IMTIAZ KHAN and another vs The STATE

MUSARRA T HILALI, J. This criminal appeal is directed against the judgment dated 30.11.2017 of the learned Judge, Special Court (CNS), Peshawar delivered in case FIR No.07 dated 23.02.2013 under section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station ANF, Kohat, whereby both the appellants have been found guilty of the charge and sentenced to imprisonment for life with fine of Rs.1,00,000/- each or in default whereof to further undergo six months' S.I. Benefit under section 382-B, Cr.P.C. was, however , extended to both the convicts-appellants.

2. Brief facts of the case are that complainant of the case, namely , Mushtaq Ahmad, Sub-Inspector , Police Station, A.N.F Peshawar had received a spy information about the trafficking of huge quantity of narcotics through truck bearing registration No.E7063/Peshawar . In order to foil the bed, he arranged a nakabandi. In the meanwhile, the truck in question reached there, which was signaled to stop. The driver disclosed his name as Imtiaz Khan while the person sitting with him on front seat was identified as Said Wali Khan. On search of the truck, 454 packets of charas garda and 10 packets opium consisting of small tikkies in each packet, wrapped in different color wrappers were recovered. From the recovered charas as well as opium, samples of 10/10 grams were taken from each packet for the purpose of laboratory analysis vide parcels Nos.1 to 445 and 455 to 565 whereas rest of the narcotic was sealed in separate parcels. Pursuant to ibid recovery , both the appellants were booked in the case FIR, referred to above.

3. On completion of the investigation, challan was put in court, which indicted the accused for the offence to which they pleaded not guilty and claimed trial. In order to prove its case against the appellants, prosecution examined 05 witnesses in all whereafter statements of the accused were recorded under section 342, Cr.P.C., wherein, they professed their innocence. On conclusion of the trial, the learned trial court found both the appellants guilty of the charge and while recording their convic tions sentenced them as mentioned above. Both the appellants have impugned their convictions and sentences through this appeal.

Arguments heard and record gone through.

4. In order to prove its case, the prosecution examined as many as 05 witnesses. The accused-appellants were examined under section 342, Cr.P.C. wherein they denied the prosecution allegations levelled against them and made counter allegations, however , no evidence was led in defence. A short summary of the evidence adduced by the prosecution is as under:- PW-1, Mushtaq Hussain was the Moharrir of Police Station, A.N.F , Peshawar during the days of occurrence. He gave detail account of case property and the samples separated from the recovered stuff and also recorded his statement.

PW-2, Mushtaq Ahmad, Inspector on receipt of murasila incorporated it into FIR, laid nakabandi and also made search of the truck in Police Station, weighed the recovered contraband and separated samples. Similarly , PWs-3 and 4 are marginal witnesses to some of the recovery memo while PW-5, Mushtaq Ali, ASI took the samples to the F.S.L. During re-examination, the witness produced the case property sealed in parcels Nos.21 and 22 along with truck, CNIC and driving license of accused, Imtiaz and the truck used in the commission of offence and its registration.

5. In criminal cases, the trial Court is duty bound to take precaution of framing charge with sufficient precision and particularity in order to ensure a fair trial. In the instant case, the joint charge framed against the accused- appellants is vague inasmuch as it does not specify as to who was driving the truck at the relevant time and who was sitting on the side seat, besides the examination of accused under section 342, Cr.P.C. is also not a mere formality but it embodies the fundamental principle of the doctrine of Audi Alteram Partem , therefore, any evidence whether it is direct or circumstantial, cannot be used against the accused unless it has been confronted to him during the course of examination under section 342, Cr.P.C. and a fair opportunity is provided to the accused to explain the same, or to adduce defence, if any .

6. In the instant case, we find a peculiar situation, where instead of confronting the accused-appellants with the relevant incriminating evidence/case property , they were confronted with the proce dure adopted on the spot, while no case property was produced and exhibited before the trial court during the course of examination of accused- appellants, so therefore, the evidence used against the accused-appellant on that account was incomplete.

8(sic.) Another important aspect of the case is that the samples separated from the stuff recovered from the truck allegedly driven by at the accused-appellants were sent to a laboratory situated in Rawalpindi. Under rule 4, a reasonable quantity of samples from narcotic drugs, psychotropic substances or the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the officer-incharge of nearest Federal Narcotic Testing Laboratory , depending upon the availability for test facility , either by insured post or through special messenger duly authorized for the purpose. In the instant case, PW-2 on 23.02.2013 vide Ex.PW 2/7, sent the samples separated from the recovered contraband to the laboratory situated in Rawalpindi. There has been no reason recorded on the part of the prosecution that despite having a full-fledged upto date laboratory in Peshawar why the samples were sent to Rawalpindi for test and analysis, even if it is presumed that the rule is construed as directory , it does not mean that it needs not be complied with at all. The prosecution cannot be permitte d to ignore such provision of law completely without any reason. The samples were dispatched on 23.02.2013 which were received by the FSL Rawalpindi on 25.02.2013, besides the report was prepared and signed by the persons not qualified for the purpose under the ibid Act. No CDR data has been collected by the prosecution to have established the link of accused-appellants with drug traf fickers.

9. In view of what has been discussed above, we are of the firm opinion that the prosecution has miserably failed to prove its case against appellants beyond any shadow of doubt and the learned trial Court has fallen in error while ignoring the above loopholes in the prosecution evidence thereby convicted the appellants, whose cases are full of doubts, the benefit of which must be extended to them. Thus, the impugned judgment cannot be upheld.

10. Resultantly , this appeal is allowed, the impugned judgment dated 30.11.2017 of the learned Judge, Special Court (CNS), Peshawar is set aside and the appellants are acquitted of the charges leveled against them. They be released forthwith, if not required in any other case.

11. Above are the reasons for the short order of even date.