' YAHYA AFRIDI, J.---Through this single judgment, we shall dispose of Criminal Appeal No 434/2009 filed by Yar Muhammad seeking his acquittal and Criminal Appeal No, 6/2010 filed by Tila Khan and Sheikh Muhammad Aamir for the return of a vehicle, as both the appeals arise out of one case initiated with the registration of F. I. R. No, 770, dated 24-12-2007 under section 9 (c) of the Control of Narcotic Substances Act, 1997 "Act" in Police Station Gulbahar Peshawar.
2. Muhammad Fayaz (P.W.5), the then Station House Officer of Police Station Gulbahar, Peshawar City on 24-12-2007 along with police party, while on Gasht, on suspicion searched a white colour plastic bag lying on the front seat of passenger bus bearing Registration No,LXC 8584 ("passenger bus") parked on the service road near GM Bus Stand, Peshawar City found the same to contain 20 slabs of charas pukhta each weighing 1200 gram. He further added that he in presence of the marginal witnesses, separated 5 grams from each of the 20 slabs and sealed them into different parcels, while the remaining contraband was separated and sealed into another parcel (Exh.P/1).
He further stated that the bus in question was taken into possession by him vide recovery memo.
(Exh. P.C.) and he also claimed to have arrested the accused from the spot who disclosed his name to be Yar Muhammad son of Agha Muhammad resident of Kochi Abad, Yakatoot, Peshawar.
Therefore, he claimed to have drafted the murasila (Exh.P.A./1) and sent the same to the Police Station for registration of the case vide F.I.R. (Exh.P.A.). He further started that he drafted the application (Exh.P.S.) through which the samples were sent for chemical examination and the same were finally reported as positive to be charas (Exh. PK. 1).
' Samin Jan (P.W.4) is a marginal witness to the recovery memo through which the contrabands (Exh.P.C.) were taken into possession and the samples of 5 grams from each of the 20 slab was separated and put into 20 different parcels and sealed.
' Irshad Aziz (P.W.3) deposed that while posted as Moharrar at Police Station, Gulbahar Peshawar City, he received the murasila the contents of which were duly incorporated in the F.I.R. (Exh.P.A.).
' Noor Muhammad (P.W.2) is the Investigating Officer of the case and stated to have prepared the site plan and recorded the statements of all the witnesses.
' Waris (P.W.1) stated that on completion of the investigation, he submitted the complete challan in Court.
3. After producing five witnesses, the prosecution closed their evidence. Thereafter, Yar Muhammad recorded his statement under section 342 Code of Criminal Procedure 1898 (" Cr . P C "). The appellant during his examination denied any recovery to have been made from his possession. He objected to the Forensic Science Laboratory report, contending that the same had been delayed for over two months. As far as his arrest, he stated that he was not present on the spot and that he was called by the local police from his house after the contrabands had been recovered from the passenger bus he had purchased from Lal Zada. He stated that the said vehicle is not in his name but he is paying monthly instalment to Lal Zada. In this respect, he also mentioned the name of Zahir Shah being the driver and Mir Zaman and Nadar being the conductors of the passenger bus.
He denied ownership of the contrabands or any link therewith. He very candidly stated that he is the owner of the passenger bus and that he had no concern with the contrabands recovered from the passenger bus.
4. The learned counsel for the appellant in Criminal Appeal No,434 of 2009 argued that there was no evidence produced by the prosecution to even suggest much less prove that the appellant was present at the time of the recoveries of the contraband from the spot. He also contended that there is no evidence to prove that the appellant was a driver, conductor or a passenger of the passenger bus.
' The learned counsel pointed out that the application for the chemical examination of the contraband was made on 24-12-2008 while the report thereof dated 25-2-2008 was with no explanation.
' The learned counsel further emphasized that the contrabands, which were inspected by the trial Court, were not the same as the prosecution had alleged in its evidence. He thus questioned the positive forensic report of the contraband.
' The learned counsel further argued that it was the bona fide of the present appellant that he introduced himself as the owner of the passenger bus to the police even after the recoveries of the contrabands had been made from the said bus.
' He finally argued that the weak and mala fide investigation of the police resulting in implicating and trying the present appellant in the present case. The learned counsel proclaimed the innocence of the appellant as he was falsely charged, tried and convicted. Hence, he argued that he may be acquitted.
5. The learned State counsel vehemently refuted the contention of the learned counsel for the appellant and stated that the prosecution had proved the recovery, the Forensic Science Laboratory report was positive and thus the trial Court had rightly convicted and sentenced the present appellant.
6. Reverting to Criminal Appeal No,6 of 2010 filed by Tila Khan and another, the said appeal relates to the case property namely, the passenger Bus bearing Registration No, LXC 8584.
' Tila Khan and Sheikh Muhammad Aamir, the appellants had filed an application through one Lal Zada for return of the case property which was rejected by the Additional Sessions Judge-V, Peshawar vide order dated 25-11-2008 for the reason that:- "the petitioner did not come forward in person and filed this petition through attorney Pir Zada with no genuine documents whereby they can claim return of the vehicle"
' Thereafter, the appellants moved the jurisdiction of this court through a Criminal Miscellaneous Petition No,235 of 2008, which was withdrawn on 22-6-2009 with the following orders:--- "The former wants to withdraw the instant petition stating that the trial of the accused is almost complete, therefore, after the decision of the main case he would submit another application for custody of the vehicle. This petition is, therefore, dismissed as withdrawn."
7. The appellants contend that they are joint owners of the public transport vehicle/passenger bus and that the trial Court had without complying with the enabling provisions of the Act and the Cr . P . C . Had passed the impugned judgment, whereby their rights had been violated and that their property was duly confiscated without any reason, whatsoever.
8. The valuable argument of the learned counsel of the parties heard and the available record of both the appeals duly considered with their assistance.
9. The record of the case clearly reveals that the prosecution has failed to prove the physical presence of the appellant at the time of the recovery of the contrabands from the passenger bus.
When his presence not proved, the prosecution should have at least produced evidence to the effect that the present appellant had conscious knowledge about the contrabands in the passenger bus. This too was not done.
' On the other hand, the conduct of the appellant was very much natural and innocent. He approached the police party after the recovery of the contrabands is effected from the bus and to introduce himself as the owner of the said vehicle. Even Muhammad Fayaz (P.W.5) while recording the murasila of the incident at the end thereof states that a person appeared ({{URDU TEXT}}) and introduced himself as Yar Muhammad being the owner of the vehicle from which the recovery was made. What is important to note is that the vehicle was not even registered in his name and he could have very easily evaded his arrest, the trial and conviction which followed thereafter. His conduct is surely not that of a criminal offender.
10. As far as the recovery of the B contrabands from the passenger bus is concerned, the prosecution has proved the same. However, there is a missing link between the recovered contraband and the positive chemical report (Exh.P.W.)
' In this regard Samin Jan (P.W.4) narrates the process as:--- "I am marginal witness to recovery memo Exh. P.C. Vide which the I.O. Took into possession 20 slabs of charas `Pukhta' wrapped in plastic bag. Each slab was 1200 grams total 24000 grams. The I.O.
Separated 5/5 grams from each slab for chemical examination and sealed it into 20 parcels, whereas, the remaining quantity was separately sealed which is Exh. P. I. "...P. W.5 states as follows:- -- ' During the cross-examination of the said witness, on the request of the learned counsel for the appellant, the case property was opened and the trial Court observed that:- "Twelve packets containing two slabs, wrapped in plastic, however, the sample was obtained from both slabs equally by cutting its edges/ corners, five packets was found of one slab while three packets were found containing five slabs. "
The revelation which emerges from the said inspection of the contrabands by the trial Court casts serious doubts on the prosecution version of the recovery of the contrabands and its positive FSL report.
' According to the prosecution evidence, there were 20 slabs of charas recovered, weighed and sealed, while the inspection of the same by the trial Court shows them to be otherwise. This crucial contradiction was not even explained by the prosecution, thereby creating a doubt regarding the positive FSL report being that of the recovered contrabands at the time of its actual seizure.
11. We would also like to point out the slackness on the part of the Investigating Officer. He despite being provided the names of the driver, and the conductor took no steps to arrest them or to include them in the investigation. More so, he did not even verify the ownership of the vehicle from the Registering Authority.
' As a result there are more than one claimant to the passenger bus. Yar Muhammad alleges ownership even at a dire time. He candidly admits that he does not hold any registration of the passenger bus in his name, as he is making payments for the same to one Lal Zada. On the other hand, Tila Khan and Sheikhlk Muhammad Aamir claim ownership based on the registration book of the passenger bus. However, they apply for the return of the vehicle through one Lal Zada son of Mian Gul Sadaf residents of Dahgari Gardan Peshawar City.
12. In view of the absence of any evidence to establish appellant's presence at the time of recovering the contrabands and his knowledge about the same being in the passenger bus, create serious doubts in the prosecution's case. Moreover, the missing link between the recovered contrabands and the positive FSL report which is clearly demonstrated when the trial Court inspects the contrabands and finds the same to be different in number to those packed and sealed by the recovering police officer. The benefit thereof would surely go to the appellant.
Furthermore, the matter is further compounded by the slackness or in fact negligent investigation.
13. In regard to the Criminal Appeal No,6 of 2010 filed by Tila Khan and Sheikh Muhammad Amir through Lal Zada against the confiscation of the passenger bus, the trial Court erred in not verifying the ownership of the vehicle before passing the impugned confiscation order dated 8-9-2009.
' Section 32 of the Act provides that whenever an offence under the Act is committed using the vehicle to transport the contrabands, the vehicle used is liable to confiscation. This power to confiscate is, however, subject to a provision provided in subsection 2 of section 32 of the Act which reads:--- "Provided that no vehicle, vessel or other conveyance shall be liable to confiscation unless it is provided that the owner thereof knew that the offence was being or was to be committed."
' In the present case, we note that the trial Court has confiscated the passenger bus carrying the contrabands without any proof of the conditions precedent stated in the aforementioned provision of the Act. There is no evidence produced by the prosecution to prove firstly as to who was the owner and that the said owner knew that the offence was being or was to be committed.
' Section 33 of the Act provides further power to the Director-General ANF to apply to the special Court/trial Court to allow sale of a vehicle, which is seized under this Act in case the sale thereof would benefit the owner. The said sale is to proceed in accordance with the rules made under the Act. The provision further provides that in case it is decided that the vehicle seized was not liable to such confiscation, the entire sale proceeds are to be handed over to the owner.
' In the circumstances, the order of confiscating the passenger bus, without any evidence to prove the conscious knowledge of the owner, was illegal and without lawful authority.
14. In the above perspective, we believe that prosecution has not been able G to prove the case against the appellant beyond reasonable doubt.
Accordingly, we accept Criminal Appeal No, 434 of 2009 set aside the conviction and sentence awarded by the Additional Sessions Judge/Judge Special Court, Peshawar dated 8-9-2009 and Yar G Muhammad son of Agha Muhammad resident of Peshawar is acquitted of the charges under section 9(c) of Act XXV of 1997 and shall be released forthwith if not required in any other case.
Accordingly, we also accept Criminal Appeal No, 6 of 2010 filed by Tila Khan son of Haji Gulab Khan and Sheikh Muhammad Amir son of Sheikh Tajuddin and set aside the order for disposal of vehicle bearing Registration No,LXC 8584 dated 8-9-2009 passed by Additional Sessions Judge/Judge Special Court, Peshawar and remand the case to Judge Special Court, Peshawar to inquire into the claims of ownership made by the present appellants or any other person and thereafter hand over the confiscated Passenger Bus bearing Registration No,LXC 8584 to its legal owner.