' Appellant Sohail Sardar was convicted by the Sessions Judge, Peshawar under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 on 13-12-1992 and sentenced to undergo rigorous imprisonment for 10 years, to suffer 30 stripes and to pay a fine of Rs,2,000 or in default to further undergo simple imprisonment for 3 months. The appellant has challenged his conviction and sentence by the appeal in hand.
2. A.S.I. Nowsher Khan of Police Station Hayatabad was on duty at Hayatabad Check Post on 11-9- 1991 when at 11-30 a.m. a Vespa Scooter No,PRD-5588 came from Jamrud side. It was stopped at the Check Post. The scooter was being driven by accused Nasir All and appellant Sohail Sardar was sitting on the rear seat. A search of the scooter was carried out by A.S.I. Nosher Khan and he recovered one plastic bag containing one kilogram of heroin from its tool box. Both the aforesaid accused were sent up for trial before the learned Sessions Judge, Peshawar, who charged both of them under Articles 3 and 4 of the Prohibition Order. Both the accused pleaded not guilty to the charges and claimed trial.
3. After the conclusion of the trial accused Nasir All was acquitted while the appellant was convicted and sentenced as aforesaid.
4. The heroin in question was recovered from the tool box of the scooter which was being driven by acquitted accused Nasir Ali while the appellant was sitting on the rear seat. The latter made a confession on 15-9-1991, 4 days after his arrest whereby he admitted that the heroin recovered from the scooter belonged to him and he had hidden it in its tool box. However, the appellant resiled from the confession in his statement under section 342, Cr.P.C.
5. The heroin in question was recovered from the tool box of the scooter when it was being driven by acquitted accused Nasir All while the appellant was sitting on the rear seat. Besides the confessional statement there was no other evidence on the record to prove as which of the two accused was owner of the said heroin. The appellant could also not be held guilty under Article 3 of the Prohibition Order, for the simple reason that actually he was not transporting the heroin. At the relevant time the acquitted accused Nasir All was the master of the scooter. Besides the confession there was no evidence on the record to either to prove the ownership of the appellant over the heroin or to prove that he was transporting the same. There was neither any corroboration of the confessional statement nor the same could be relied upon as it was retracted during the trial.
Moreover the fact of the confession having no authenticity had also become doubtful as the same was recorded after 4 days of the arrest of the appellant who had alleged that he was tortured in this respect.
6. The net result of the above discussion is that no evidence was brought on record to prove the guilt of the appellant beyond any doubt whatsoever. Consequently the appeal is accepted, and the appellant is acquitted of the offence for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case.