' ALI HUSSAIN QAZILBASH, J.--This appeal by leave, arises from the judgment of a learned Division Bench of the Federal Shariat Court, dated 18-10-1989.
2. On 28-2-1988 at about 6-20 p.m. a patrol party led by Ajab Gul, A.S.I. At Swabi Jehangira Road intercepted, a Suzuki No,PRM-6088 near the tobacco barns of Haji Toor. The Suzuki was being driven by Niamat Khan and Wazir Muhammad appellant was sitting by his side on the front seat. When the Suzuki was searched, eight bags of heroin concealed in the Tarpals of the Suzuki were found.
Each bag was having one kilogram of heroin. The samples of the heroin were sealed and sent to the Chemical Examiner and the two occupants arrested at the spot.
3. Niamat Khan and Wazir Muhammad appellant were tried by the Additional Sessions Judge, Swabi under Article 3/4 of the Prohibition (Enforcement. Of Hadd) Order, 1979, who vide his judgment, dated 4-2-1989; convicted both of them under both Articles of the Order and sentenced each of them to 5 years' R.I., 10 stripes and a fine of Rs,2,500 under Article 3 and to 5 years' R.I., 10 stripes and a fine of Rs,2,500 under Article 4.
4. Both, Niamat Khan and the appellant, filed an appeal in the Federal Shariat Court where notice for enhancement of sentence was served upon both of them. The appellate Court, however, set aside the conviction and the sentence of the appellant and his co-accused under Article 4 of the Order but while maintaining the conviction of the appellant and his co-accused under Article 3 of the Order enhanced their sentence of imprisonment from 5 years' R.I. To 10 years' R.I. And to amount of fine from Rs,2,500 to Rs,25,000. The punishment of stripes, too, was enhanced to 25.
5. Leave was granted to consider the defence taken up by the appellant in this case.
6. We have heard the learned counsel for the parties and have gone through the judgments of the Courts and the record of evidence.
7. We have considered the defence taken up by the appellant in the light of the prosecution evidence and we find that the learned appellate Court did not pay any attention to the defence taken up by the appellant. In the criminal trial whereas it is the duty of the prosecution to prove its case against the, accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution. The case set up by the appellant has certainly created doubt in our mind about the truthfulness of the case of the prosecution. The explanation given by the appellant is quite plausible and the possibility cannot be ruled out that the heroin was owned by the passengers who ran away from the spot.
8. In the circumstances, we accept the appeal and set aside the conviction and the sentence of the appellant. He has already been ordered to be released as per the short order, dated 24-8-1991.