' IJAZ-UL-HASSAN, J.--- The appellants Karim and Shah Nawaz were tried by learned Sessions Judge/Judge, Special Court, Nowshera alongwith acquitted co-accused Sailab, for an offence punishable under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 read with sections 6/7/9 of the Control of Narcotic Substances Act, 1997. At the conclusion of trial, vide judgment, dated 30-8-2002, the appellants were convicted under section 9 of the Act (ibid) and sentenced to life imprisonment in addition to payment of Rs,10,00,000 each as fine and in case of failure to pay the fine they were ordered to further undergo additional imprisonment for five years each. Benefit of section 382-B, Cr.P.C. Was also extended to them. Sailab co-accused was, however, acquitted by extending him the benefit of doubt. The appellants have challenged their conviction and sentence through instant Criminal Appeal No,334 of 2002.
2. The prosecution story in brief is that pursuant to spy information stated to have been received by complainant Khursheed Khan, S.H.O. Police Station, Pabbi, on 9-11-1998 that huge quantity of heroin will be transported from Jamrud to Punjab through Truck No,PRF-8250, a police party consisting of the complainant, Mumtaz Khan, Feroz Khan, A.S.-Is. And other police officials was constituted. The police party conducted Naka Bandi at G.T. Road near College Chowk Pabbi. In the meanwhile, at about 8-10 p.m. The said truck was sighted coming from Peshawar side. The truck was stopped.
Driver of the truck disclosed his name as Karim son of Zulfiqar and the person sitting with him on front seat introduced himself as Shah Nawaz son of Abid Gul. The search of the truck led to recovery of 33 packets of heroin from its secret cavities. Each packet contained one kilogram heroin. One gram from each packet was separated for chemical examination and the remaining was sealed in different parcels. Both the occupants of the truck were arrested and a case was registered against them under the aforesaid sections of law.
3. The prosecution in order to prove its case produced five witnesses in all. S.-I. Sardar Bahadur (P.W.1) the then S.H.O. Police Station, Pabbi, submitted complete challan against the accused in Court. A.S.-I. Abdul Bais (P.W.2) on receipt of Murasila (Exh.P.A./1), incorporated the same in F.I.R.
(Exh.P.A.). Rehmat Ali (P.W.3) owner of Truck No,PRF-8250 statedly sold the same to Sailab son of Duran Khan resident of Pabbi, A.S.-I. Feroz Khan (P.W.4) is marginal witness to recovery memos.
(Exh.P.B. And Exh.P.B./10). S.-I. Khursheed Khan (P.W.5) conducted investigation of the case, apprehended the accused-appellants and claimed to have recovered 33 kilograms of heroin from the secret cavities of Truck No,PRF-8250. The appellants in their statements recorded under section 342, Cr.P.C. Denied the prosecution allegations and stated that in fact they were arrested from their village Pabbi; nothing was recovered from their possession and the heroin was planted upon them.
They did not examine themselves on oath as required under section 340(2), Cr.P.C.' and also did not examine any person in defence.
4. The learned trial Judge, upon' examination of the material on record adjudged the appellants guilty of the offence and convicted and sentenced them as mentioned above.
5. Mr. Javed A. Khan, Advocate for the appellants, contended inter alia, that there is no tangible evidence on record to implicate the appellants with the commission of crime as they were not found in direct conscious possession of the narcotics in question; that the story regarding apprehension of the truck during Naka Bandi and recovery of heroin from its secret cavities, has been manufactured by the police for no other reason but to earn credit; that the prosecution story is full of discrepancies and material contradictions and that the requirements of section 103, Cr.P.C.
Had not been complied with in this case and despite advance information and availability of independent witnesses, the same were not associated with the recovery proceedings.
6. Conversely, Mr. Akhtar Naveed, learned Deputy Advocate-General, supported the impugned judgment and maintained that evidence of the prosecution is very convincing and that the police witnesses had no enmity or grudge or motive to falsely implicate the appellants in this case. He added that huge quantity of heroin had been recovered from the secret cavities of the truck and the apprehension of the appellants at the spot is a strong proof supported by other evidence. He further contended that no material discrepancies and contradictions are found in the statements of prosecution witnesses. Rather they are consistent regarding the time and place of occurrence and the recovery of the articles and the manner in which it has been effected. Though all these witnesses were subjected to lengthy cross-examination but nothing could be gained by the defence to discard their statements. Concluding the arguments, he submitted that non- association of the witnesses from the public is not sufficient to affect the prosecution case as people from public are reluctant to become witnesses especially in narcotic cases.
7. The prosecution in order to prove the factum of apprehension of the appellants during Naka Bandi and recovery of heroin from the secret cavities of Truck No,PRF-8250, has produced two police officials namely A.S.-I. Feroz Khan (P.W.4) and S.I. Khursheed Khan (P.W.5). We have closely examined the statements of these witnesses and we find ourselves in agreement with learned counsel for the appellants that their statements are full of contradictions, infirmities and discrepancies and thus, the learned trial Judge had no legal justification to place implicit reliance on their statements and make the same basis for conviction of the appellants. The cross- examination of P.W.4 and P.W.5 would clearly reveal that investigation has not been carried out properly and fairly and obliging concessions have been extended to the appellants which has totally smashed the prosecution case. Each and every aspect of the prosecution case is highly doubtful and the requirements of section 103, Cr.P.C. Were flagrantly violated in proof of the alleged recovery and despite prior information and availability of independent witnesses the same were not associated with the recovery proceedings. The departure from the police station has not been shown in the daily diary. It is also admitted that the truck was apprehended at night and there was no electrification. The spot is thickly-populated area. The shops were open and many persons were present but they were not asked to associate with the recovery proceedings. It may be permanently mentioned here that P.W.4 in his cross-examination stated that the weight stones were available with the Investigation Officer in his investigation bag whereas P.W.5 totally contradicted the same and stated that the scale for the weighment of contraband was arranged by A.S.-I. Mumtaz Khan from a nearby shop. This variation in the statements of witnesses has created doubt in our mind regarding recovery proceedings. The Courts of law are under no compulsion to accept such a contradictory statement of P.Ws. Blindly and that too in a case involving capital punishment. If the foundation of the case has been demolished then the structure built on the said building shall also fall down on the ground. It is settled law that the onus to prove guilt is always on the prosecution which is to prove that it is the accused person who has perpetrated the offence and thus the prosecution is to independently discharge those onus irrespective of any plea taken by the accused. The mere fact that the police witnesses had no enmity or grudge or motive to falsely implicate the accused persons, by itself, is not a strong circumstance to hold that whatever has been alleged by the prosecution should be implicitly relied upon without asking for supporting evidence. This circumstance does not absolve the prosecution of its initial duty to prove its case beyond a pale of reasonable doubt. 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 the appellants on such tainted and doubtful evidence. Mst. Yasmeen v. The State 2003 YLR 2675 (Pesh.).
8. Having heard the arguments of learned counsel for the parties with reference to the material on file, we agree with learned counsel for the appellants that the truck in question was parked in Pabbi where the appellants as well as Sailab acquitted co-accused are living permanently and the truck was taken into possession from Pabbi and the entire story regarding apprehension of the truck at G.T. Road during Naka Bandi and resultant recovery of heroin from its secret cavities, has been manipulated for reasons not far to seek. We are satisfied that the appellants were not found in direct conscious possession of the heroin in question and had no concern with it.
9. For the foregoing reasons benefit of doubt is extended to the appellants, the appeal is allowed, conviction and sentence awarded to the appellants are set aside and the appellants are acquitted of the charge levelled against them. The appellants shall be released forthwith if not required in any other case.
10. Above are the reasons for our short order, dated 17-9-2003.