' MUHAMMAD ALAM KHAN, J.---This order will dispose of the above criminal appeal titled Naseeb Muhammad and others v. The State and also Criminal Appeal No,20 of 2008 titled Jamshed v. The State which arise out of the same judgment of the learned Sessions Judge/Zilla Qazi, Buner dated 7-12-2007 .
2. In Criminal Appeal No,841 of 2007 Naseeb Khan and Gul Muhammad are aggrieved of the impugned judgment of the learned trial Court vide which both of the accused appellants were found guilty under section 9(b) C.N.S.A. And were convicted and sentenced to one year R.I. And fine of Rs,5000 each and in case of default of payment of fine, they were to undergo one month S.I.
3. In Crime Appeal No,20 of 2008 appellant Jamshed is aggrieved of the judgment with respect to the confiscation of the vehicle involved in the commission of the offence.
4. Regarding Criminal Appeal No,841 as well as in the connected appeal Jamshed Khan relative of the convicts was heard in detail. It was submitted that the prosecution had failed to prove the case against the convicts/appellants by not producing any cogent and convincing evidence. The evidence produced against them were police officials and their testimony was liable to be ignored by the learned trial Court. It was also argued that the vehicle, which belonged to Jamshed Khan, was not liable to confiscation as the said vehicle had been rented out to the accused appellant Gul Muhammad and the present appellant Jamshed had no knowledge regarding the commission of the offence. That if the accused appellant had used the vehicle in the commission of the offence that was not binding on Jamshed and so the order of confiscation in respect of the vehicle was bad in law.
5. We have gone through the record of the case and perused the statements of the witnesses produced by the prosecution during trial. Perusal of the record shows that Amir Ghazan IHC P.W.1 had fully proved the recovery of the contraband from the possession of the accused. The same has further been augmented by P.W.2 Niamat Khan A.S-I. These witnesses have been subjected to very lengthy cross-examination but nothing adverse has been squeezed out from their months to dislodge the recovery effected from them by the prosecution. Similarly, the statement of Afsar Khan S.-I. Was recorded which was incorporated in the F.I.R. Copy Exh. P.A. This witness has also categorically proved the recovery from the accused convict/appellants. They were held up in Motorcar bearing No,D-9876 Peshawar which was taken into possession vide Exh.P.W.3/1. In the cross-examination nothing has been brought on record to prove that they had any animosity against the convicts/appellants. Thus the prosecution of the two accused/appellants was in accordance with law and the conviction and sentence recorded by the learned Special Court is maintained. However, on the quantum of sentence, a lenient view is taken as the total contraband recovered from the possession of the convict appellants was one Kilogram Charas. Therefore, the sentence of imprisonment is reduced to the one already undergone while the remaining sentence of fine is maintained. The instant appeal of the appellants Naseeb Muhammad and Gul Muhammad is dismissed with the above modification in the sentence of imprisonment.
6. Regarding the appeal filed by Jamshed bearing Criminal Appeal No,20 of 2008, perusal of the record reveals that Jamshed son of Rahim Khan appellant was stated to be the owner of the said vehicle and the learned trial Court while handing over the vehicle on Superdari to Jamshed vide order of the trial Court dated 8-11-2006 had held that Jamshed was the owner of the Motorcar bearing No,D-9876 Peshawar which was given to driver Gul Muhammad on rent and in this respect the affidavit of Gul Muhammad Exh.PA has been placed on record. Since it is not established by the prosecution that Jamshed had any conscious knowledge of the facts that his vehicle was being used for trafficking of contraband, then in such circumstances, it was not liable to confiscation and the confiscation order passed by the trial Court in the impugned judgment is liable to be set aside.
7. Resultantly, Appeal No,20/2008 of Jamshed is accepted and the confiscation order in respect of the vehicle in question is set aside. The vehicle is on Superdari with him pursuant to a personal bond furnished by him, which bond stands discharged.
8. We had disposed of the above two consolidated appeals vide our short order dated 21-2-2008 and the above are the reasons for the same.