Akhtar Gul vs State

2013 Y L R 2694 [Peshawar]

Before Waqar Ahmad Seth and Musarrat Hilali, JJ

AKHTAR GUL alias NAVEED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.499-P of 2012, decided on 18th June, 2013.

Control of Narcotic Substances Act (XXV of 1997)---

----S.9 (c)---Possession of narcotics---Appreciation of evidence---Sample weighing ten grams--- Case property, non-production of---Charas weighing 25 kilogram was recovered from secret cavities of car being driven by accused---Trial Court convicted the accused and sentenced him to imprisonment for life---Validity---Police searched not only beneath the rear seat of car but also opened CNG tank, which was not possible without the help of mechanic or mechanical instruments and that too when police party did not know whether it was filled with gas or not and there was every possibility that it might blast---Time of arrest stated by one prosecution witness was 7 a.m., whereas time of occurrence was shown to be 7-30 a.m. and the same was clear on record that arrest was made prior to the occurrence---Contraband allegedly recovered was not produced in Trial Court, rather case property which was brought to Trial Court belonged to some other case---Recovery memo did not show any mention of F.I.R. number and only ten grams of sample was sent to Forensic Science Laboratory for analysis and accused could be held liable for having ten grams Charas---High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge, as there were contradictions and lacunas in prosecution case and accused was wrongly convicted---Appeal was allowed in circumstances.

Noor Alam Khan for Appellant.

Amirullah Chamkani for the State.

Date of hearing: 18th June, 2013.

JUDGMENT

MUSARRAT HILALI, J.---The appellant faced trial in case F.I.R. No.187 dated 22-4- 2011 registered under section 9(c) C.N.S.A. at Police Station Sarband, Peshawar and on conclusion he was convicted by learned Additional District Judge/Judge Special Court-III, Peshawar vide judgment dated 22-10-2012 and sentenced to imprisonment for life with a fine of Rs.100,000 or in default thereof to undergo six months' S.I., however, benefit of section 382-B, Cr.P.C. was extended to him.

2.The contents of F.I.R. reveal that on the eventful day at the relevant time the local police headed by Abid-ur-Rehman, Inspector (S.H.O.) made nakabandi on the crime spot when in the meanwhile motorcar bearing Registration No. JB-809-ICT/ Islamabad coming from tribal territory was signaled to stop. On query, the driver disclosed his name as Akhtar Gul alias Naveed son of Janab Gul resident of Maqsood Abad presently Railway Quarters, Peshawar Cantt. Search of the vehicle led to the recovery of 25 Kgs of charas pukhta from the secret cavities made in the CNG kit. 5/5 grams from each packet was separated for chemical analysis while the remaining stuff was sealed into another parcel, hence the case was registered against the appellant.

3.On conclusion of investigation, challan was submitted where the appellant was charge- sheeted to which he did not plead guilty and claimed trial. At the trial, the prosecution in order to substantiate its case produced four witnesses in all, which is as under:-- P.W.1 is Amir Muhammad, S.-I., who appeared as P.W.1 and deposed about registration of the case on receipt of murasila and thereafter handing over copy of F.I.R. to the investigating staff.

Bashir Khan, SI appeared P.W.2, who conducted investigation in the case and after receipt of copy of F.I.R., he proceeded to the spot, prepared the site plan Exh.P.W.2/1 at the instance of the complainant. On 23-4-2011, he produced the appellant before the Magistrate for obtaining police custody vide application Exh.P.W.2/2. He interrogated the accused and recorded his statement under section 161 Cr.P.C. He also drafted an application Exh.P.W.2/4 to MRA/ETO, Islamabad regarding the verification of the vehicle. He received the report of the Chemical Examiner Exh.P.W.2/5 and Exh.P.W.2/6. He recorded statements of P.Ws. under section 161, Cr.P.C. and after completion of investigation handed over the case file to the SHO concerned for further proceedings.

P.W.3 is Abid-ur-Rehman, Inspector (S.H.O.) who is complainant in this case has stated in respect of the occurrence by narrating facts leading to the Nakabandi at the venue of occurrence, emerging of the motor car, its seizure followed by search and recovery of charas, arrest of the appellant and separation of 5 grams each from the packets, preparation of the recovery memo and drafting of the murasila and application Exh.P.W.3/4 to FSL for obtaining expert opinion. On conclusion of investigation, submitted complete challan against the accused.

Sultan Sher, A.S.-I. appeared as P.W.4, who deposed that in his presence the complainant recovered 25 packets charas pukhta, which were kept in the secret cavities of CNG kit. On weighment each packet came out to be 1/1-K.g total 25 K.gs. The I.O. separated 5/5 grams for FSL while the remaining stuff was sealed into separate parcel vide recovery memo Exh.P.W.3/1.

4.On conclusion of prosecution evidence, the appellant was examined under section 342, Cr.P.C., wherein, he denied his involvement in the case and professed innocence, however, he neither opted to produce evidence in his defence nor wished to be examined on oath as required under section 340(2), Cr.P.C. The trial culminated in conviction and sentence of the appellant, which has now been questioned through the instant appeal.

5.Learned counsel for appellant contended that the appellant was convicted on highly doubtful and interested evidence of prosecution; that the prosecution failed to connect the appellant with the commission of alleged crime; that all the P.Ws. have contradicted each other with regard to recovery of contraband, the mode of recovery coupled with the arrest of appellant, which has made the prosecution story highly doubtful and concocted one. Learned counsel prayed for acquittal of the appellant by extending him the benefit of doubt.

6.As against that learned State counsel argued that the appellant was found in possession of 25 Kgs of charas, which is corroborated by the positive expert report; that the appellant failed to bring on record any evidence regarding the police having falsely implicated him with alleged crime. He was of the view that the P.Ws. were consistent with regard to the mode and manner of recovery from the appellant, which was rightly appreciated by learned trial Court resulting in conviction and sentence of the appellant.

We have heard learned counsel for the parties and gone through the record available before us.

7.In order to substantiate its case, the prosecution has examined four witnesses in all, who contradicted each other on material points, which requires to be discussed for the safe administration of justice. The record reveals that P.W.2 and P.W.3 were not in line with each other regarding the recovery of contraband as to whether it was recovered from the CNG tank or CNG kit or beneath the rear seat. According to P.W.2 the contraband was recovered from the front seat and some from CNG tank. It seems very strange and artificial story that the police party, without prior information, stopped the car, allegedly driven by the appellant, who did not resist at all. The police then not only searched beneath the rear seat but also opened CNG tank, which is not possible without the help of mechanic or mechanical instruments and that too when the police party did not know whether it was filled with gas or not and there was every possibility that it might blast. Strange enough the time of arrest as stated by P.W.3 is 7-00 a.m. whereas the time of occurrence is shown to be 7-30 a.m., which is clear on record that the arrest was made prior to the occurrence. The contraband allegedly recovered was not produced in the court rather the case property, which was brought to the trial Court, belonged to a case titled Khadi Khan v. State. The recovery memo does not show any mention of the F.I.R. number. The record reveals that only ten grams was sent to FSL for analysis, however, as per judgment of the Hon'ble Supreme Court in the case of Ameer Zeb v. The State, the appellant could only be held liable for having ten grams charas.

8.Thus, on the basis of above contradictions and lacunas in the prosecution case, the learned trial Court has wrongly convicted and sentenced the appellant.

9.Accordingly, this appeal is allowed, the conviction and sentence of the appellant is set aside. He is acquitted of the charge levelled against him and be set at liberty forth, if not required in any other case.

Hereinabove are the reasons for our short order of even date.

MH/420/P Appeal allowed.