IMTIAZ ALI, J.---Through this criminal appeal appellant Sajid Khan and Fazal Ghani have called in question judgment of learned Additional Sessions Judge-XIII, Peshawar dated 14-9-2009 where by they have been convicted for offence under section 9(c) Control of Narcotic Substances Act, 1997 and have been sentenced to undergo life imprisonment R.I. and to pay a fine of Rs,20,000 or in default to undergo further six months' S.I. Benefit of section 382-B, Cr.P.C. however has been extended to the appellants.
2. The appellants had been involved and arrested by local police of Police Station, Pishtakhera in case F.I.R. No,818 dated 24-12-2008 under section 9(c) C.N.S.A. Allegations against the appellants were that 8240 grams Pukhta charas and 5080 grams garda charas was recovered from the secret cavities of motor car bearing Registration No,FSO 2499 which was driven by appellant Sajid 'Khan while appellant Fazal Ghani, his father, was also present in the car. On completion of investigation and submission of complete challan, accused were charged, to which they pleaded not guilty and claimed trial.
3. We have heard learned counsel for appellants, learned counsel representing State and perused the record of case, carefully.
4. Learned counsel for the appellants argued that prosecution had failed to prove conscious possession of the appellants; that no specifications of so-called secret cavities were given in the F.I.R. which lacuna was attempted to be filled through statements of P.Ws.; that even such statements were contradictory, which demolished the case of prosecution; that there were material contradictions in the testimony of P.Ws. with regard to number of packets, form of narcotics, mode of taking of samples; that prosecution had failed to establish any connection of appellants with the vehicle or their knowledge of presence of secret cavities and concealment of charas, therein; that report of FSL was at variance with the prosecution case. Learned counsel representing the State half-heartedly supported the judgment of trial Court, however, candidly expressed his inability to explain away material contradictions in prosecution evidence brought forth by learned counsel for appellant. Learned counsel for appellant placed reliance upon 2010 SCM R 927, 2010 PCr.LJ 825, 2010 PCr.LJ 360, 1997 SCM R 543, 2005 YLR 605, 2008 SCM R 991, PLD (sic)
Supreme Court 516, 2010 YLR 561, 2010 PCr.LJ 825 and 2010 YLR 1974.
5. According to. the prosecution case as set up in F.I.R., 7 packets of charas Pukhta weighing 8240 grams and 4 packets charas garda weighing 5080 grams were recovered from secret cavities in the vehicles. Appellant Sajid Khan was driving the vehicle while his father appellant Fazal Ghani was accompanying' him. It may be pointed out that no details as to the location of secret cavities was given in the F.I.R. To prove its case prosecution examined as many as four P.Ws. of which P.Ws.
1, 2 and 4 are material witnesses, P.W.3 being S.I., who incorporated contents of Murasila in F.I.R.
6. Close examination of testimonies of aforesaid witnesses reveals that not only A they have made improvements but have contradicted each other on material points. P.W.1 Fazal Muhammad DSP, who was heading the police party and is also complainant in the case, stated that there were two secret cavities, first was in the front door towards cleaner side, while second was in the door behind the driver seat. Charas garda was recovered from first cavity and charas Pukhta from the second.
He took five grams from each of the 11 packets, as samples for chemical examinations. As against this P.W.4. had entirely different story to tell. According to him secret cavities were in all the four doors of the vehicle. He categorically denied the suggestion that recoveries were effected from only two cavities. He further created doubts with regard to taking samples from each packet by stating that each of the 11 packets further contained 5/6 slabs each wrapped in white plastic. These contradictions in itself made fatal dent in the case of prosecution, but it sustained a ' further blow when while physically examining the case property including vehicle, the Court observed that 7 packets of charas Pukhta further contained 15/16 sub-slabs wrapped in plastic. This means there were 105/112 slabs. It thus creates serious doubts that 7 samples of 5 grams each were taken from each slab, rather the same is not practically possible. As to secret cavities, learned trial Court observed that there were no secret cavities as such in the doors of the vehicle. It was, however, added that there was enough space in the doors to conceal the contraband. It thus stands established that the entire story of secret cavities was a ruse.
7. There is yet another aspect, relating to recoveries which cannot be ignored. It is the case of prosecution that 7 packets of contained charas Pukhta while charas in remaining 4 packets was in powder form. But this assertion stands falsified by report of FSL (Exh.P.W.2/3) according to which all the 11 samples contained charas in "brown solid" form. The benefit of aforesaid doubts cannot be withheld from appellants.
8. The next question is whether prosecution has been able to prove that appellants were in joint possession and control of vehicle and were in the knowledge of presence of narcotics in the so- called secret cavities. Neither there is any evidence as to the ownership of vehicle nor any driving licence has been recovered to establish a nexus between vehicle and appellants. This lapse on the part of prosecution becomes more pronounced, because in his statement under section 342, Cr.P.C. stance of appellant Sajid Khan is that:-- "I along with my father were coming from Bara side to Peshawar city for purchasing some house hold articles in Bara Bus in the meanwhile, the police officials deboarded us near Bara Gate they took out some genuine notes from pocket of my father with the pretext of fake one which caused us annoyed and exchanged hot words with the police officials they deboarded us and kept us awaiting after some time a motorcar came near the spot and a person along with' two lady deboarded from it they negotiated with the police party and thereafter they were let go. The police party directed us to drove the car to the Police Station upon which reply that none of us knew how to drive the car so that they took us to the Police Station and later on we came to know that we have been implicated in the instant concocted case."
Same is the defence of appellant Fazal Ghani.
9. The above factum of presence of at least two ladies in the vehicle in question is incidentally admitted by P.W.4 in following manner:-- "There were two females also in the vehicle at the relevant time, occupying the rear seat. The said ladies/female were not arrested and were left free from the spot as they were ill. It is incorrect to suggest that the women who were real culprits were let of by the S.H.O. due to the reasons that his hands were greased and the innocent accused facing trial were made scapegoat in order to show his efficiency to his high-ups"
10.The above admission on the part of prosecution witness demolished the case of prosecution, beyond redemption. Moreso, when as indicated above prosecution has failed to prove conscious possession of narcotics by appellants or their control over vehicle from which the recoveries were made. Beside it does not appeal to reason that a job which could be easily performed by one person was undertaken by a father and son, jointly.
11.We are, therefore, of the firm view that case, of the prosecution is replete with contradictions and improvements. The presence of appellants or their having any connection with the vehicle and recoveries is doubtful. The prosecution has thus failed to prove case against appellants, beyond reasonable doubt.
12.Consequently, we accept this appeal, set aside the conviction and sentence of the appellants and acquit them of the instant charge. They shall be set at liberty forthwith if not required in any other case.