EJAZ AFZAL KHAN, J.--On 11-6-1996, Muhammad Arshad Khan, F.I.O., ANF alongwith his staff was present in Cantt. Area at Peshawar on the direction of Regional Director for checking the hotels and narcotic dealers therein. On a spy information he alongwith his staff proceeded to Sindbad Hotel, Peshawar and fenced a picket for the purpose. In the meantime Adil Hussain, appellant herein, and Sharafat Hussain, his co-accused came out of the hotel. When suspicion necessitated their search, it led to the recovery of 200 grams of heroin from the possession of the former which culminated in the registration of a case under sections 6, 7, 8 and 9 under the Control of Narcotic Substances Ordinance (LIX of 1996), vide F.I.R. No.7 dated 11-6-1996, Police Station Narcotic Force, Peshawar.
2. After arrest, interrogation and completion of necessary investigation, the appellant was sent to the Court of learned Judge Special Court, Peshawar for trial who on its conclusion sentenced him to imprisonment for life with a fine of Rs. One million or to default to further undergo R.I. For 5 years with the benefit of section 382-B, Cr.P.C., vide his judgment dated 27-8-1998, hence this appeal.
3. Before discussing' the `merits of the case, the learned counsel appearing on behalf of the appellant contended that though the appeal has been filed after the expiration of period prescribed therefore nonetheless, this delay is condonable firstly because the Superintendent, Jail did not inform the appellant in accordance with the terms of rule 90 of the Prison Rules, 1894, on his first admission to the Prison of the period within which an appeal from the order by which he was committed to prison, was to be filed. The learned counsel by placing reliance on the case of Ziaur Rehman's v. The State 2001 SCM R 1405 contended that the delay of even years can be condoned where the Court comes to the conclusion that the dismissal of appeal for such a technical reason would cause grave injustice to the accused. The learned counsel next contended that the evidence on the record does not inspire confidence as despite the availability of independent witnesses no one was associated to witness it, therefore, the learned trial Court did not appreciate the evidence on the record in accordance with the time honoured principles laid down by the superior Courts of the country from time to time for appraisal of evidence in such-like cases.
4. As against that, the leaned counsel appearing on behalf of the State contended that the evidence on the record is by all means sufficient to bring guilt home to the appellant as such the learned trial Court rightly convicted the appellant.
5. We have gone through the record and carefully considered the submissions of the learned counsel for the parties.
6. Before discussing the validity and viability of the arguments advanced by the learned counsel for the appellant for condonation of delay and maintainability of the instant appeal, we would like to discuss the merits of the case, because if no case for interference is made outs it would be just an exercise in futility to attend to the arguments so advanced about the condonation of delay.
7. A perusal of statement of P.W.3 reveals that the occurrence in this case took place at 8-30 p.m.
According to the testimony of this witness no witness from the public was called to witness the search as it was dark and no witness from the public was available. But according to the P.W.5 the occurrence took place at 8 a.m. In the presence of several persons but they were not made witness as they refused to become so. It cannot be cavilled with that minor discrepancies and even contradictions are to be ignored because those are apt to occur even in the statements of the witnesses who are perfectly honest because of difference in their power of observation, retention and reproduction or, because of any other lapse which can be termed as human. But the contradictions of the magnitude highlighted above are not of a nature as can be ignored in a case involving capital punishment. It would be misnomer to call them minor contradictions. These, contradictions to say the least, are too glaring to be ignored, moreso when acceptance of one statement would necessitate the rejection of another. This difference is not of dawn and day but of night and day and as such is incapable of being reconciled with each other. Whether P. W. 3 spoke the truth or P. W.5 spoke the truth is not capable of being determined from this record particularly when P.W. Naib Subaidar Saleem has been abandoned as being unnecessary.
8. Whether the conviction and sentence of imprisonment for life with a fine of Rs. One million can be sustained on such a quality and quantity of evidence. The answer to this question would be certainly in the negative because the Courts of law are under no compulsion to accept such a contradictory statement blindly and uncritically that too in a case involving capital punishment and it was probably in view of this important aspect that the Prophet Muhammad (peace be upon him), advised the Qaziz to ward of punishment with doubt and it is in this context that acquittal of ten guilty persons is considered better than the conviction of a person who is innocent by almost all the good laws of the world.
9. No doubt the principle of falsus in uno falsus in omnibus has been discarded since long by the superior Courts of the country and instead the principle of beating out the grain from the chaff has since long been the rule for appreciation case as it is not possible for us to decide as to whose statement is based on truth and who has spoken lie, therefor, we. Feel constrained to hold that this quality and quantity of evidence is not sufficient by stretch of imagination to hold the appellant guilty of the crime.
10. Now coming to the argument addressed about the condonation of delay and maintainability of appeal, suffice it to say that where dismissal of appeal for any such technical reason would cause the injustice of the gravest form, delay for any length of time as it was held in the case of Ziaur Rehman's v. The State (supra) has to be condoned especially when there is nothing on the record of this case that Superintendent Jail performed his Statutory duty as is envisaged in rule 90 of the Prison Rules by informing the prisoner regarding the period within which an appeal was to be preferred against the order.
11. For the reasons discussed above, we allow this appeal, set aside the conviction and, sentence recorded by the trial Court and direct the release of the appellant forthwith, if not required in any other case.