1. Ijaz-ul-Hassan, J.--The above titled appeal has been preferred by Gul Amin appellant to challenge the judgment dated 1.3.2005, passed by learned Judge Special Court (CNS), NWFP, Peshawar, whereby the appellant was convicted under Section 9(c) of the Control of Narcotics Substances Act, 1997 and sentenced to suffer imprisonment for life and fine of Rs, 4.00.000/- or in default thereof to undergo two years S.I. more. The appellant was also extended benefit of Section 382-B Cr.P.C. The Motor Car alleged to have been used in the commission of crime was forfeited in favour of the State.
2. The necessary facts giving rise to the filing of the present-appeal are, that on receipt of secret information on 12.1.2004 by Anti-Narcotics Force authorities that on that date at any time huge quantity of narcotics would be smuggled from Jamrud 'Maga Ghair' to Punjab in Motor Car having fake Army Plate No 61374, a raiding party consisting of Inspector Samin Jan Khan, SHO, Police Station, ANF Peshawar, ASI Adeel Riaz, Captain Tahir Aziz and others, laid `Naka Bandi' near Railway Crossing, Nowshera. In the meanwhile, at about 20.00 hours, aforesaid Motor Car was sighted coming from Peshawar side. Driver of the car on seeing the raiding party succeeded to make good his escape and disappeared in the nearby `abadr. However, a person sitting on the front seat of the car was overpowered and apprehended. On inquiry, he disclosed his name and parentage as Gul Amin son of Malang, resident of Shah Gah Nia Gadra Warhi, Dir. A cursory'search of the vehicle was made at the spot. As there were no adequate arrangements for search the motor car alongw' ith accused was brought to police station, ANF, Peshawar, A thorough search of the car led to recovery of 209 Rackets charas, 5 packets charas `garda' and one packet opium, wrapped in plastic envelops, concealed under foot mats and dickey of the car. The charas was weighed and found 217.400 kgs. and 5 kgs, respectively. The opium was also weighed and found one kg. A meager quantity was segregated out of the seized property and sent to office of Chemical Examiner to Government of Punjab, Rawalpindi. The remaining was sealed into parcels. A 30 bore pistol, 25 cartridges of the, same bore with a charger were also recovered from the dash board of the car. A pair of number plate 7865 LXA was also recovered. From the personal search of the accused, his National Identity Card and cash amount of Rs, 500/- were also secured into possession. The accused was formally arrested and a case was registered against him, vide FIR No, 1 dated 12.1.2004, under Sections 9(c) CNSA, read with Sections 417/467 PPC and Section 13 Arms Ordinance, 1965.
2. 3.During trial accused was summoned. Copies under Section 265-C Cr.P.C. were provided to the accused and thereafter formal charge against him was framed. The accused did not plead guilty to the charge and claimed trial. The prosecution in order to prove its case produced two witnesses namely, Inspector Samin Jan Khan (PW. 1) and FC Matirur Rehman (PW. 2).
3. 4.Accused in his statement recorded under Section 342 Cr.P.0 denied the prosecution allegations, professed innocence and in answer to question, 'as to what is your statement and why are your charged', stated: "I am innocent and falsely implicated in the instant case. In fact I have got a job with one person known as Doctor in Jamrud few days before the occurrence. I was unaware of the fact that the said doctor is a drug smuggler. That doctor directed me to accompany his family towards Nowshera, so being his servant, I obeyed his orders."
4. 5.His statement was also recorded under Section 340(2) Cr.P.C. Wherein he reiterated his stand. In defence he produced Habibur Rehman (DW.1) and Muhammad (DW. 2).
5. 6.At the conclusion of trial, after hearing arguments of learned counsel for the parties and going through the material available on record, learned trial Court concluded that the prosecution has succeeded to establish its case against the appellant beyond shadow of reasonable doubt. The appellant was convicted and sentenced, per the impugned judgments, as mentioned and detailed above.
6. 7.We have heard Mr. Noor Alam Khan, Advocate for the appellant as well as Mr. Salahuddin Khan, leaned DAG appearing on behalf of the State and perused the record with care.
7. 8.Learned counsel for the appellant mainly contended that appellant is neither owner of the vehicle nor the alleged recover was effected on the pointation of the appellant nor appellant has any connection with the alleged recovery; that judgment of the trial Court is manifestly wrong and cannot be allowed to remain intact.
8. 9.Ps against that, learned DAG for the State defended the impugned judgment on the ground that recovery of huge quantity of charas and opium has been proved through' convincing and cogent evidence; that both the prosecution witnesses have fully supported the case and their evidence has further been supported by the positive reports of Chemical Examiner besides the fact that the police officials are as good prosecution witnesses as compared to any other witnesses.
9. 10.The prosecution primarily is supposed to establish guilt against the accused beyond shadow of reasonable doubt by bringing trustworthy, convincing and cogent evidence for the purpose of awarding conviction. To inflict capital punishment of death or that of life imprisonment, the prosecution is under statutory obligation to furnish the first degree of proof through high quality evidence reasonably creating nexus of accused with the commission of the crime.
10. 11.In the instant case we feel that the judgment written by the trial Court is not a fair judgment. It is not based on proper, just and legal appreciation of the evidence on record. Case of the prosecution is doubtful in nature and evidence available on record is not in any way sufficient to lead to a conclusion that the appellant be convicted of the offence alleged against him. There is no credible evidence on record to connect the appellant with the commission of the offence leaving aside the question of conscious possession of charas and opium by the appellant, the prosecution even failed to disclose any connection of appellant either with the motor car or with the ownership of the contraband charas and opium, which were recovered from the dickey and foot mats of the car. It is significant that no driving license was recovered from the appellant and it was also not alleged that he was driving the car without any license. Appellant has not been challaned for driving the car without license. The prosecution failed to lead any evidence in the case to establish the connection of the appellant with the vehicle from where the contraband charas and opium were recovered, either as its owner or driver or in any other capacity. We may mention here that in cases where contraband material is found lying concealed in a vehicle in a manner that it is not discoverable from inspection of the vehicle and it is necessary to have special knowledge about its concealment to recover it then in such cases, mere presence of a person in such vehicle could not make him liable for conscious possession of such contraband articles. In such cases, it is necessary for the prosecution to further show that presence of contraband material was within his knowledge or that he has such a connection with the vehicle as amounting to his conscious possession of such contraband articles lying concealed in the vehicle. After going through the entire prosecution evidence, we have not been able to discover any connection of the appellant either with the ownership of the car or his connection with the vehicle as a driver or cleaner of the car muchless the possession of the contraband material which was recovered from its secret cavities. In the present case it cannot be said on the basis of evidence on record that the prosecution succeeded in establishing any connection between the appellant and the contraband material recovered from the motor car in question.
11. The presence of the appellant in the motor car could not be held to be enough to convict him where it was not proved through reliable evidence that the appellant was transporting a forbidden article. No such evidence against the appellant was led during trial. In the given circumstances, it is not possible to convict the appellant in absence of proof that he was the owner of the motor car or the drug. This is unfortunate that the investigating agency did not investigate the case honestly.
12. They had left behind much to be done by them. They confined the investigation, with ulterior motive, to the extent of person who was found present in the motor car. They were required to investigate the case thoroughly to apprehend the real culprits. They did not bother to find out the owner of the motor car or contraband material recovered from it. It appears that they had acted with ulterior motive, to save the skin of the real accused. In such a situation, the possibility that appellant did not know that the charas and the opium was concealed in the dickey and foot mats of the car, could not be excluded.. Nek Muhammad and another vs. State (PLD 1995 SC 516) and Zahoor Ahmad Awan and another v. The State (1997 SCM R 543).
14. In view of what has been discused above, we find that prosecution has not been able to establish its case against the appellant beyond shadow of reasonable doubt and the appellant is entitled to a finding of acquittal. While accepting the appeal, we set aside the impugned judgment and direct that the appellant shall be released from jail forthwith provided he is not required in any other case. We had by our short order announced on 27.9.2006, accepted the appeal and acquitted the appellant for reasons to be recorded latter. Above are the detailed reasons. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.