Case Judgement

1 of 4

http://pakistanlawsite.com/LawOnline/law/content21.asp?Casedes=201...

2015 Y L R 1786
[Peshawar]
Before Dost Muhammad Khan C.J. and Mrs. Irshad Qaiser, JJ
The STATE through Advocate-General Khyber Pakhtunkhwa, Peshawar---Appellant
versus
AMIR REHMAN---Respondent
Cr. Appeal No.365-P of 2012, decided on 6th March, 2013.
(a) Control of Narcotic Substances Act (XXV of 1997)------S. 9(c)---Criminal Procedure Code (V of 1898), S. 417 (2-A)---Possession of narcotics---Appeal against
acquittal---Appreciation of evidence---Benefit of doubt---Case was registered on 13-6-2011 while samples
were sent to the Forensic Science Laboratory on 2-7-2011---Delay for sending samples had not been
explained which created doubt and apprehension of tampering with the same---Investigation Officer had not
given explanation with regard to safe custody of the contraband during the intervening period of sending
samples---Material contradictions were on record with regard to occurrence and weight of
contraband---Mode and manner of the recovery of contraband was doubtful---Trial court pointed out material
contradictions in the statement of prosecution witnesses and irregularities which created dent in the
prosecution case---When two explanations were equally possible, the one in favour of accused should
normally be accepted---Benefit of doubt had rightly been given to the accused, in circumstances--Findings of
the Trial Court could not be said to be the result of inapplicability of mind, non-reading and misreading,
misinterpretation, misapplication of mind and evidence---Observations and grounds for acquittal of accused
were recorded on the basis of sound and cogent analyses and appreciation of the evidentiary principles of
criminal jurisprudence---Accused after his acquittal from the criminal charges enjoyed double presumption of
innocence and courts while dealing with the appeal were bound to examine whether courts below had not
ignored any evidence or had discarded any evidence for the reason not recognized by law---Appeal against
acquittal was dismissed.
2007 SCMR 605; 2009 YLR 2169; 2004 SCMR 6249; 2002 SCMR 713; 2003 YLR 1731; 2004
SCMR 209; Inayat Ullah v. The State PLD 1979 SC 956 and Sheo Swarup and others v. King Emperor AIR
1934 Privy Council 227(2) rel.
(b) Criminal trial------When two explanations were equally possible, the one in favour of accused should normally be accepted.
2007 SCMR 605 rel.
(c) Criminal trial---

14/08/2015 15:48

Case Judgement

2 of 4

http://pakistanlawsite.com/LawOnline/law/content21.asp?Casedes=201...

----Double presumption of innocence---Accused after his acquittal from the criminal charges enjoyed double
presumption of innocence and courts while dealing with the appeal were bound to examine whether courts
below had not ignored any evidence or had discarded any evidence for the reason not recognized by law.
2004 SCMR 6249; 2002 SCMR 713; 2003 YLR 1731; 2004 SCMR 209; Inayat Ullah v. The State
PLD 1979 SC 956 and Sheo Swarup and others v. King Emperor AIR 1934 Privy Council 227(2) rel.
Alamgir Khan Durrani, D.A.G. for the Petitioner.
Nemo for Respondent.
Date of hearing: 6th March, 2013.
JUDGMENT
MRS. IRSHAD QAISAR, J.---Appellant (State) through Advocate General, KPK filed the present
appeal under section 417, Cr.P.C. against the judgment and order dated 14-2-2012 passed by learned ASJ-III,
Special Judge Swabi whereby respondent Amir Rehman was acquitted.
2.
Brief but relevant facts as per contents of the case FIR No. 815 dated
13-6-2011 under section 9 CNSA, Police Station Swabi District Swabi are that on
13-6-2011 the complainant Ijaz Khan S.I. along with other Police officials had put barricade on Mardan
Swabi Road near Salim Khan Shakh when at about 15:20 hours a motor car bearing registration Peshawar
B-4495 was sighted coming from Mardan side which was stopped for the purpose of checking. During the
course of search five packets of charas each weighing 1000 gram total 5 KGs was found lying in between the
rear seat and fuel tank. He separated five grams from each packet and prepared five separate sealed parcels
for analyses while the remaining charas weighing 4975 was sealed in another parcel. These were taken into
possession through recovery memo Ex. PC. The accused disclosed his name Amir Rehman. He was arrested
and murasila Ex PA/1 for registration of case was drafted and on the basis of which present case FIR Exh.1-A
was registered. After completion of investigation the case was referred to the trial Court who after the
conclusion of the trial acquitted the accused vide order dated 14-2-2012 on the ground that prosecution failed
to establish its case against accused/respondent while there is great force in the version of
accused/respondent.
3.
Feeling aggrieved, appellant filed the present appeal on number of grounds inter alia that it is based
on non-reading and misreading of evidence. That respondent was apprehended red handed on the spot and
huge quantity of charas was recovered from the car which was under his control being its driver. That sample
was separated from each packet and sent to FSL, the report of which is in positive. There is nothing on record
to show that PWs have any ill will or grudge to falsely implicate the accused. That there are no material
contradiction in the statements of PWs. Prosecution has been able to prove its case through direct and
circumstantial evidence.
4.

Arguments heard and record perused with the assistance of learned counsel for the petitioner.

5.
The reasons prevailing with the learned ASJ/Special Court for acquitting the respondent were that,
from the very first day of his arrest accused denied the charge and contended that he is innocent and has
falsely been roped in the case. That I.O. had arrested him for ulterior motive and had not recorded the true
facts of the case. In order to fetch out the actual facts accused submitted an application to Judicial Magistrate

14/08/2015 15:48

Case Judgement

3 of 4

http://pakistanlawsite.com/LawOnline/law/content21.asp?Casedes=201...

and ultimately his statement under section 164, Cr.P.C. was recorded wherein he had given the detail of
occurrence. That during trial, he also examined himself on oath under section 340(2), Cr.P.C. That I.O. did
not disclose the actual story and was trying to conceal the real fact and thus the mala fide against the accused
is reflected. It is also observed by trial Court that being I.O. of the case he is supposed to know each and
every aspect of the case and there is an assumption that he was in the knowledge of such fact, if not he is not
even fit to be the investigation officer of the case. Trial Court also pointed out other discrepancies in the case
of prosecution.
6.
Keeping in view the above and other comprehensive reasoning of the learned trial Court, we surveyed
the entire evidence on record to assess as to whether the trial Court's judgment of acquittal suffered from
inapplicability of mind, unsoundness or non appraisal of evidence and flimsiness of argumentation.
7.
Learned trial Court pointed out material contradiction in the statement of P.Ws. and irregularities
which creates dent in the case of prosecution. The case was registered on 13-6-2011 while the samples were
sent to FSL on 2-7-2011. The delay has not been explained. The I.O. has not given any explanation regarding
the safe custody of the contraband, during the intervening period of sending the sample to the FSL on
13-6-2011 and received them on 2-7-2011. This delay creates doubt and apprehension of tampering with the
sample. Trial Court has discarded the direct and circumstantial evidence produced by the prosecution and
accepted the contention of accused that he is innocent and has wrongly been charged in the case. It is settled
principle of law that when two explanation are equally possible in a given situation the one in favour of
accused should normally be accepted. Reference is made to 2007 SCMR 605.
8.
Bare reading of the statement of PW-2 seizing officer bring out the material contradiction in his story
regarding the occurrence when it is put in juxta position with the evidence of recovery witnesses of recovery
memo. PW-2 seizing officer admitted to have laid barricade on the spot at 12 noon and remained on the spot
for about 4/4-1/2 hours while PW-3 marginal witness of recovery memo admitted that recovery was effected
at 3:00 p.m. while they reached to the spot 20/30 minutes prior to the occurrence. There are also contradiction
with regard to the weighment of contraband. A thorough scrutinizing and scanning of the statement of P.Ws.
made the mode and manner of the recovery of contraband doubtful. The case of prosecution was pregnant
with major contradiction and dishonest omission. The seizing officer as well as I.O. was duty bound to dig
out the real facts. But he failed, thus the benefit of doubt has rightly be given to accused by the trial Court.
Reference in this respect is given to 2009 YLR Pesh: 2169.
9.
Keeping in view the above circumstances and facts of the case finding of the trial Court could not be
said to be the result of inapplicability of minds, non-reading and misreading, misinterpretation,
misapplication of mind and evidence. His observation and grounds for acquittal of respondents were recorded
on the basis of sound and cogent analyses and appreciation of the evidentiary principle of criminal
jurisprudence.
10.
For conversion of judgment of acquittal in to a conviction judgment, the principles have long been
settled that accused after his acquittal from the criminal charges enjoys double presumption of innocence, one
before the trial of the accused and second after his acquittal Courts while dealing with the appeal; therefore,
are bound to examine whether Courts below had not ignored any evidence or had discarded any evidence for
the reason non-recognized by law. Reference is given to 2004 SCMR 6249, 2002 SCMR 713, 2003 YLR
1731, 2004 SCMR 209. In judgment reported in PLD 1979 SC 956 in case "Inayat Ullah v. The State" the
apex Court held "Superior Courts have consistently laid down certain defined and fundamental principles for
regulating their jurisdiction in case of acquittal appeal". In the case of Sheo Swarup and others v. King
Emperor" AIR 1934 Privy Council 227(2), it was held that "............ the High Court should and will always

14/08/2015 15:48

Case Judgement

4 of 4

http://pakistanlawsite.com/LawOnline/law/content21.asp?Casedes=201...

give proper weight and consideration to such matters as:-(i)

The views of the trial Judge as to the credibility of the witnesses;

(ii)
The presumption of innocence in favour of the accused, as presumption certainly not weakened by
the fact that he has been acquitted at his trial;
(iii)

The right of the accused to the benefit of any doubt; and

(iv)
The slowness of an appellate Court is disturbing a finding of fact arrived at by a Judge who had the
advantage of seeing the witnesses".
11.
Keeping in view of the above circumstances of the case we hold that there is no force in the instant
appeal, hence dismissed in LIMINE.
AG/414/P

Appeal dismissed.

14/08/2015 15:48