ASFANDIYAR vs THE STATE

' TARIQ PARVEZ KHAN, C.J.--Appellant namely, Asfandyar is accused of passing 125 KG & 300 grams Charas which were recovered from secret cavities of the Bus bearing Registration No,LOT-1726 driven by him on 11-1-2005 at 4 pm.

2. Main witness to the recovery is Ikramullah Khan Inspector who appeared as P.W.4 and to support the recovery of narcotics, prosecution examined Muhammad Zaman (P.W.5) who was then driver with the Anti-Smuggling Unit Peshawar. A case was registered by the customs staff and sent up for trial to the Court of learned Additional Sessions Judge -IX Peshawar who took cognizance as Special Judge under the C.N.S.A., resulted into judgment dated 28-11-2008 whereby appellant has earned life imprisonment under section 9 C.N.S.A. And to pay fine of Rs, One lac or in default to undergo further six months' S.-I. With benefit of section 382-B, Cr.P.C.

3. We have heard learned counsel for the appellant who argued that there are defects in investigation, that the real culprit was one Lajbar who was let off by the custom's staff and present appellant has been falsely implicated. It is argued that Muhammad Amin who was senior most person in the police party which was deputed to intercept the vehicle in question has appeared as P.W.2 but he did not participate in the investigation during the process of alleged recovery though allegedly present on the spot.

4. Counsel appearing for the State has, however, argued that huge quantity of Charas has been recovered from the vehicle under the control of the appellant who is the sole accused.

5. In this case appellant has opted to appear as his own witness under section 340(2) of the Cr.P.C.

And has also produced one Tehsil Ullah as D.W.1 who is owner of the vehicle said to be used for carrying the narcotics.

6. In this case investigation has been conducted by the custom's staff and their procedure is not as is generally conducted by the staff of A.N.F. Or regular police.

7. Despite number of judgments delivered by this Court and the Apex Court, investigating Officer of the Custom's staff do not take samples from each packet of the narcotics and what they do is that they mix A all the alleged recovered narcotics and prepare three samples as in the instant case and only very meagre quantity is sent to the Chemical Examiner for report, as in this case out of 125.300 Kgs. a sample of just 10 grams was sent.

8. Muhammad Amin who was the senior most person present on the spot has disassociated himself from the search and recovery by sating that by the time of inspection of the bus he remained present in the Government vehicle and ordered his subordinate staff to intercept the bus. When asked as to what happened to the passengers sitting in the bus, his reply was that he is unaware as to what happened to the passengers.

9. Ikramullah (P.W.4) and Muhammad Zaman (P . W .5) though supported the recovery but none of them has given evidence as to wherefrom actually the recoveries were made i.e, the locale of cavities in the bus.

10. A passenger bus bound for Karachi must have two drivers for distance which is very long and must have a conductor. In this case we fail to understand as to how only one driver that too without a conductor was carrying passengers because there is no evidence to this effect.

11. It is throughout the case of the appellant that the driver of the vehicle was Lajbar who was in fact driving the vehicle and appellant being jobless, his services were hired but as a conductor of the vehicle. This version is not only suggested to the prosecution witnesses but as the case of the appellant on the very day of the occurrence where he gave a detailed statement to the custom's staff. He has appeared as his own witness under section 340(2) Cr.P.C, on oath and in support has examined Tehsinullah and appeared as D.W.1.

12. Wherever there are two versions and the version .Set up by the defence is probable, Courts are invariably inclined to follow the defence version.

13. From the points above given in detail, we are of the view that case of the prosecution is doubtful to the extent of B presence of Asfandyar only and also to the extent as secret cavities were in his knowledge or not. He is, therefore, extended the benefit of doubt. As such this appeal is allowed, conviction and sentence of the appellant are set aside and he is acquitted of the charge. He be set a liberty forthwith, if not required in any other case.