' ATTAULLAH KHAN, J.---Yasin Gul convict has filed this appeal under section 48 of the Control of Narcotic Substances Act 1997 against the judgment dated 5-11-2009 passed by the learned Judge Special Court/Additional Sessions Judge-V D.I. Khan in case F.I.R. No,567 dated 26-10-2007 under section 9-C of the Act ibid registered at Police Station Cantt D.I. Khan, vide which he has been convicted and sentenced thereunder to ten year R.I. Along with fine of Rs,one lact, in default to suffer six months' R.I. With benefit under section 382(b) Cr.P.C. The truck in question along with the contraband charas and opium recovered therefrom was confiscated in favour of the State.
2. According to the murasila, on receipt of spy information that truck No, GLT/6898 containing huge quantity of narcotics in its secret cavities was being smuggled to the Province of Punjab, Abdul Ghafoor Khan Inspector along with police party had made a picket at Kashmir chowk D.I. Khan on 26-10-2007 when at about at 1000 hours, the said truck was seen coming from Bannu-Peshawar side which was stopped and apparently empty. Its driver disclosed his name as Yasin Gul son of Naseem Gul, Caste Khattak. He was thus arrested along with the truck and taken to the office of SIC situated in Police Line D.I. Khan where through Body Maker Muhammad Khalid and his apprentice Ghulam Mujtaba, 250 packets charas weighing 261 kilograms and forty packets weighing forty kilograms were recovered from its secret cavities. On the basis of said murasila, case F.I.R. No,567 ibid was formally registered.
3. After completion of investigation, challan was submitted in Court where the accused was produced but he professed innocence and false implication.
4. In order to prove its case, the prosecution examined five witnesses and closed its evidence.
Thereafter, statement of the accused was recorded under section 342, Cr.P.C. But neither he produced any defence evidence nor opted to examine himself on oath in terms of section 340(2), Cr.P.C.
5. On evaluating the evidence brought on file, the learned trial Judge found the accused guilty of the offence charged with and thus on conviction sentenced him as mentioned above. Hence this appeal.
6. Learned counsel for the appellant contended that the case is not proved because there are material contradictions in the evidence; that the narcotics were not recovered from the possession of accused, but from the secret cavities of the truck and, therefore, the conscious possession is not proved. The presence of the accused in the truck is also doubtful because in spite of allegation that he was driving the truck but neither his driving license was taken into possession nor it was Investigated that how a truck driver was all alone driving empty truck to Punjab from Pukhtunkhwa.
Registration of the truck discloses the name of the owner as Nasir Khan son of Hikhi, resident of Khyber Agency, but in spite of it he was not associated with the investigation. Even he was not made co-accused. According to the learned counsel, the convict/appellant deserves acquittal.
7. On the other hand, the learned Deputy Advocate-General representing the State argued that the F.I.R. Was promptly lodged, the accused was apprehended from the truck and the charas and opium were recovered from the secret cavities. No one else except the accused was present, therefore, he would be presumed to be in conscious possession of the contraband.
8. We have carefully gone through the record and considered the arguments of the learned counsel for the parties.
9. We would first discuss the contradictions in the evidence of prosecution. Abdul Ghafoor Khan Inspector who is Investigating Officer of the case appeared as PW2. He drafted the murasila and prepared recovery memos at one p.m. He again said that he prepared the murasila after one p.m.
And then prepared the recovery memo. These are contradictory statements which adversely affects the roots of the case. About the timings of preparation of these documents, the Investigating Officer was not sure. Some time, he says that both the documents were prepared after one p.m. He again stated that the recovery memo. Was prepared after drafting the murasila and for the third time he deposed that he prepared the murasila after one p.m. And then prepared the recovery memo. The occurrence took place at about 0100 hours. So if we consider the time of occurrence and compare it with the timing of murasila and preparation of recovery memo, it creates doubt. Similarly, P.W. 2 stated in cross-examination that he prepared six parcels but in the Court six parcels and one bundle were produced which were not properly B sealed as mentioned in the Recovery Memo. This is again an illegality. There is no clear cut evidence about the number of parcels prepared. He has also stated that he cannot tell the name of the person who prepared the seventh bundle. The next statement is of P.W.4, namely, Ghulam Mujtaba who has dismantled and opened the secret cavities of the truck for the purpose of recovery of narcotics. According to him, the rear floor of the truck was opened and secret cavities were found, filled with charas and opium in packets. He deposed that the contraband recovered from the truck were taken into possession through recovery memo. Exh.P.C. In cross-examination, he has stated that the local police came after him at about 11-00 a.m. And on the spot he has consumed about 2/3 hours in dismantling the floor of the truck. It means that till one or two p.m. The dismantling of the truck was in process meaning thereby that after one or two p.m. The fact disclosed that the packets recovered were having charas and opium. This portion is contradictory to the statement of I.O. Who has stated that the recovery memo was prepared upto one p.m. Keeping in view the time of dismantling of the truck disclosed by P.W.4, the time disclosed by the Investigating Officer, the recovery of narcotics has become doubtful. It means that either P.W.4 is telling lie or P.W.2 and, therefore, doubts have arisen. Furthermore, this witness has also admitted in the cross-examination that he is unaware about the contents of recovery memo Exh. P.C.
10. If we consider this admission, again it would create doubt because Exh.PC is very important document vide which the contrabands were taken into possession and P.W.4 is its marginal witness, so his lack of knowledge also creates doubt about the recovery of the narcotics. He has also admitted that the charas etc; were not weighed before him and also the contraband were not sealed in his presence.
11. Keeping in view the contradictions in the statement of P.W.4, we doubt that this witness had dismantled the truck. Similar is the case of recovery of the contraband. There is likelihood that P.W.4 has not witnessed the recovery. So in our opinion, the contradictions in the statements of P. Ws. 2 and 4 are material which adversely affect the case of the prosecution.
12. Next arguments is that the contraband were not recovered from the possession of the accused.
This is an admitted fact that the contraband were recovered from the secret cavities prepared for the purpose in the truck and not from the personal possession of the accused. Now question arises whether the presence of the narcotics in the secret cavities of the truck was in the knowledge of the accused or not. This was the duty of the prosecution to probe this aspect of the case, but the Investigating Officer has failed to do so. In cross-examination, he has admitted that he had not collected any evidence regarding the fact that the accused was in the knowledge of having narcotics in the truck. In narcotics cases, conscious possession is essential unless it is proved that the accused cannot be held guilty. In this respect, we rely on the case of Ghulam Saddique v. The State reported as 2005 YLR 605, wherein it has been held c that: "At the first instance, we take up the case of Ghulam Saddique driver of the vehicle in question. It is an admitted fact that recovery of narcotics, i.e, charas 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 the 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".
13. Similar view has been taken in 2006 PCr.LJ 58 and 2008 PCr.LJ 480.
14. Keeping in view the above facts and circumstances of the case and the case-law on the subject cited above, we are of the opinion that the prosecution has failed to prove possession of the contraband with the accused.
15. Another fact to be taken into consideration is the absence of driving license. Admittedly, no driving license was recovered from the accused who was allegedly driving the truck. The police took into possession the registration book in the name of Nasir Khan and root permit. In D spite of the allegation that the accused was driving the truck but he was not asked about his license. It is nowhere mentioned in the statement of the Investigating Officer that he ever asked the accused regarding his driving license. This fact also suggests that the accused was not driving the truck and as such his presence in the truck and on the spot is doubtful. So this is also a dent in the prosecution case.
16.. The next fact to be taken into consideration is the non-association of owner of the truck. The I.O.
Recovered the registration book and root permit from the dash board in the name of one Nasir Khan, but the evidence reveals that the said Nasir Khan has never been associated with the investigation. In the case in hand, in the given circumstances, i.e, when the contraband was recovered from the secret cavities of the truck, it was necessary for the Investigating Officer to have associated the owner of the truck with the investigation process, because there was possibility of preparation of all these secret cavities in the truck by him. So this fault on the part of the prosecution has damaged its case.
17. We have also noted that in this case the parcels were not sealed and were produced in the trial Court in that form. Even the marginal witness who appeared as P.W.4 has admitted that the parcels were not sealed in his presence. This fact has also damaged the prosecution case.
18. We are, therefore, of the firm view that the exclusive possession of the narcotics of the accused has not been proved. The presence of the accused in the truck is also doubtful. The prosecution has failed to prove case against the accuse beyond any shadow of reasonable doubt the benefit whereof goes in favour of the accused.
19. Consequently, we accept this appeal, set aside the impugned conviction and sentences of the appellant an acquit him of the instant charge. Shall be set free forthwith if not wanted in any other case. However, the impugned order of the trial Court with regard to the confiscation of the case property, i.e, truck and narcotics shall remain intact which shall be disposed according to law by the concerned authorities.