AKHTAR ALI vs THE STATE,

' MUHAMMAD ALAM KHAN, J.--- Akhtar Ali son of Taj Muhammad resident of Jalala Jadeed Tehsil and District Mardan appellant has filed the instant appeal under section 410, Cr.P.C. Read with section 48 of the Control of Narcotic Substances Act, 1997 against the order of learned Additional Sessions Judge-II, Swabi/Special Court dated 8-3-2008 in Case No,195/HC of 2006, vide which the appellant was convicted and sentenced to five years rigorous imprisonment and a fine of Rs,20,000 and in default of payment of fine the appellant has to undergo further six months' S.I., benefit of section 382-B, Cr.P.C. Was however, extended to the appellant. Nokia Mobile set and a purse along with Rs,1,040 was also recovered from Akhtar Ali which was later on handed over to the appellant on Superdari and after the trial was ordered to be permanently returned to the appellant. The Motorcycle No,6510-MAX which was allegedly used for carrying five kilograms Charas was confiscated to the State.

2. Briefly narrated the facts of the case gleaned from the F.I.R. No,446 dated 25-7-2006 Police Station Topi, District Swabi registered under section 9 of the Control of Narcotic Substances Act, 1997 are, that the complainant Qaiser Ali Khan, 5.-I. Along with subordinate staff was on routine checking near Shaheed Baba Check Post, in the meanwhile Motorcycle No,MAX-6510 which was driven by' Akhtar Ali appellant was coming from Topi side which was intercepted for checking. It was alleged that on a search from the secret cavities of the motorcycle, the checking party recovered five packets Charas each, weighing one Kg. From each packet five grams was separated and sealed the same in separate parcel for the purpose of chemical analysis. The remaining quantity of Charas was sealed separately. On the spot besides the arrest of accused Akhtar Ali, the motorcycle was also taken. Into possession.

3. After completion of investigation, complete challan was put in Court and charge under section 9 of Control of Narcotic Substances Act, 1997 was framed against the appellant to which he did not plead guilty and claimed prosecution produced five witnesses P.W.1 Haji Fida Younas Khan, S.-I., Qaiser Ali Khan (complainant) P.W.2, Bakht Zaman IHC P.W.3, P.W.4 Asfandiyar H.C. No,387 and P.W.5 Hassan Bacha, S.-I. Police Post Parmoli. After the close of prosecution evidence, statement under section 342, Cr.P.C. Of the appellant was recorded in which the appellant denied the prosecution allegation. However, he did not opt to be examined on oath and also did not produce defence.

4. The learned Additional Sessions Judge-II, Swabi/Special Court after hearing the D.P.P. For the State and considering evidence on the record convicted the appellant as stated above. Hence, the present appeal.

5. Mr. Suhail Akhtar learned counsel for the appellant submitted that the prosecution has failed to prove the case against the accused-appellant beyond any reasonable shadow of doubt. It was submitted that the story with respect to recovery of five kilograms Charas from the motorcycle cavity is unbelievable especially when neither this fact is proved by the prosecution nor the motorcycle was ever produced before the trial Court in order to substantiate the case of the prosecution, it was also argued that the alleged sample was sent to the Forensic Science Laboratory after a considerable delay. It was submitted that the alleged contraband was recovered on 25-7-2006 which was received in Laboratory on 28-7-2006 and it is shrouded in mystery that during this period in whose custody the alleged contraband remained. It was also argued that it is not proved from the record of the case that who took the contraband to the laboratory. Reliance was placed in this respect on the case of (1) Iqbal Bibi v. State 2000 PCr.LJ 1812, the case of Ansarul Islam v. State PLD 2005 Kar. 146 and the case of Fida Muhammad v. State 2005 PCr.LJ 1278.

6. Miss Hamsheeda Begum, Advocate learned counsel appearing for the State submitted, that the prosecution has proved the charge against the appellant beyond any reasonable shadow of doubt, no objection was taken by the accused/appellant to the non-production of motorcycle and that there was no enmity of the complainant with the accused to falsely implicate him in the instant case. Reliance in this respect was placed on the case of Muhammad Ashraf v. State 2006 PCr.LJ 1413 and the case of Nasrullah v. State 1998 PCr.LJ 2086.

7. We have given our anxious consideration to the arguments of the learned counsel for the parties and perused the record minutely with their assistance. It is on the record that the occurrence has taken place at 12-00 noon on 25-7-2006 on the main road known as Topi Swabi Road which is a busy road always plied by heavy traffic, but none was associated with the recovery proceeding or produced during the trial, the contraband was allegedly recovered from the secret cavities of motorcycle, but the motorcycle has not been produced before the Court during the trial, nor exhibited, which has direct nexus with the edifice of the prosecution story. Furthermore the alleged story about the possession of five kilograms of contraband from secret cavities of a small vehicle does not appeal to common sense and the same is unbelievable. The late sending of alleged sample to the Forensic Science Laboratory is another important defect in the prosecution story and that too, is shrouded in mystery, that in whose possession the alleged sample remained from A 25- 7-2006 till 28-7-2006 and its dispatch to the Forensic Science Laboratory which was received on 28-7-2006. This fact is also not proved from the record, that as to who took the sample to F.S.L.

Furthermore the evidence produced by the prosecution is full of contradictions which makes the case of the prosecution doubtful and any doubt if arises in the links of the chain of prosecution story, the benefit of the same will go to the accused. The case-law cited by the State Counsel has no relevancy to the facts of the case.

8. In view of the facts and circumstances of the case appeal, set aside the conviction and sentence of the appellant recorded by the trial Court and acquit the appellant from the charge levelled against him He be set free forthwith, if not required in any other case.

9. Above are the reasons for our short order dated 9-7-2008.