LAL JAN KHATTAK, J.---This criminal appeal is directed against the judgment dated 08.07.2020 of the learned Judge Special Court (CNS), Peshawar delivered in case FIR No.58 dated 25.05.2016 under section 9(c) of the Control of Narcotic Substances Act, 1997 of Police Station ANF, Peshawar, whereby the appellants have been convicted and sentenced to rigorous imprisonment for life with fine of Rs.200,000/- each or in default whereof to further undergo one year S.I. Benefit under section 382-B, Cr.P.C. has been extended to them.
2. Brief facts of the case are that there was information to the high-ups of ANF to the effect that international drug peddlers, namely, Masood Khan alias Masozai and Haji Waris through their agents Gul Khan and Adnan (appellants) will smuggle huge quantity of narcotics from Peshawar t6 Mardan through their motorcar bearing Registration No.FF-013/Islamabad (the vehicle) and thereafter to Karachi by cargo service of Daewoo Bus from Daewoo adda Mardan. Believing the information as true, Inspector Muhammad Aslam (PW-1) along with FC Muhammad Farhan (PW-4) with others left the PS and reached the place of occurrence. After some time, the vehicle reached there, which was stopped for checking. On query, the driver disclosed his name Adnan Gul while the front seater became known as Gul Khan. Search of the vehicle led to the recovery of 20 kg heroin effected from its secret cavities. On the basis of ibid recovery, the case was registered against them.
3. After completion of investigation, the case was put in court for trial against the accused. which 'indicted them for commission of the offence to which they pleaded not guilty and claimed trial.
Prosecution in order to prove its case produced and examined 4 witnesses in all whereafter statements of accused were recorded wherein they professed their innocence. The learned trial court, after conclusion of the trial, found the appellants guilty of the charge and while recording their convictions sentenced them as mentioned above whereagainst they have filed the appeal in hand.
4. Arguments heard and record gone through.
5. Perusal of the record would show that in the case in hand the prosecution has not produced original FSL report whereunder the representative samples, separated from the recovered stuff, have been found to be of heroin. Learned counsel for the ANF stated at the bar that the original FSL report was misplaced and as such its duplicate was produced in evidence as Ex.1/16. On record of the case, there is no such material which could show that the duplicate copy of the FSL report was produced by the officials of the concerned Laboratory and likewise the duplicate copy so produced before the court has also not been signed/attested by the chemical examiner or the chemical expert nor by the Director of the Laboratory. Furthermore, no application is available on the case file moved by the prosecution seeking permission to produce secondary evidence regarding the misplaced original FSL report. In such like situation, production of duplicate of the original FSL report cannot be considered as secondary evidence and same on no count could be relied upon for recording conviction of the appellants. Likewise, none from the FSL has appeared before the trial court verifying genuineness of the duplicate so produced before it.
6. Apart from the above, another noticeable aspect of the case is that the recovery was effected at Rashakai Interchange near Motorway Mardan wherefrom the ANF officials brought the vehicle along with the appellants to Peshawar and in the Police Station of ANF at Peshawar the report was lodged and the recovery was effected from the vehicle. Not scribing murasila at Rashakai has put the prosecution case under heavy doubts as to its accuracy as contained in the FIR. Though for not conducting the legal proceedings on the spot and for bringing the vehicle along with the contraband and the accused to Police Station ANF, Peshawar, the complainant has given security reasons for the same but ibid reason is of no help to the prosecution as the complainant had received information in advance at Peshawar regarding the smuggling of contraband to Karachi from Peshawar and thus he had sufficient time to take proper security measures which he did not do. Moreover, according to the FIR, there were about more than dozen of ANF officials with the complainant and as such in view of this heavy contingent of ANF officials there should not have been any imminent danger or any issue of law and order situation for the complainant to act on the spot. In addition to the above, the complainant could have asked for help from police of the nearby Police Station which too he did not do.
7. Another important aspect of the case which cannot be overlooked is that out of the 13 ANF officials, who were with the complainant on the spot, only two have been cited and produced in support of the prosecution case as its witnesses. Though the prosecution is not bound to produce all those officials who participate in some operation as its witnesses but when in a case maximum punishment provided is of death or imprisonment for life then in that case production o? maximum number of witnesses available on the scene are to be produced for their evidence so that case against the accused is proved beyond any reasonable doubt.
8. Thorough and careful examination of the case record would show that the prosecution has not proved its case through cogent and reliable evidence and the learned trial court has not appreciated the case evidence in its true perspective and as such the conclusions drawn by it are not borne out of the case evidence. It is well settled that in order to connect an accused with the commission of an offence, the prosecution must produce concrete and confidence inspiring evidence connecting his neck with the alleged crime, which is not the case in hand as on no count it could be said that the prosecution has proved its case against the appellants beyond any shadow of doubt for which the impugned judgment cannot be upheld.
9. For what has been discussed above, this appeal is allowed, the convictions and sentences recorded by the learned Judge Special Court (CNS), Peshawar vide impugned judgment dated 08,07.2020 are set aside and consequently the appellants are acquitted of the charge(s) levelled against them. They be set at liberty forthwith if not required or wanted to be detained in any other case.
10. Above are the reasons for our short order of even date.