' MUHAMMAD ALAM KHAN, J.---Each of convict appellants Fazle Maula and Shaer have been sentenced to life imprisonment under section 9 C.N.S.A., in trial of Hadd Case No,2/C.N.S.A. Of 2005 carried out in case F.I.R. No, 70 dated 20-3-2005 of Police Station Domail, Bannu in the Court of Mr. Nasrullah Khan Gandapur, Additional Sessions JudgeIII/Judge Special Court, Bannu. Hence, this appeal against conviction.
2. We have heard Messrs Muhammad Tariq Afridi and Mr. Nasrum Minallah Advocates for the convict-appellants and Mr. Farooq Akhtar, Advocate for the State. Record has been perused.
3. Learned State counsel, at the outset, invited attention of the Court towards Cr. Misc. No,22/2009 moved by the State for recording additional evidence under section 428, Cr.P.C. Which has been replied to by the opposite side with objections. We directed them to argue the whole case and if the Court deems necessary, shall record additional evidence, otherwise the appeal shall be decided on available record.
4. According to prosecution case, Bus No,K-9553- Peshawar met with accident in the limits of Police Station Domail, regarding which a case was registered under sections 320/337-G/427, P.P.C. Vide F.I.R. No,69 dated 20-3-2005 of police station Domail. During checking of the Bus, a secret cavity became visible behind the last broken seat wherein plastic packets were visible. When opened, they were 75 packets containing charas and taken in possession. Samples were separated, sealed and the present case was registered by Muhammad Tahir Khan Dawar, S.H.O, Police Station Domail vide F.I.R. No,70 dated 20-3-2005 of the same police station, under section 9 Control of Narcotic Substances Act, 1997.
5. Fazle Maula convict-appellant was already arrested in the accident case as driver of the Bus and he was arrested in the present case, presuming that the charas was in his possession. Later on, his co-accused Shaer convict-appellant was arrested on the information of Fazle Maula. Both were charged under section 9 C.N.S.A. On 21-12-2005 which was contested but after recording evidence, the trial Court convicted them as mentioned above.
6. The gravemen of the arguments of learned counsel for the convict-appellants was that Fazle Maula convict appellant has been arrested on suspicion, there is no evidence at all that he was driving the Bus and as such, he was in controlling position of the Bus. Similarly, there is no evidence at all the convict-appellant Shaer has any nexus with the charas hidden in the secret cavities of the bus.
7. After scanning the record with the assistance of learned counsel for the parties, it came to surface that there is no admissible evidence of any kind to show any nexus of Shaer convict- appellant with the recovered charas. The same is the case of convict-appellant Fazle Maula. The prosecution was bound to prove with cogent evidence that he was driver and Shaer was the conductor of the Bus, but no evidence is on record in this respect.
8. At this juncture learned State counsel agitated that the application of State for recording additional evidence may be allowed and the witnesses in the connected case F.I.R. No,69 pertaining to the accident may be examined in this case who initially arrested the convict appellant Fazle Maula as driver of the Bus. In order to see justification of calling such witnesses in the aforesaid F.I.R. No,69, we have gone through the substance of aforesaid F.I.R. No,69, the copy of which has been exhibited on the present record as Exh.P.W.6/DX-4. It is mentioned in this F.I.R. That a person, who was caught by Highway police and whose name was Fazle Maula, was arrested in that case as driver. Meaning thereby that even in that case, there is no evidence that Fazle Maula was the driver of the Bus which met the accident. In fact he was arrested by some other persons or Highway police post whose names are not known and he was treated to be driver because he told so before the police. As far as his alleged confession that he was the driver of the Bus is concerned, it is not admissible being a confession before the police. In such circumstances when the names of the persons, who had allegedly initially arrested Fazle Maula convict-appellant, are neither known, nor mentioned in the Cr. Misc. No,22/2009, acceptance of the application would delay the disposal of case but not excepted to add anything in the prosecution case. Moreover, the application was rightly opposed because at this stage, the prosecution cannot be allowed to create evidence to strengthen its case by filling up lacunae. We, therefore, dismiss the application of State bearing Cr.
Misc. No . 22/2009 for recording additional evidence.
9. Now again diverting to the present appeal, we have concluded that the convict-appellants have been convicted on the basis of conjectures and surmises and not on the basis of tangible evidence. Neither there is ocular testimony, nor documentary proof of B the fact that Fazle Maula was the driver and Shaer was the conductor of the Bus in question. They have not made any confessional statement. Their conviction is, therefore, not sustainable for lack of evidence.
10. We, therefore, accept this appeal, set-aside the impugned judgment to the extent of conviction and sentence of both the convict-appellants. They are acquitted of the charge levelled against them and are directed to be released forthwith if not required in any other case.
11. Above are the detailed reasons for our short order dated 25-3-2009. 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.