MEHMOOD HUSSAIN Versus State
LAL JAN KHATTAK, J.--- Impugned herein is the judgment dated 23.07.2019 of the learned Judge Special Court (CNS), Peshawar delivered in case FIR No.25 dated 10.03.2017 under section 9(c) of The Control of Narcotic Substances Act, 1997 read with section 15 of The Khyber Pakhtunkhwa Arms Act, 2013 of police station ANF, Peshawar whereby the appellant has been convicted and sentenced to imprisonment for life with fine of Rs.1,000,000/- or in default whereof to further suffer simple imprisonment of one year benefit under section 382-B, Cr.P.C.
2. Brief facts of the case are that on 10.03.2017, complainant of the case namely, Inspector Mehmood-ul-Hassan, (P.W-2) received a spy information that Attaullah and Muhammad Siddique, inter-provincial drug traffickers will try to smuggle huge quantity of narcotics through their agents namely, Mehmood Hassan and Sajid Nadeem etc from Peshawar to Faisalabad through Truck bearing Registration No.JU-8179. In order to foil the bid, he along with other police personnel laid Nakabandi on the spot when in the meantime, the said Truck reached there, which was signaled to stop. On query, driver of the vehicle disclosed his name as Mehmood Hussain. On search of the vehicle, 13 packets of charas and 2 packets of opium concealed under Tatpal lying in the cabin of the Truck were recovered. On weighment, the charas turned out to be of 15 Kg while the opium came out to be of 2.400 Kg. From the recovered stuff 10/10 grams charas and 10/10/ grams opium 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 they pleaded not guilty. In order to prove its case, prosecution examined 04 witnesses whereafter statements of the accused were recorded wherein they professed their 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 while rest of the accused namely Sajid Nadeem, Muhammad Saqlain, Attaullah and Muhammad Siddique were acquitted.
4. Arguments heard and record gone through.
5. Noticeable aspect of the case is that the recovery of contraband was effected at Aza Khel which falls in District Nowshera where no murasila was scribed and instead the accused along with vehicle and contraband were brought to police station ANF, Peshawar where the case FIR was chalked out. The reason advanced by the prosecution for not scribing murasila on the spot was for the security reason. !bid explanation is not appealable to prudent mind as the raiding party was comprising of a good number of ANF officials and further the information regarding the smuggling of contraband was received by the complainant in the police station and that too in advance and as such he could have arranged sufficient number of ANF officials or even could get police personnel from the police station Aza Khel of District Nowshera which he did not do. Omission to the ibid effect has created dents in the prosecution case as deliberations and false implication of accused during the journey starting from one District to another District could not be ruled out.
6. Furthermore, the raiding party was consisting of more than six ANF personnel but only two of them have been produced as prosecution witnesses in order to substantiate the charge against the accused. Though the prosecution is not bound to produce all its witnesses on a particular point but when in a case maximum punishment provided is of death or imprisonment for life then in that case production of all the available witnesses for their evidence becomes must so that case against the accused is proved beyond any reasonable doubt.
7. In addition to the above, extract from the register-19 has not been produced before the trial court to show that during the three days the representative samples had remained in safe custody of the police malkhana. Further, the prosecution has also not produced copy of the daily diary to show that the complainant had left the police station for his reaching along with the ANF officials to the spot at Aza Khel along with the ANF officials.
8. Furthermore, according to the prosecution, three persons were found sitting in the truck out of whom two were acquitted by the learned trial court and the appellant was convicted on the ground that he was driving the vehicle but important aspect of the case is that no driving license was recovered from him and further as per statement of D.W-1 namely, Muhammad Shafique, the appellant was not driver of the vehicle rather according to the ibid deposition, acquitted accused namely, Sajid Nadeem was the driver.
9. Thorough and careful examination of the case record would show that the prosecution has not proved its case against the appellant beyond any shadow of doubt and it is the cardinal principle of criminal law that in order to bring home guilt to an accused, the prosecution must establish its case through reliable and trustworthy evidence, which is not the case in hand for which the judgment of the learned trial court is not sustainable.
10. For what has been discussed above, this appeal is allowed, the impugned judgment of conviction and sentence is set aside and consequently, the appellant is acquitted of the charge leveled against him. He be released from jail forthwith, if not required to be detained in any other case.
11. Above are the reasons for our earlier short order of even date.
JK/178/P Appeal allowed.