' This appeal filed by Iftikhar son of Matwal, resident of Badrashi, Tebsil and District Nowshcra is directed against the judgment, dated 26-4-1993 passed by the learned Additional Sessions Judge, Nowshera whereby he has been convicted under Article 4 of the Prohibition (Enforcement of Hadd)
Order, 1979 and sentenced to three years' R.I., whipping numbering five stripes and a fine of Rs,5,000 or in default further six months' S.I. The benefit of section 382-B, Cr.P.C. Has also been extended to him.
2. Briefly stated the case of prosecution according to Exh.P.A. Recorded on the statement of Momin Khan, 1.11.C. On 13-6-1992 is that the appellant was searched on suspicion and was found in possession of fifteen grams heroin which was taken into possession vide memo and alter necessary investigation he was challaned to face the trial.
3. At the trial prosecution examined four witnesses. P.W.1 is Said Qamar, F.C. He is a witness to the recovery memo. Exh.P.C. P.W.2 is Salahuddin, S.M.U. He submitted complete challan against the appellant/accused. P.W.3 is Muhammad Rashid, M.H.C. On receipt of Murasila he registered F.I.R.
P.W.4 is Momin Khan, A.S.I. Ile is the complainant who investigated the case. Report of the Chemical Examiner is positive.
4. The appellant in his statement under section 342, Cr.P.C. Denied the alligation and pleaded innocent. Replying to a question "what was his statement"? He stated as under:--- "I am innocent and falsely charged. The I.O. Has falsely implicated me with the same allegation which he has made vide F.I.R. 207, dated 6-7-1992, F.I.R. 226, dated 23-7-1992 and F.I.R. 24, dated 6- 7-1992 of the same police station. All these F.I.Rs, are of 15 grams."
' Replying to another question about the positive report of Chemical Examiner he made a statement in the following words:--- "The alleged heroin was sent for chemical examination and received on 20-6-1992 whereas the case was registered on 13-6-1992. The prosecution has failed to explain the delay and the keeping of the alleged hcrcoin, nor the prosecution has produced the person through whom the heroin has been sent."
5. 1 have heard the learned counsel for the parties and have perused the record with their assistance. The learned counsel for the appellant made submissions that the appellant was apprehended on Eid day at busy spot and no one from the public was associated with the proceedings. This contention, however, is without any force as the public in general do not like to associate themselves with such like proceedings due to various factors and, therefore, non- production of any public witness in cases where recovery is effected from the personal search is not fatal to the case of prosecution. The Investigating Officer made it clear in his cross- examination that he tried his best to get the signature from the private person but nobody was ready to become witness. The learned counsel further contended that several other F.I.Rs, had been registered by the same Investigating Officer wherein recovery of fifteen grams heroin from different people had been shown. This submission was also not found convincing as there could be several cases of fifteen grams heroin only from various persons on different occasions. The learned counsel lastly submitted that the alleged recovery was made on 13-6-1992 and the sample was received by the Chemical Examiner on 20-6-1992 but it is nowhere mentioned where did the parcel remain during all this time.
6. On thorough scrutiny of the record it was revealed that the submission was forceful. P.W.4 Momin Khan, A.S.1. Who is the complainant has mentioned nowhere in the statement that the parcels of contraband were either sent by him to the Muharrir or had himself kept the same in safe custody.
In his examination-in-chief he only mentions that vide his application Exh.P.W.4/1 he sent the contraband to the Chemical Examiner and later on received report of the Chemical Examiner. Thus, it renders the said report of the Chemical Examiner doubtful to that extent. It is also noteworthy that P.W.3 Muhammad Rashid, M.H.C. Has admitted in the cross-examination that he had received only Murasila with no other documents or case property. The P.W.1 who is recovery witness only mentions about the sealing of parcels but not a word about safe custody of the said contraband. It is to be appreciated that the prosecution is duty bound to prove its case beyond any shadow of reasonable doubt and in this case safe custody of the contraband in the context and its delayed despatch to the office of Chemical Examiner creates doubt and the appellant/accused is rightly entitled to get benefit thereof.
7. Consequently, for the reasons stated above, I accept the appeal of Iftikhar son of Matwal, the appellant, set aside his conviction and sentences and acquit him of the charge. He shall be released forthwith if not wanted in any other case.