Asif Ullah vs The State

JUDGM ENT

LAL JAN KHATTAK, J. Impugned herein is the judgment dated 18.07.2020 of the learned Additional Sessions Judge-IV/Judge Special Court, Nowshera delivered in case FIR No.505 dated 13.12.2017 under section 9(c) of The Control of Narcotic Substances Act, 1997 read with sections 420/468/471, P.P.C. of Police Station Risalpur whereby the appellant has been convicted and sentenced to imprisonment for life with fine of Rs.50,000/- or in default whereof to further suffer simple imprisonment of six months SI with benefit under section 382-B, Cr.P.C.

2. Brief facts of the case are that on 13.12.2017, complainant Ayub Khan, S.H.O. (P.W-4) was on routine gasht when he received a tip that charas will be smuggled from Peshawar to Punjab through motorcar bearing Registration No.835/ARV-Sindh. In order to foil the bid, he arranged a Nakabandi at Stomani Kanda, Risalpur double Phattak when in the meantime, the 'vehicle reached there, which was signaled to stop. On search of the vehicle, 15 packets charas concealed in petrol tank of the vehicle were recovered therefrom. When weighed, - the charas turned out to be 17335 grams. Driver of the vehicle disclosed his name as Asif. Ullah who accordingly was arrested in the case as accused. From the recovered stuff 5/5 grams were separated for the purpose of FSL from each packet while the rest was sealed in separate parcel.

3. On completion of investigation, challan was put in court which indicted the accused for the offence to which he pleaded not guilty. In order to prove its case, prosecution examined 07 witnesses whereafter statement of the accused was recorded wherein he professed his innocence.

After conclusion of the trial, the learned trial court found the appellant guilty of the charge and while recording his conviction sentenced him, as mentioned above.

4. Arguments heard and record gone through.

5. Damaging aspect of the case for the prosecution is that the official who had taken the 15 representative samples to the FSL from the malkhana has not been produced by the prosecution.

Though Moharrar of the police station namely Muhammad Usman (P.W-6) stated in his cross- examination that the representative samples were handed over to constable Hameed for taking them to FSL but as constable Hameed did appear before the court, therefore, mere mentioning name of the carrier would not absolve the prosecution from establishing that from the police malkhana to FSL no one had interfered with the samples. So the safe transmission of the samples to FSL has not been proved. Besides, no application on behalf of the complainant or the Investigation Officer for seeking opinion of the FSL whether the representative samples were charas or otherwise is available on the case file and this fact was admitted before the learned trial court by the seizing officer.

6. In addition, there are glaring contradictions in the evidence of the P. Ws. For example, P. W -3 namely Inspector Dost Muhammad says that constable Saqib had searched the vehicle whereas complainant of the case says that he himself and none else had searched the vehicle. Similarly.

P.W-3 says that inside the petrol tank of the vehicle there were three cavities whereas the complainant says that there was only one cavity in the tank.

7. Another important aspect of the case is that there is no material on the case file to show that how the fuel tank was opened and how slabs of the narcotics were taken out of it. It is also worth to add that neck of the petrol tank has a radious of up to 02 inch whereas slabs of charas normally are in rectangles shapes which neither can be pushed in same form into a fuel tank nor can be taken out of it unless are broken or the fuel tank is dismantled which is not the case in hand as there is no evidence in that effect.

8. Thorough and careful examination of the case record would show that the prosecution has not established its charge against the appellant through worth reliable evidence and the findings drawn by the learned trial court are not borne out from the case evidence for which the impugned judgment cannot be upheld.

9. For what has been discussed above, this appeal is allowed, the impugned conviction and sentence is set aside and the appellant is acquitted of the charge levelled against him. He be released from jail forthwith, if not required to be detained in any other case.

10. Above are the reasons for our earlier short order of even date.