' IJAZ-UL-HASSAN KHAN, J.---Appellants Ghulam Saddique son of Sardaraz resident of Tajazai, and Hamidullah son of Yar Muhammad, resident of Katakhel, Tehsil and District Lakki Marwat have called in question the impugned Judgment, dated 20-5-2004 given by learned Sessions Judge/Judge Special Court Lakki Marwat whereby the appellants have been convicted under section 9 of the Control of Narcotic Substances Act, 1997 and sentenced to suffer 15 years R.I. And fine of Rs,1,00,000 each, or in default, to undergo further S.I. For two years each. On further conviction, under section 13 Arms Ordinance, 1965, appellants have been sentenced to undergo two years R.I. Each. Both the sentences have been ordered to run concurrently. Appellants have also been accorded benefit of section 382-B, Cr.P.C.
2. The appellants, feeling aggrieved, have challenged their conviction and sentences by way of filing Criminal Appeals Nos.67 and 68 of 2004. Since both the appeals have arisen out of one and the same Judgment, therefore, we propose to dispose them of through this single judgment.
3. The prosecution story in brief is that pursuant to spy information stated to have been received by P.W. Usman Ghani, the then S.H.O., Police Station, Pezu on 19-10-2002 that on the said day large quantity of contraband in the shape of charas and illicit Arms and ammunition will be smuggled/transported to Punjab in Datsun No,LC 4018-Lakki via Bannu-D.I. Khan Road, a `naqabande was conducted near Lucky Cement Factory when in the meanwhile at about 5 PM the said Datsun was sighted coming from Bannu side. A signal was given by the police and the Datsun was stopped at some distance. A person namely Hamidullah occupying front seat, on seeing the police party, got down from the Datsun and disappeared in the nearby trees. The police party chased him but in vain. On return, the Datsun was searched by the police which led to recovery of one bag containing unbaked charas weighing 41/2 kilograms, one cloth bag containing 22 packets of baked charas weighing 22 kilograms, two .30 bore pistols along with two spare chargers, three boxes containing 75 rounds of .30 bore, one cloth bag containing 100 rounds of .303 bore, one bag containing 600 rounds of 7.62 bore and one cloth bag containing 200 rounds of 7.62 bore from the rear portion of the Datsun. On inquiry, driver of the Datsun disclosed his name as Ghulam Saddique. A meagre quantity out of the bluk was separated for the purpose of chemical analysis.
The remaining was sealed in separate paracels. A murasila (Exh.PA/1) was drafted under section 9 Control of Narcotic Substances Act, 1997 read with section 13, Arms Ordinance, 1965 and sent to Police Station for registration of case. During investigation, accused Hamidullah was arrested on 6- 1-2001 by S.H.O. Wazirzada (P.W.1).
4. A formal charge for possession and transportation against the appellants was framed which they did not plead guilty. The prosecution in order to prove its case, produced five witnesses in all namely Wazirzada, S.H.O. (P.W.1), Tahir Khan MHC (P.W.2), Gul Rehman DFC (P.W.3), Muhammad Shafiq, A.S.-1. (P.W.4) and Usman Ghani, S.H.O. (P.W.5). After recording of prosecution evidence, statements of accused under section 342, Cr.P.C. Were recorded wherein they repudiated the prosecution allegations and claimed to have been falsely charged. They did not appear as their own witnesses on Oath as required under section 340(2), Cr.P.C. However, Ghulam Saddique accused produced Habibullah and Muhammad Shafiq in his defence as D.W.1 and D.W.2.
5. After the investigation the challan was submitted before Judge Special Court who tried and convicted the accused as mentioned above.
6. Commenting on the evidence of prosecution side. Mr. Muhammad Ashraf Khan, Advocate for Ghulam Saddique appellant contended inter alia, that the learned trial Court has wrongly appreciated the evidence on record; that prosecution evidence is full of doubts and contradictions; that the evidence produced by the appellant is more reliable and trustworthy qua the prosecution evidence and that no recovery has been effected from the possession of appellant and the appellant was totally unaware about the narcotics and illicit Arms and ammunition kept in the rear portion of the Datsun.
7. Mr. Faridullah Khan Kundi, Advocate for Abdul Hamid appellant maintained that learned trial Court has failed to appreciate the evidence on record and has unnecessarily relied upon the discrepant, tainted and untrustworthy evidence of prosecution case; that the learned trial Judge has not given any cogent ground for conviction of the appellant; that there are material contradictions in the prosecution evidence regarding weighting of narcotics and number of passengers in the Datsun and that the report of Chemical Examiner is not legal and authentic.
8. Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State controverted the contentions so raised and argued that prosecution evidence on record was worthy of placing reliance and it has rightly been done so; that the conclusions drawn and the reasons advanced by the learned trial Judge show fair evaluation of evidence which is in accordance with the settled principles in criminal cases; that there is no illegality or infirmity in the impugned judgment; that the prosecution stood on its own legs and has produced sufficient evidence to connect the appellants with the commission of crime; that the police witnesses had no enmity or grudge or motive to falsely implicate the appellants in this case; that huge quantity of narcotics and Arms and ammunition had been recovered from the Datsun which was being driven by Ghulam Saddique appellant and that trial Court has rightly convicted and sentenced the appellants, on the basis of apprehension of the appellant Ghulam Saddique from the spot.
9. At the first instance, we take up the case of appellant Ghulam Saddique, driver of the vehicle in question. It is an admitted fact that recovery of narcotics i.e, chars and Arms and ammunition was effected from the rear portion of the Datsun. Nothing was recovered from the personal possession of Ghulam Saddique appellant. At the time of occurrence, according to prosecution, he was driving the Datsun and a person namely Abdul Hamid was occupying front seat who, on seeing the police party got down from the vehicle and succeeded to run away from the spot. The police party chased him but in vain. The only question which needs our consideration is, as to whether there is any evidence available on record to show that appellant Ghulam Saddique had any knowledge of the recovered charas and Arms and ammunition lying in the rear portion of the Datsun. Our answer is certainly in the negative. There is no material available on record to prove as to who had kept such huge quantity of charas and Arms and ammunition in the Datsun. There is also no evidence that appellant Ghulam Saddique had knowledge of the presence of narcotics and Arms and ammunition in the vehicle. No legal evidence has been brought on record to connect the appellant with the commission of offence and mere presence of the appellant at the time of occurrence without any knowledge and in the absence of conscious possession over contraband of the appellant cannot be the basis of his conviction. No doubt, huge quantity of contraband of narcotics etc. Is allegedly recovered but that factum alone cannot be made basis of conviction of the appellant. The mere, fact that the police witnesses had no enmity or grudge or motive to falsely implicate the appellant, by itself, is not a strong circumstances to hold that whatever has been alleged by the prosecution should be implicitly relied upon without asking for supporting evidence.
In this regard, I am fortified by the view taken in Sarwar Jan v. The State (2004 PCr.LJ Peshawar 1224).
10. Adverting to the case of appellant Hamidullah, we find that prosecution has miserably failed to prove that he had a hand in the affair and the person alleged to have deboarded from the Datsun on seeing the police party and disappeared in the nearby trees was not someone else but in fact Hamidullah. The evidence produced by the prosecution cannot be relied upon in absence of corroborative evidence which is lacking in this case. It may be noted here that A.S.-I. Muhammad Shafique Khan (P.W.4) stated at the trial that the driver of the Datsun and the person sitting with him on front seat were not known to him prior to the occurrence. He further stated that the Datsun was occupied by three persons. The third person was not examined by the Investigating Officer. As against this, it is in the cross-examination of P.W. Usman Ghani S.H.O. That at the time of interception, there was no-one else in the Datsun except driver and Hamidullah. This glaring contradiction in between the statements of these witnesses could not be resolved. It has been rightly contended that the possibility of the third person having kept the chars and illicit of Arms and ammunition in the rear portion of the Datsun cannot be excluded. Having considered the matter from all angles, we are convinced that the case against Hamidullah is also totally of no evidence and the trial Judge failed to apply his judicial mind to the facts of the case. The manner in which the trial udge has proceeded in the case is violative of the principle governing administration of criminal justice. The Court while deciding the case should, at first, evaluate the prosecution evidence and see as to whether it has the capacity to bring home charge against the accused. Silcandar, v. The State (PLD 1963 Supreme Court 17), Mushtaq Ahmad, v. The State (PLD 1996 Supreme Court 574), State v. Bashir (PLD 1977 Supreme Court 408) and Ali Hassan, v.: The State (PLD 2001 Karachi 639).
11. For the above reasons, we accept both the appeals, set aside the conviction and sentences of the appellants by giving them benefit of doubt and acquit them of the charges levelled against them. They shall be released forthwith if not required in any other case.
12. We had, by our short order, dated 28-9-2004 allowed the appeals for reasons to be recorded later. Above are the detailed reasons.