the position when the case of the prosecution is of secret cavities especially made for the same and the observations of the Court are contrary to the same, then the observations of the Court have overriding effect upon the evidence of the prosecution.
10. It is admitted by Sartaj Khan S.I. (PW-2) in his cross-examination that all the documents were prepared by Muhammad Daud Khan ASI even the application for sending the sample to FSL was also authored by Muhammad Daud Khan ASI. The relevant portion is reproduced as below: "The application for sending sample to the laboratory is also in the hand writing of Muhammad Daud Khan ASI."
The said Muhammad Daud Khan ASI was the prosecution witness and has also signed recovery memo Ex.PW2/1 but he was not produced by the prosec ution during trial and was abandoned on 12.12.2015. There are also material contradictions in the statements of PWs with regard to shifting of accused and case property to the Police Station, the mode and manner of alleged recovery . It is also strange that this PW-2 Sartaj Khan S.I. has admitted that at the time of alleged recovery Muhammad Daud Khan C ASI was Incharge of PP Industrial Estate while complainant says that he himself was Incharge of PP Jamrud and he also states that PP Jamrud was under the supervision of PP Industrial Estate and he being S.I. was working under the supervision of ASI. The relevant portion is as under: "It is correct that during the days of occurrence I was sub-Inspector and working under the supervision of ASI"
11. Moreso, the recovery was effected on 14.05.2013 while the samples were received to FSL on 19.09.2013.
During this interregnum in whose custody the samples were lying and secondly FC No.2939 (mentioned in FSL report) has not been examined by the prosecution in order to prove the safe custody and its onwards transmission to the FSL. It is also admitted by the Investigating Of ficer Ilyas Khan, Inspector (PTV -4) which is as under: "I cannot say that specifically through whom the samples were sent to FSL however he was an official of the local police. I have not recorded the statement of anyone regarding the safe custody of sample and case property . Today I peruse the FSL report Ex.PZ where the name of constable is not mentioned, however the number is mentioned."
In this regard reliance is placed on the judgment of apex Court reported in 2015 SCMR 1002 (Ikramullah v. The State ). The principle enunciated from the above referred judgment is as under: "In the case in hand not only the report submitted by the Chemical Examiner was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated sample s to the office of the Chemical Examiner had also not been established by the prosecution. It is not disputed that the investigating officer appearing before the learned trial court had failed to even to mention the name of the police official who had taken the samples to the office of the Chemical Examiner and admittedly no such police official had been produced before the learned trial Court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner . In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit."
12. The accumulative effect of the above discussion is that the prosecution has been miserably failed to prove its case beyond shadow of reasonable doub t by producing such a scanty and unreliable evidence. Hence, we are left with no choice but to allow this appeal and set aside the impugned judgment of learned trial Court and acquit the appellant from the charge levelled agains t him. He is in custody , be released forthwith if not required in any other case. These are the detailed reasons of our short order of even date, which are reproduced as below: "For the reasons to be recorded later on, this criminal appeal is allowed and conv iction and sentence awarded to the appellant Sajid Khan son of Fazal Khan, involved in case FIR No.973 dated 4.09.2013 registered against him under section 9-C CNSA at Police Station Hayatabad, Peshawar by the learned Additional Sessions Judge-1 1B Judge Special Court, Peshawar vide judgment dated 29.02.2016 is set aside and he is acquitted of the charges levelled against him. He be set free, if not required in any other case."