2026 P Cr. L J 651

 2026 P Cr. L J 651

[Peshawar (Mingora Bench)]

Before Shahid Khan, J

SABIR SHAH and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 303-M and 302-M of 2023, decided on 27th

November, 2023.

(a) Khyber Pakhtunkhwa Control of Narcotic Substances Act

(XXXI of 2019)---

----S. 9(D)---Possession of narcotic substances---Appreciation of

evidence---Benefit of doubt---Recovery memo not prepared---

Prosecution case was that a bag containing 3044-grams chars in three

packets lying beneath the legs of the accused/driver of the vehicle

was recovered---Record showed that the bag had neither been

separately taken into possession through any recovery memo nor the

same had been exhibited in the trial, therefore, the prosecution had

not been able to prove the foundation stone of their case---Appeal

against conviction was allowed, in circumstances.

(b) Khyber Pakhtunkhwa Control of Narcotic Substances Act

(XXXI of 2019)---

----S. 9(D)---Possession of narcotic substances---Appreciation of

evidence---Benefit of doubt---Conscious knowledge of the presence

of contraband---Scope---Prosecution case was that a bag containing

3044-grams chars in three packets lying beneath the legs of the

accused/driver of the vehicle was recovered---Record showed that

during the course of investigation it transpired that the vehicle from

which the alleged recovery of contraband had been made belonged

to one S ---Record showed that subsequently the said S appeared

before the Court and he had also produced the relevant documents

of the ownership of the said vehicle and in that regard he also

produced a witness Z , however, the prosecution had not arrayed

him as an accused in the subject case---Possibility that in-fact the

contraband was placed by the owner of the vehicle could not be

ruled out---Since the contraband was recovered from a place which

was visible to ordinary eyes, therefore, in the given facts and

circumstances, the prosecution had not been able to prove the

conscious knowledge on the part of the appellant---Appeal against

conviction was allowed, in circumstances. Muhammad Noor and others v. The State 2010 SCMR 927; Shahzada

v. The State 2010 SCMR 841 and 1997 SCMR 345 rel.

(c) Khyber Pakhtunkhwa Control of Narcotic Substances Act

(XXXI of 2019)---

----S. 9(D)---Possession of narcotic substances---Appreciation of

evidence---Benefit of doubt---Mode and manner of the alleged

recovery doubtful---Prosecution case was that a bag containing

3044-grams chars in three packets lying beneath the legs of the

accused/driver of the vehicle was recovered---Record showed that

after drafting of the 'Murasila' followed FIR coupled with separation

of samples on the spot, the investigation of the subject case was

handed over to Investigating Officer---As per contents of Mad Report

No. 20, the Investigation Officer, in the company of Madad Muharir,

proceeded to the spot of occurrence on 02.01.2023 at 05.25 hours,

however, when the said three officials returned to the police

station/Levy Post concerned on the same date i.e. 02.01.2023 at 06:30

hours, as reflected from Mad Report No. 21, they were accompanied

by the fourth official by the name MS ---Needless to mention that MS

was the most relevant witness of the prosecution in a sense that he

was the marginal witness to the recovery memo, which was with

respect to the recovery of the alleged contraband---If said witness

was not a member of the initial police party headed by the

Investigation Officer, then how and for what reason his name was

later on mentioned in the returning party of the police, therefore,

that element also casted a serious doubt on the mode and manner of

the alleged recovery of the contraband from the vehicle in question

which was allegedly driven by the accused/appellant---Appeal

against conviction was allowed, in circumstances.

(d) Khyber Pakhtunkhwa Control of Narcotic Substances Act

(XXXI of 2019)---

----S. 9(D)---Possession of narcotic substances---Appreciation of

evidence---Benefit of doubt---Transportation of narcotic substance

not proved---Prosecution case was that a bag containing 3044-grams

chars in three packets lying beneath the legs of the accused/driver of

the vehicle was recovered---Seizing Officer/complainant of the case

in hand was examined and in his cross-examination he stated that

the case property was in the form of slabs and the case property was

in solid condition, however, during the Court proceedings when the

parcel was opened, the case property turned out to be in another

shape, whereby, one slab was in soft form, whereas the remaining

two slabs were in solid condition---Complainant also affirmed the

assertion of the Muharir of the levy post in terms that he had not

put his signature in Register No. 19---Likewise, the testimony of the Investigation Officer, was not above board---In his cross-

examination Investigating Officer had admitted that in their

department, there was Post Commander by the name of NR and the

monogram affixed on the representative samples by the

abbreviation of "N.R" might be of his name, whereas, the Post

Commander of the subject case was NZ and the name of his

abbreviation would be "N.Z"---In view of the said admissions on part

of the material witnesses of the prosecution the case of the

accused/appellant qua his alleged offence of transportation of

narcotics was prima facie standing in vacuum, as such,

accused/appellant was entitled for its benefit---Moreover, Seizing

Officer was bound to inscribe the abbreviation of his own name as

the abbreviation "N.R" did not reflect the name of none of the

persons present on the spot including the Seizing Officer-cum-

Investigating Officer, as such, the prosecution had not been able to

prove that as to who separated the samples from the recovered stuff

and that as to who had dispatched or taken them to the police

station, which failure of the prosecution was fatal for their case---

Appeal against conviction was allowed, in circumstances.

Khtar Iqbal v. The State 2015 SCMR 291 and Usman Shah v. The State

2022 YLR 821 rel.

(e) Khyber Pakhtunkhwa Control of Narcotic Substances Act

(XXXI of 2019)---

----S.9(D)---Possession of narcotic substances---Appreciation of

evidence---Benefit of doubt---Investigation carried out by the official

below the rank of Sub-inspector---Prosecution case was that a bag

containing 3044-grams chars in three packets lying beneath the legs

of the accused/driver of the vehicle was recovered---Record showed

that in the subject case the investigation had been carried-out by

Investigating Officer, who was below the rank of Sub-Inspector---

However, as per S.2(e)(ii) of the Act, 2019, a Police Officer/Official

not below the rank of Sub-Inspector, authorized by the Regional

Officer was to carry out the investigation---In the case in hand, the

said mandatory provision had not been complied with, therefore, on

that score too, the conviction and sentence of the accused/appellant

recorded by the Trial Court was not sustainable in the eyes of law---

Appeal against conviction was allowed, in circumstances.

(f ) Khyber Pakhtunkhwa Control of Narcotic Substances Act

(XXXI of 2019)---

----S.9(D)---Possession of narcotic substances---Appreciation of

evidence---Benefit of doubt---Vehicle used in the commission of

alleged offence not produced---Prosecution case was that a bag

containing 3044-grams chars in three packets lying beneath the legs of the accused/driver of the vehicle was recovered---Record showed

that though it was the case of prosecution from very inception that

the appellant was transporting the contraband in the Suzuki vehicle

and it was their case that on search of the said vehicle the alleged

contraband was recovered from the adjacent place near the driver

seat, allegedly lying in a bag, as such, it was an important piece of

evidence with the prosecution to connect the present appellant with

the commission of offence---However, it was surprising that the

prosecution had not been able to produce and exhibited the said

vehicle in the Trial Court---Prosecution was bound to make some

reasonable and visible efforts to make sure the production of the

said vehicle and to exhibit the same during the trial, therefore, non-

production of the vehicle and its non-exhibition had cut the very

roots of the prosecution case and thus on that score too, the benefit

had to be extended to the appellant---Appeal against conviction was

allowed, in circumstances.

Usman Shah v. The State 2022 YLR 821; Muhammad Fayaz v. The

State PLD 2017 Pesh. 74 and Imtiaz Khan v. The State 2020 PCr.LJ 202

rel.

(g) Criminal trial---

----Benefit of doubt---Principle---Single worth reliable doubt would

be sufficient enough to extend its benefit to an accused person as it

is the cardinal principle of criminal administration of justice that let

hundred guilty persons be acquitted but one innocent person should

not be convicted.

Tariq Pervaiz v. The State 1995 SCMR 1345; Daniel boyd (Muslim

name Saifullah) v. The State 1992 SCMR 196; Ghulam Qadir and 2

others v. The state 2008 SCMR 1221 and Muhammad Zaman v. The

State 2014 SCMR 749 rel.

(h) Criminal Procedure Code (V of 1898)---

----S. 516-A---Khyber Pakhtunkhwa Control of Narcotic Substances

Act (XXXI of 2019), S.9(D)---Possession of narcotic substances---

Custody of vehicle---Scope---Prosecution case was that a bag

containing 3044-grams chars in three packets lying beneath the legs

of the accused/driver of the vehicle was recovered---Record showed

that the claimant/appellant was a sole claimant as no rival claimant

had come forward till date to claim the subject vehicle---Record was

also silent with respect to tempering or welding of the chassis

number of the subject vehicle---Record also showed that the subject

vehicle was neither the case property nor used in the commission of

any other offence except in present case of recovery of narcotic substances---Therefore, the claimant/appellant had made out a case

for the custody of the subject vehicle/ motorcar.

Javaid Arshad Abid v. Station House Officer and others 2005 SCMR

735 and Muhammad Hanif v. The State and others 2011 SCMR 1471 rel.

Sajjad Anwar for Appellant.

Hafiz Ashfaq Ahmad, Asst. A.G for the State.

Date of hearing: 27th November, 2023.

JUDGMENT

SHAHID KHAN, J.---Through this single judgment, the Court intends

to decide the subject Criminal Appeal No. 303-M of 2023 titled "Sabir

Shah v. The State and another" coupled with the connected Criminal

Appeal No. 302-M of 2023 titled "Saeed-ul-Ibrar v. The State and

another", as the subject criminal appeals are by-product of one and the

same impugned order/judgment, passed by the learned Additional

Sessions Judge/Model Criminal Trial Court, Malakand at Batkhela,

dated 28.09.2023, whereby, on conclusion of trial, the learned trial

Court convicted and sentenced the appellant/accused under section

9(d), Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019

and awarded him a sentence for rigorous imprisonment of five years

with fine in the sum of Rs. 1000,000/- (one million), in default whereof,

to suffer further six months SI. Benefit of section 382-B Cr. P.C has also

been extended to the accused/appellant. Whereas, through connected

criminal appeal, claimant/appellant sought the permanent custody of

the motorcar in question which was confiscated in favour of the State.

2. Reportedly, the complainant/ Post Commander, Hassan Khan

Shaheed, Levy Post Alladhand received prior information in respect of

smuggling of huge quantity of narcotics through Suzuki Pickup No. Ai-

1770. Acting on such information, he, with other levy officials named

in the FIR laid a picket (Nakabandi) and the stopped the aforesaid

vehicle for the purpose of checking. Driver of the vehicle disclosed his

name as Sabir Shah (the accused/appellant herein). During search of

the vehicle, the levy officials recovered a blue colour bag, lying

beneath the legs of the driver. Due search of the bag led to the

recovery of narcotic as Chars net weighing 3044 grams (comprising of

three packets). The event was reduced into in writing in the shape of

'Murasila' (Ex. PW-PA/1) followed by FIR No. 10 (Ex. PW-PA) dated

01.02.2023 registered against the accused/appellant, under section 9(d),

K.P CNSA, Act, 2019 at P.S/Levy Post, Hassan Khan Shaheed, Alladhand,

District Malakand.

3. Upon arrest of the accused/appellant followed by preliminary

investigation on the spot, after drawl of sample from the relevant bag, sealed the same in separate parcels as well as the remaining stuff and

the 'Murasila' was sent to the P.S/Levy Post concerned.

4. On completion of the investigation, challan was drawn and was

sent-up for trial to the learned trial Court. Accused was confronted

with the statement of allegations through a formal charge-sheet to

which he pleaded not guilty and claimed trial.

5. To substantiate the guilt of the accused/appellant, the prosecution

placed reliance on the account five (05) PWs. The accused was

confronted with the evidence so furnished through statement of

accused within the meaning of section 342 Cr.P.C.

6. On conclusion of proceedings in the trial, in view of the evidence

so recorded and the assistance so rendered by the learned counsel for

the accused/appellant and the learned State counsel, the learned trial

Court arrived at the conclusion that the prosecution has successfully

brought home charge against the appellant/accused, Sabir Shah,

through cogent and worth reliable evidence, as such, the accused was

convicted and sentenced (as highlighted in the proceeding Para of this

judgment).

7. It obliged the appellant/accused as well as the claimant/appellant

to approach this Court through the subject criminal appeals.

8. Arguments of the learned counsel for the accused/appellants as

well as the learned Astt: A.G for the State have been heard at a

substantial length and the record gone through with their valuable

assistance.

9. The record so furnished would divulge that the local levy officials

under the command and supervision of the complainant/Post

Commander, Noor Zada laid a picket (Nakabandi), pursuant to receipt

of prior information. During Nakabandi, they stopped the Suzuki

Pickup bearing No. Ai-1770 for the purpose of checking. During search

of the vehicle, the levy officials recovered Chars net weighing 3044

grams (comprising of three packets), allegedly lying in a blue colour

bag, beneath the legs of the accused/appellant, Sabir Shah. Now the

only question before this Court for determination would be as to

whether the accused/appellant being a driver of the vehicle was

having conscious knowledge of the contraband in question allegedly

lying in a bag in his legs or otherwise? Needless to highlight that it is

the duty of the prosecution to prove the conscious knowledge of the

appellant qua the contraband in question. It is an admitted fact

floating on the surface of the record that in this case the alleged

recovery has been made from the blue colour bag allegedly lying in

the legs of the appellant, however, it is a matter of record that the

aforesaid bag has neither been separately taken into possession through any recovery memo. nor the same has been exhibited in the

trial, therefore, the prosecution has not been able to prove the

foundation stone of their case. It is also part of the transpires that the

vehicle from which the alleged recovery of contraband has been made

belongs to one Saeed-ul-Ibrar. The record shows that subsequently the

said Saeed-ul-Ibrar appeared before the Court as OW-2 and he has also

produced the relevant documents of the ownership of the said vehicle

and in this regard he also produced Zahoor-ul-Haq as OW-1, however,

the prosecution has not arrayed him as an accused in the subject case.

The possibility that in-fact the contraband was placed by the owner of

the vehicle could not be ruled out. Since the contraband was recovered

from a place which is visible to ordinary eyes, therefore, in the given

facts and circumstances, the prosecution has not been able to prove

the conscious knowledge on the part of the appellant. It merits to

mention here that it is not mere the possession of the contraband

which is punishable but such possession must be on the basis of

conscious knowledge. In the subject case, the prosecution has not been

able to prove that in-fact the contraband which was placed in the

vehicle in invisible place was in-fact with the conscious knowledge of

the appellant or otherwise. In case titled "Muhammad Noor and others

v. The State" reported as 2010 SCMR 927, the Apex Court has held as

under;-

It is permissible to look into the object of the legislature and find out

whether, as a matter of fact, the legislature intended anything to

be proved except possession of the article as constituting the

element of the offence. Even if it is assumed that the offence is

absolute, the word "Possess" appearing in the section 6 connotes

some sort of knowledge about the things possessed. So we have

to determine what is meant by word "possess" in the section. It is

necessary to show that the accused had the article, which turned

out to be narcotic drugs. In other words the prosecution must

prove that the accused was knowingly in control of something in

the circumstances, which showed that he was assenting to being

in control of it. It is not necessary to show in fact that he had

actual knowledge of that which he had.

Similarly, in case titled "Shahzada v. The State" reported as 2010

SCMR 841 it was also held by the Apex Court that;-

No such evidence has been led by the prosecution to prove the

above aspects of the case so as to make the appellants

responsible for the commission of the crime along with the

Driver. If the property would have been lying open within the

view of the appellants or they knew the placement of the

property then the situation would have been different. In such a situation, the appellants were required to explain their position,

as required under Article 122 of Qanun-e-Shahadat Order, 1984

and without such explanation their involvement in the case

would have been proved. As the property was not within their

view and they had no knowledge of the placement of the

property, therefore, they cannot be held responsible and in joint

possession of the property with the Driver.

In another case the august Supreme Court of Pakistan reported as

1997 SCMR 345 in such like situation, the other fellow of the truck

driver sitting with him (driver) has been absolved of the charge in

view of the possibility that he might had no, knowledge of the

presence of heroin in the truck.

10. Other than the above, it is part of the record that after drafting

of the 'Murasila' followed FIR coupled with separation of samples on

the spot, the investigation of the subject case was handed over to

Muhammad Ilyas, IHC. As per contents of Mad Report No. 20, the

Investigation Officer, Muhammad Ilyas, IHC in the company of Madad

Muharir, Hashim Khan and Muhammad Ayaz proceeded to the spot of

occurrence on 02.01.2023 at 05.25 hours, however, when the aforesaid

three officials were returned to the police station/Levy Post concerned

on the same date i.e. 02.01.2023 at 06:30 hours, as reflect from Mad

Report No. 21, they were accompanied by the fourth official by the

name of Muhammad Shahid. Needless to mention that Muhammad

Shahid is the most relevant witness of the prosecution in a sense that

he is the marginal witness to the recovery memo, Ex. PW-3/1 which is

with respect to the recovery of the alleged contraband. Here the

question arises, that if he was not a member of the initial police party

headed by the Investigation Officer, Muhammad Ilyas, IHC, then how

and for what reason his name was later on mentioned in the returning

party of the police, therefore, this element also cast a serious doubt on

the mode and manner of the alleged recovery of the contraband from

the vehicle in question which was allegedly driven by the

accused/appellant, Sabir Shah.

11. Muharir of the levy post concerned, Sana Ullah appeared in the

witness-box as PW-1. In his examination-in-cross he has come up

with an admission that it is correct that in column 3 of register No. 19

the signature of the seizing officer has not been obtained. He has also

shown ignorance about the number of monograms registered in

register No. 19. The seizing officer/complainant of the case in hand

was examined in Court as PW-4. In his cross-examination he stated

that the case property was in the form of each slab and the case

property was in solid condition, however, during the Court

proceedings when the parcel was opened, the case property turned out to be in another shape, whereby, one slab was in soft form,

whereas the remaining two slabs were in solid condition. The

complainant also affirmed the assertion of the Muharir of the levy

post in terms that he had not put his signature in register No. 19.

Likewise, the testimony of the Investigation Officer, Muhammad

Ilyas, IHC, PW-5 is not above the board. In his cross-examination he

has admitted that in their Department there is Post Commander by

the name of Naik Rehman and the monogram affixed on the

representative samples by the abbreviation of "N.R" might be of his

name, whereas, the Post Commander of the subject case is Noor Zada

Khan and the name of his abbreviation would be "N.Z". In view of the

aforesaid admissions on part of the material witnesses of the

prosecution the case of the accused/appellant qua his alleged offence

of transportation of narcotics is prima facie standing in vacuum, as

such, he is entitled for its benefit.

12. It is also relevant to mention here that in this case the seizing

officer and the person who has separated the samples on the spot is

Post Commander, Noor Zada, however, the parcels prepared by him on

the spot do not reflect the abbreviation of his name as the monogram

of "N.R" has been inscribed on the same. Needless to highlight that

under the Rules and as per the judgments of the Apex Court the seizing

officer is bound to inscribe the abbreviation of his own name as the

abbreviation of "N.R" does not reflect the name of none of the persons

present on the spot including the seizing officer-cum-Investigating

Officer, as such, the prosecution has not been able to prove that as to

who separated the samples from the recovered stuff and that as to

who has dispatched or taken them to the police station, which failure

of the prosecution is fatal for their case. Such flaw was found fatal by

the Apex Court in case titled "Khtar Iqbal v. The State" reported as 2015

SCMR 291 by observing that;-

The most important factor in that connection, which compounded

all those doubts and raised a big question mark upon the

veracity of the prosecution's case against the appellant, was

that after allegedly recovering the contraband substance from

the boot of the motorcar driven by the appellant the parcels of

the recovered substance were sealed with a monogram reading

as SJ and it had been disclosed by Mati-ur-Rehman (P.W.2)

before the learned trial Court that the said monogram belonged

to one Sameen Jan Inspector who was not even posted at the

relevant Police Station at the time of the alleged recovery from

the appellant and as a matter of fact at the said time the said

Inspector was serving at a Police Station in Quetta. Mati-ur-

Rehman (P.W.2) had not been able to advance any explanation

whatsoever as to why the recovery officer namely Assistant Director Rehmat had not put his own monogram on the seals of

the parcels prepared by him and as to why he had used the

monogram of some other officer who was not even posted at

the relevant Police Station at the relevant time.

Similarly, this Court in case titled "Usman Shah v. The State"

reported as 2022 YLR 821 has also reiterated the same rational by

holding that;-

The seizing officer while appearing before the Court as PW-2,

deposed in his Court's statement that after recovery of

contraband, he separated samples for FSL purpose and sealed

in parcels Nos.1 to 8 and remaining stuff in parcel No.9 with a

monogram of "MK" which, he categorically admitted that same

is not pertained to his name and in-fact the same stands for

Mukhtiar Khan, S.I., who was stated to be present with the

complainant. The alleged recovery seems to be doubtful, rather

hints at something to be planted by complainant, because said

Mukhtiar Khan SI was never cited as a witness during

proceedings in the instant case. This witness, after few

moments, in his cross-examination contradicted his own

statement by deposing that "Mukhtiar Khan S.I. was present in

the P.S. at that very time. The MK monogram was lying with me

in the official van". Be that as it may, the Seizing Officer,

pursuant to spy information, should have been required to

have his own monogram with the letters "RK" in his possession

to have strengthened and substantiated his version, but he

disrupted the episode in a casual manner.

13. It is part of the record that in the subject case the investigation

has been carried-out by Muhammad Ilyas, IHC (PW-5), who is below

the rank of Sub-Inspector. For ready reference Section 2 (e) (ii), K.P,

CNSA Act, 2019 is reproduced below;-

(ii) a police officer/official not below the rank of Sub-Inspector,

authorized by the Regional Officer;

However, in the case in hand, the aforesaid mandatory provision

has not been complied with, therefore, on this score too, the conviction

and sentence of the accused/appellant recorded by the trial Court is

not sustainable in the eyes of law.

14. It is also part of the record that though it is the case of

prosecution from very inception that the appellant was transporting

the contraband in the Suzuki vehicle bearing No. Ai-1770 and it is their

case that on search of the said vehicle the alleged contraband was

recovered from the adjacent place near the driver seat, allegedly lying

in a bag, as such, it was an important piece of evidence with the prosecution to connect the present appellant with the commission of

offence, however, it is surprising that the prosecution has not been

able to produce and exhibited the said vehicle in the trial Court.

Though the rival claimant of the vehicle Saeed-ul-Ibrar recorded his

statement as OW-2 and he also relied upon the account of Zahoor-ul-

Haq recorded as OW-1. We have gone through the whole case record

but could not found any exhibited documentary evidence in this

regard except the bargain receipt and undocumented vehicle record

system/registration documents brought on record by the

claimant/appellant, Saeed-ul-Ibrar. The prosecution was bound to

make some reasonable and visible efforts to make sure the production

of the said vehicle and exhibited the same during the trial, therefore,

non- production of the vehicle and non-exhibition has cut the very

roots of the prosecution case and thus on this score too, the benefit has

to be extended to the appellant. It is an established principle of law

that when the prosecution has not been able to produce the case

property before the Court for its exhibition then no conviction could

be recorded for the alleged contraband recovered from an accused

person. In a somewhat similar situation, this Court in its earlier

judgment rendered in case titled "Usman Shah v. The State" reported

2022 YLR 821 has held that;-

The vehicle, from which the alleged recovery was effected, was not

produced before the Court and was not exhibited during trial.

The case property had not been produced by the police before

the trial court without any justification, which shows that the

police had malice towards the accused regarding recovery of

the contraband. Production of the case property before the

court was the primary duty of the police in order to bring home

the guilt of the accused. Non-production of the case property

was fatal to the prosecution's case, and the same had destroyed

the very foundation of the case, which created a dent in the

prosecution case causing serious doubt with regard to the

occurrence.

Similarly, in case titled "Muhammad Fayaz v. The State" reported as

PLD 2017 Peshawar 74, this Court has also observed that;-

It is very strange to observe that despite pendency of trial for about

one year followed by repeated directions issued by learned trial

Court, the prosecution kept mum for such a long period

regarding non-production of case property and then after

destruction of the case property on 26.6.2012, they did not utter

any word for further 10 months, concealing the actual facts from

the trial Court, which creates doubt in a prudent mind regarding

recovery of alleged contraband from the possession of appellant. Had there been any recovery effected from the appellant, then

the prosecution could have produced the same before the Court

for exhibition or to bring the actual fact regarding destruction of

case property into the notice of trial Court which they failed to

do so.

Likewise, in case titled "Imtiaz Khan v. The State" reported as 2020

PCr.LJ 202 in a similar situation akin to the present one, this Court has

concluded that;-

We find a peculiar situation, where instead of confronting the

accused-appellants with the relevant incriminating evidence/

case property, they were confronted with the procedure 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.

15. It is well settled, it is not essential at all to place reliance on

multiple doubts coupled with multiple grounds to extend the benefit of

doubt to an accused, even a single worth reliable doubt is sufficient

enough to extend its benefit to an accused person as it is the cardinal

principle of criminal administration of justice that let hundred guilty

persons be acquitted but one innocent person should not be convicted.

In case titled "Tariq Pervaiz v. The State" reported as 1995 SCMR 1345,

the Apex Court has held as under;-

That the concept of benefit of doubt to an accused person is deep-

rooted in our country. For giving him benefit of doubt, it is not

necessary that there should be many circumstances creating

doubts. If there is a circumstance which creates reasonable

doubt in a prudent mind about the guilt of the accused, then the

accused will be entitled to the benefit not as a matter of grace

and concession but as a matter of right.

Further reliance is placed on the case law cited as "Daniel boyd

(Muslim name Saifullah) v. the State" reported as 1992 SCMR 196",

where the following observations were recorded by the Apex Court;-

Nobody is to be punished unless proved guilty on the basis of

reliable or true evidence. Benefit of every reasonable doubt is to

go to the accused.

This view also reflects in the judgment of the apex Court titled as

"Ghulam Qadir and 2 others v. The State" reported as 2008 SCMR 1221,

wherein it was observed that:-

"Benefit of doubt. Principle of applicability. For the purpose of

benefit of doubt to an accused, more than one infirmity is not required. Single infirmity creates reasonable doubt in the mind

of a reasonable and prudent person regarding the truth of

charge, makes the whole case doubtful. "

In support of the same rational, further reliance is placed on the

judgment of the august Supreme Court of Pakistan cited as

"Muhammad Zaman v. The State" (2014 SCMR 749), wherein it was

held that;-

Even a single doubt if found reasonable, was enough to warrant

acquittal of the accused.

16. For what has been discussed above, this Court is of the firm view

that the prosecution has failed to prove its case against the

accused/appellant, Sabir Shah beyond reasonable doubt, as such, his

conviction cannot be maintained. Resultantly, while extending him the

benefit of the doubt the subject criminal appeal is allowed and the

impugned order/judgment of conviction and sentence dated 28.09.2023

recorded by the learned trial Court is set aside and consequently the

accused/appellant named above is acquitted of the charges levelled

against him. He be released forthwith from the Jail, if not otherwise

required.

17. As far as the case of the claimant/appellant of Criminal Appeal

No. 302-M of 2023, Saeed-ul-Ibrar with respect to the grant of

permanent custody of the Suzuki vehicle is concerned, suffice it to

state, that it has never been the case of the prosecution that the

contraband in question has been recovered from the secret cavities

allegedly prepared in the subject vehicle rather their stance was that

the contraband was recovered from a bag allegedly lying in the legs of

the accused/appellant, Sabir Shah, therefore, the findings of the

learned trial Court in the impugned order/judgment dated 28.09.2023

in respect confiscation of the vehicle in favour of the State needs re-

consideration. It is also part of the record that during the course of

trial, the claimant/appellant, Saeed-ul-Ibrar also produced evidence in

respect of ownership of the vehicle in question which comprises of his

statement recorded as OW-1 as well as that of one Zahoor-ul-Haq

recorded as OW-2. In this regard, the claimant/appellant also brought

on record the bargain receipt as Ex. OW-1/1, vide which, the vehicle

was purchased by him from one Umar Mukhtiar in lieu of sale

consideration in the sum of Rs. 6,20,000/-. He also brought on file the

registration documents/ "undocumented vehicle record system" of the

vehicle as Ex. OW-2/1, therefore, on the strength of this documentary

evidence, the claimant/appellant is prima facie owner of the vehicle in

question. 18. The record so furnished would further indicate that when the

aforesaid vehicle was taken into possession by the local police from

the custody of the accused/appellant, Sabir Shah who has since been

acquitted, the present claimant/appellant soon thereafter approached

to the learned trial Court for the interim custody of the vehicle,

however, the said application was later on withdrawn. The record

further shows that the claimant/ appellant is a sole claimant as no

rival claimant has come forward till date to claim the subject vehicle.

The record is also silent with respect to tempering or welding of the

chassis number of the subject vehicle. The record also shows that the

subject vehicle is neither the case property nor used in the commission

of any other offence except the one referred to above, therefore, the

claimant/appellant has made out a case for the custody of the subject

vehicle/motorcar. In case titled "Javaid Arshad Abid v. Station House

Officer and others" reported as 2005 SCMR 735, the Apex Court has

held as under;-

The disputed car was neither used in commission of any offence nor

any FIR regarding its theft was registered. Petitioner claiming to

have purchased such car which had remained in his possession

till same was taken into custody by Anti-Car Lifting Staff of

Police. No other claimant had come forward. Custody of car was

ordered to be handed over to petitioner.

Similarly, in case titled "Muhammad Hanif v. The State and others"

reported as 2011 SCMR 1471, the Apex Court has also held that;-

No other person has so far come forward to claim ownership or

possession of that vehicle. The petitioner is not an accused

person in the above mentioned criminal case and he undertakes

to produce the relevant vehicle before any court of law if and

when required to do so.

19. Accordingly, the connected Criminal Appeal No. 302-M of 2023 is

allowed, the impugned order/judgment of the learned trial Court dated

28.09.2023 is also set-aside to the extent of confiscation of vehicle in

favour of the State and consequently the SHO of Levy Post/Police

Station, Hassan Khan Shaheed, Alladhand, District Malakand is

directed to hand over the Vehicle/Motorcar Suzuki (NCP) bearing

chassis No. DA51T-187835 to the claimant/appellant, Saeed-ul-Ibrar

forthwith against a proper entry in the relevant record.

JK/193/P Appeal allowed.