MIAN SHAKIRULLAH JAN, C.J.----Appellant Mst. Yasmin was booked under section 9(c), C.N.S. Act by the Police Station Hashtnagri, Peshawar, vide F.I.R. No.447, dated 29-5-2002 for having in her possession 5 K.Gs. Of Charas. She was then tried by the learned Additional Sessions Judge/Judge Special Court-V, Peshawar and the same ended in her conviction and was sentenced to 4 years'
R.I. With a fine of Rs.15'000 or in default, three months' S.I. Now she has impugned her conviction through the instant appeal.
2. Brief and relevant facts are that appellant was allegedly apprehended by Muhammad Riaz, S.H.O., Police Station Hashtnagri, on 29-5-2002 at 12-15 hours on G.T. Road close to the General Bus Stand having in her possession, a shopper containing 5 K.Gs. Of Charas. After necessary investigation, the charge-sheet was filed in the trial Court.
3. At the trial, to prove its case, the prosecution examined three witnesses in all, out of whom P.W.1 Muhammad Riaz, S.-I., is the Investigating Officer who has secured the Charas from the appellant and completed the investigation including the collecting of the Expert opinion while P.W.2 Gohar Sultan, lady constable, is the marginal witness to the recovery memo.
4. We have heard the learned counsel for the parties and have gone through the record.
During the course of cross --examination, the Investigating Officer was unable to explain as to how and why the seal on the parcel put by him was of "Z.A." while his own official seal is inscribed as "M.R.". Further when confronted with the number of seals on the parcel, he replied that if more or less than three seals, which he had put on the parcel, are found thereon, then it would not be the same parcel. The trial Court has recorded the observation wherein the property was found in loose form and not in a sealed parcel.
5. The lady constable has given yet another interesting statement which may be reproduced as follows:-- "It is correct that the sample was not taken in my presence and we were sitting in the other room after reaching police station while the whole proceedings were conducted in the room of the S.H.O."
From the above disclosure, the entire investigation conducted has become suspect.
Not only because the taking of the sample from the whole lot has become doubtful but the very recovery memo. Attested by the witnesses is equally doubtful and the most important aspect of the matter is that due to the above dishonesty on the part of the Investigating Officer, the important link between the sample if any taken from the whole lot and its receipt in the Laboratory and the opinion of the Expert thereon, is missing and the entire exercise thus carried out has smashed down the entire superstructure of the prosecution case.
6. The plea of the State Counsel that no mala fide could be attributed to the police is not based on the settled and sound judicial principles and cannot be accepted to base a conviction of a lady on such tainted and doubtful evidence.
7. For the above reasons, therefore, while accepting this appeal, the conviction and sentence recorded by the trial Court stand set aside and the appellant is acquitted of the charge. The appellant be set at liberty forthwith, if not required in any other case.