' NASIRUL MULK, C.J.--- The appellant Minhaj was convicted by the Additional Sessions Judge, Peshawar on 11-5-2004 under section 9 of the Control of Narcotic Substances Act, 1997 (C.N.S.A.) and sentenced to 14 years' R.I. And fine Rs, one lac, in default of payment thereof, to suffer six months' S.I. The appellant was also granted the benefit of section 382-B, Cr.P.C. He has through this jail appeal, called into question his conviction and sentence.
2. According to the first information report, the police of Police Station Kabuli, Peshawar, had received information about the smu ggling of Charas in a Bus from the tribal area to Punjab. A police party, led by Amanullah Khan, S.-I. Of the police station waited for the Bus at Soikarno Square, Khyber Bazar, Peshawar. When the Bus came along, it was stopped and a man whom the police suspected was apprehended and on his pointation Charas concealed in handles of "springs", weighing 9.500 Kgs. Was recovered. The man apprehended was the appellant. He was arrested and a case under the C.N.S.A. Registered at the police station on 13-2-2002. Sample from the narcotics was separated and sent to the Forensic Science Laboratory (FSL) for examination. The report of the FSL was in the positive.
3. After completion of investigation, challan was submitted before the trial Court.
4. The accused did not plead guilty to the charge framed against him. The prosecution produced three witnesses in all Khan Raziq Inspector (P.W.1) submitted the challan before the trial Court. He was the S.H.O. Of the police station at the relevant time. The Investigating Officer, Amanullah, who has also arrested and recovered the narcotics from the accused testified as P.W.2 and the marginal witness to the recovery memo. (Exh.P.C.) Muhammad Israr, H.C., was examined as P.W.3.
5. The learned counsel for the appellant and the Deputy Advocate-General were heard and the evidence gone through.
6. According to the prosecution story, the accused was travelling in the Bus. Although there is no evidence on the file regarding the other passengers in the Bus, but being a public transport, which admittedly does not belong to the appellant, it does not require much imagination to conclude that there would have been passengers in the Bus. Both the I.O. And the marginal witness stated that the narcotics were recovered from the roof top of the bus. They also alleged that the appellant was caught hold of on account of suspicion and it was he who owned the narcotics. The testimony of the two witnesses regarding the disclosure of the appellant of ownership of the narcotics, is inadmissible in evidence for two reasons. Firstly, the same is hearsay and secondly the statement made by an accused to the police cannot be proved, much less an oral statement. The narcotics were recovered from the roof top of the bus and there is no evidence whatsoever to show that the same belonged to the appellant. Neither the cleaner nor the bus driver had been examined in support of allegation that the bundles from which the narcotics were recovered, were owned by the appellant.
7. In view of the above discussion, the prosecution has failed to establish that the narcotics so recovered belonged to the appellant. The appeal is, therefore, allowed. The conviction and sentence of the appellant are set aside and he is acquitted of the charge framed against him. He be set at liberty forthwith if not required in any other case.