FAWAD AHMED and 3 others vs The STATE

' WAQAR AHMAD SETH, J.---Convict appellants Fawad Ahmed son of Muhammad Riaz, Azhar Iqbal son of Muhammad Iqbal, Aziz-ur-Rehman son of Khursheed and Huda Ali son of Hunar Mand were tried by learned Additional Sessions Judge-II/Judge Special Court, Abbottabad under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and on conclusion of trial, they were convicted and each of them was sentenced to suffer six months' R.I. With a fine of Rs,1000 or in default of fine to further undergo one month S.I. Benefit of section 382-B, Cr.P.C. Was, however, extended to them.

2. Briefly stated facts of prosecution case are that on 13-1-2009 at 1025 hours appellant Fawad was driving Motorcar No,D-2071/Peshawar, appellant Azhar Iqbal was sitting on the front seat while appellants Azizur-Rehman and Huda All were sitting on the rear seat when the local police stopped the vehicle and on search chars weighing 2000 grams consisting of two slabs and 28 bottles of liquor were recovered from the diggi of the vehicle.

3. After completion of investigation challan was put in Court and trial commenced. At trial, charge was framed against the accused. The prosecution in support of its case examined five witnesses.

Statements of accused under section 342, Cr.P.C. Were recorded wherein they refuted the charges levelled against them, however, they neither opted to be examined on Oath nor produced defence evidence.

4. On assessm ent of evidence, the appellants were found guilty and were convicted and sentenced as mentioned above.

5. Learned counsel for appellants argued that prosecution has failed to prove its case against appellants beyond any shadow of doubt and trial court did not consider contradictions in the statements of P.Ws..It was argued that none from public was associated to witness the alleged recovery despite being the fact that it was a thickly populated area. It was argued that the alleged narcotics contraband was recovered from the diggi of the vehicle but there is nothing on record that the narcotics contraband belonged to whom out of four appellants. It was argued that without bringing substantive evidence on record qua ownership of the narcotics contraband the learned trial Court was not justified in convicting the appellants. Learned counsel while concluding his arguments submitted that appellants are entitled to be acquitted by giving them benefit of doubt.

6. On the contrary, learned State counsel while opposing arguments of appellants contended that it has been established on record that accused being peddler of narcotics were caught red handed by the local police and trial court has considered the entire evidence in its true perspective where no material discrepancies or contradictions were noticed. The prosecution story is supported by statements of P.Ws. He concluded that accused have committed heinous crime of moral turpitude and deserve no leniency. It was prayed that sentence awarded by the trial court meets the ends of justice, which may be maintained.

7. Arguments heard and record perused.

8. Admittedly, the narcotics contraband was recovered from the diggi of the vehicle and there is nothing on record that who, out of four, was owner of the same and who placed the same in the diggi. None from public was associated to either witness the alleged recovery of narcotics contraband or the recovery memo. There is unexplained delay of 15 days in sending the samples of contraband for analysis to, which has created serious doubts regarding the report of F.S.L. Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001 provides as under:-- "4. Despatch of sample for-test or analysis.

(1)

(2) Samples may be dispatched for analysis under the cover of a Test Memorandum specified in Form-I at the earliest, but not later than seventy-two hours of the seizure. The envelope should be sealed and marked "Secret Drug Sample/Test Memorandum"

9. In case of Muhammad Akram v. The State reported as (2009 SCMR 23), it was held as under:- "Benefit of doubt---Principles---For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right".

10. There is also no evidence on record that the alleged contraband recovered from the vehicle was the property of convict-appellants. It appears that local police has falsely involved the accused in the instant case and that without bringing substantive evidence on record qua ownership of the contraband would not warrant conviction of appellants. In the facts and circumstances of the case, the prosecution has not been able to prove its case against appellants beyond any shadow of doubt and by extending such benefit the convict-appellants deserve acquittal from the charge.

11. Consequently, this appeal is allowed. Conviction and sentence of appellants recorded by the trial court are set aside and they are acquitted of the charge. The appellants are on bail and they shall stand discharged of the liability of bail bonds.