SHAHZAIB vs THE STATE
This criminal appeal challenges the conviction and sentence of the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997, for the alleged transportation of 13 kilograms of charas, resulting in life imprisonment and a fine. The core legal question was whether the prosecution proved its case beyond a reasonable doubt in light of material contradictions, concessional statements by prosecution witnesses, and unexplained delays in sending samples for chemical analysis. The Peshawar High Court held that the prosecution miserably failed to establish the charge due to the unreliable and concessional testimony of the prosecution witnesses. Consequently, the court allowed the appeal, set aside the conviction and sentence, and ordered the immediate acquittal and release of the appellant. The key principle laid down is that where prosecution witnesses make statements favorable to the defence or riddled with contradictions, and essential safeguards like safe custody and timely dispatch of forensic samples are not established, the benefit of the doubt must be extended to the accused.
- Whether contradictions and concessional statements by prosecution witnesses are sufficient to warrant the acquittal of an accused in a narcotics case?
- Does an unexplained delay in sending forensic samples for chemical analysis vitiate the prosecution's case?
- Whether the conviction under Section 9(c) of the Control of Narcotic Substances Act can be sustained when the recovery witnesses fail to support the prosecution version?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 382-B, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
' ABDUL AZIZ KUNDI, J.---Shah Zaib son of Attaullah resident of Seri Bahlol, convict-appellant in case No,3/Spl: of 2009, arising out of F.I.R. No,1075 dated 31-12-2008 of Police Station, Takht Bahi, for offence under section-9 C.N.S.A. Has been convicted by Additional Sessions Judge-I, Takht Bhai, vide his judgment dated 20-6-2009 under section 9-C, C.N.S.A. To undergo life imprisonment with payment of fine of Rs,20,000 or in default or such payment to undergo further two years' R.I. Benefit of section 382-B, Cr.P.C. Was extended to him.
2. The prosecution case as per F.I.R. No,1075 dated 31-12-2008 registered at Police Station, Takht Bhai, District Mardan, on the basis of murasila of Khan Khel Khan Inspector/S.H.O., is that on prior information about smuggling of "charas" through Saru Shah Road, the said Inspector on the passage going to Sardar "killary" Saru Shah Road, established picket when in the meantime a flying coach stopped there and a young boy having a plastic bag on his shoulder deboarded and on seeing the police party tried to make good his escape on seeing the police party, but on being chased he was overpowered and 13 packets "Pukhta Charas" were recovered on search of the bag, which was weighed and came to be 13000 grams. Five grams from each packet were separated for chemical analysis and the person overpowered disclosed his name as Shah Zaib son of Attaullah, who further disclosed that the "Charas" was given to him by Messrs Mubeen and Shamussdin of Bara for onward transportation to Karachi. After completion of investigation, challan was put in court and the accused was formally charged on 4-4-2009 who pleaded not guilty and claimed trial.
3. In support of prosecution case, prosecution produced Hakeem Khan A.S.-I. As (P.W.-1) who had registered F.I.R. Exh.PA on receipt of murasila and admitted the same to be correct and bearing his signature. (P.W.-2) Fazal Mabood IHC, being a marginal witness to the recovery memo. EX P.W. 2/1 deposed that he is a marginal witness to the said recovery memo, vide which the seizure officer recovered 13000 grams "charas" comprising of 13 number packets from the convict -appellant and also identified the "charas" as Ex-P-1. In his cross examination, this witness has left nothing for sustaining a conviction and over-all analysis of his statement would show as if he was a defence witness. Niaz Muhammad Khan S.-I., the Investigating Officer, recorded his statement as (P.W.-3) and then was examined Khan Khel Khan SI, the Seizing Officer. The convict-appellant recorded his statement under section 342 Cr.P.C. But did not wish to be examined on oath, nor produced any evidence in defence.
4. The learned Additional Sessions Judge-I, Takht Bhai, on conclusion of trial found the convict- appellant guilty of the offence of transportation of 13 KGs of "charas" and accordingly convicted him for offence punishable under section-9 (c) CNSA and sentenced to life imprisonment with payment of fine of Rs,20,000 or in default to undergo further two years' R.I.
5. The learned counsel for the convict-appellant argued that in view of the material contradictions in the statements of Fazal Mabood (P.W.-2) and Khan Khel Khan S.-I. (P.W.-4) and departure from the case as set up in the F.I.R., the prosecution has miserably failed to prove the case against the convict-appellant; that the samples for chemical analysis were sent to Forensic Science Laboratory with considerable delay of more than 10 days and that too without any explanation for such delay as well as keeping of the said samples in safe custody. The learned counsel also referred to various parts of the statement of (P.W.-2) Fazal Mabood IHC, who has made glaring concessions in favour of convict-appellant, then facing trial, and as observed in the earlier part of this judgment.
6. Learned State counsel half heartedly opposed the appeal as he could not controvert the arguments of the learned counsel for the convict-appellant in view of the evidence recorded in the case.
' We have considered the arguments on either side and gone through the record of the case.
7. We feel extremely sorry for the manner in which the statements, particularly statement of (P.W.-2) Fazal Mabood IHC was recorded. From the very start, it was the prosecution case that when A the flying coach stopped, a young boy having a plastic bag on his shoulder
8. The oral analysis of the entire record of the case, has led us to conclude that the prosecution has because of the concessional statements of P. Ws. Miserably failed to prove the charge against the convict-appellant and thus while allowing this appeal, we set aside the conviction and sentences of the appellant recorded by Additional Sessions Judge-I, Takht Bhai, through his judgment dated 20-6-2009 and acquit the convict-appellant of the charges. He be set free immediately, if not involved in any other case.