' AZMATULLAH MALIK, J.---Through this single judgment we intend to dispose of Criminal Appeal No,642 of 2009 titled "Bakht Gul v. State, Criminal Appeal No,22 of 2010 titled "Bashir v. State", Criminal Appeal No, 51 of 2010 titled "Sajjad v. State", Criminal Appeal No,502 of 2010 titled Mst. Nazia v. State and Jail Criminal Appeal No,769 of 2010 titled Mst. Tauheeda v. State as all arising out of case F.I.R. No,491 dated 8-7-2008 registered under section 9C, C.N.S.A. Read with S. 13, A.O. At Police Station Pahari Pura, Peshawar.
2. Impugned herein is the judgment and order dated 12-12-2009 passed by Additional Session Judge-V/Judge Special Court, Peshawar in case F.I.R. No,491 dated 8-7-2008 by which the appellants were convicted and sentenced under section 9C, C.N.S.A for life imprisonment R.I. With a fine of Rs,1,00,000 or in default to further suffer 6 months' S.I. The appellants were also convicted and sentenced under section 13, A.O. For 3-years' R.I. With fine of Rs,5,000 or in default to further suffer 3-months' S.I. The sentences of the appellants were ordered to be run concurrently, benefit of section 382-B, Cr.P.C. Was also extended.
3. Precise facts of the prosecution case are that Riazul-Islam SHO along with other Police officials were on routine Gasht when received information that huge quantity of narcotics will be smuggled from Dalazak Road towards Punjab in motorcar Alto bearing Registration No,LZC-2114. On this he arranged Nakabandi. At about 4:10 hours motorcar was seen coming from Yousaf Abad Dalazak Road which was proceedings towards the Ring Road. The same was signalled to stop but the driver of the car accelerated the speed of the car to run away but was overpowered. On checking 5 persons were found seated including 2 females. The SHO deboarded all the 5 persons including the females and conducted their body search, however, nothing incriminating was recovered from their personal search. He then searched the motor car and during this from the diggi of the car contrabands/charas, opium and arms/ammunitions consisting pistols and live rounds, 25 packets charas each by one kilogram garda total 25 kilograms, wrapped in black color plastic, which was charas garda, 8 packets wrapped in flowery plastic each by 1200/1200 grams -total 9600 grams of charas garda, 5 packets golden colour packets having the words Lahore Esa Khan, each packet by 1200/1200 total 6000 grams charas garda, 10 packets pukhta charas warped in yellow packet each packet 1150/1150 grams total 11500 grams, 10-packets charas garda having the words Sargoda over the packet written each packet 1/1 kilograms total 10 kgs., 12 packets out of which on fine packets Wali Shah Lahore was written, on two packets Hazard Lahore was written while five packets were without any endorsement each packet was 1200/1200 grams total 14400 grams, in all the charas garda/pukhta became 70 packets weighing 76 kilograms and 500 grams. Likewise, 4 packets of opium wrapped in yellow solution tape each packet of opium wrapped in yellow solution tape each 1500/1500 grams total 6 kilograms and pistol of .30 bore without number along with 25 live rounds of the same bore were recovered. All the recovery was taken into possession by him vide recovery memo Exh.PC in the presence of marginal witnesses namely Muhammad Javed and Fazal Rehman. He then separated 5/5 grams from all the packets referred above and the charas/opium for chemical analysis and sealed the same into parcel No,1 to 70 while the remaining quantity of charas garda and pukhta were sealed in parcel/bag Nos.1 to 72. Likewise, he also separated 5/5 grams from the opium for FSL analysis and sealed into Parcel Nos.73 to 76 while remaining quantity was sealed into Parcel No,77. Similarly, the pistol alongwith cartridges were sealed in Parcel No,78.
The Motorcar bearing No,LZC -2114 without documents was also taken into possession vide the same recovery memo. He arrested the accused, who disclosed their names as Bakht Gul, Bashir, Sajjad, Mst. Tauheeda and Mst. Nazia. He then drafted the murasila and send the same to Police Station for registration of case through Mukhtiar Shah No,4493 upon which the present case was registered.
4. After completion of usual investigation Police submitted the challan against the present appellants in the trial Court where charge against them was framed under section 9C, C.N.S.A.
Read with 13, A.O.
5. Prosecution in support of its case examined P.W.1 Jehanzeb Inspector of Police Station Pahari Pura who on receipt of Murasila recorded the F.I.R. Exh.P.A, P.W.2 Riaz-ul-Islam SHO, Police Station Yakatoot, who prepared the recovery memo Exh.PC, recorded the Murasila Ex. PA/1 and send the same for registration of the case. P.W.3 Fazal-e-Rehman No,401 who is the marginal witness of the recovery memo Exh.PC. P.W.4 is the Taj Mir Khan, C.I.O who investigated the case who vide application Exh.PK dispatched the samples of the contrabands i,e, opium to the FSL and also received the report of the FSL Exh.PK/1 which was tested positive. He also initiated the proceedings against absconding accused Qari and obtained warrant under section 204, Cr.P.C. Vide application Exh.P.W.4/3 as well as under section 87, Cr.P.C. Vide Exh.P.W.4/4 he also submitted the complete challan Exh.P.W.4/5, whereafter the prosecution closed its evidence.
6. The statements of appellants under section 342, Cr.P.C. Was recorded under which they denied the allegations of the prosecution, but neither examined themselves on Oath under section 340(2), Cr.P.C. Nor produced any evidence in their defence. The learned trial Court relying on the evidence produced by the prosecution convicted and sentenced the appellants vide the impugned judgment.
7. Learned counsel for the appellants mainly contended that although the huge quantity of contrabands and arms/ammunitions were shown to have been recovered from the digit of the vehicle in question which was being driven by the appellant namely Bakht Gul, but, prosecution has failed to establish the conscious possession of the said contrabands with the appellant. He further argued that the appellant Bakht Gul was only a driver of a taxi and is not owner and thus has no control over the things lying in the diggi of the vehicle. He also contended that had the appellant been in knowledge of the contrabands or he intends to transport the same then he would have concealed the same in the secret cavities of the vehicle. He lastly contended that the contrabands might be of passenger who hired his services for proceeding to Rawalpindi from Peshawar.
8. Learned counsel on behalf of other appellants argued that the appellants were only passengers who had no relation whatsoever with the driver of the taxi and had no knowledge of anything kept in the diggi of the vehicle. They also contended that nothing incriminating was recovered from the possession or at their pointation from the vehicle. He lastly contended that the learned trial Court has wrongly convicted the appellant other than Bakht Gul in the present case who had no nexuses with the alleged recovery.
9. Conversely, it has been argued by the learned Advocate-General that a huge quantity of narcotics were recovered from the diggi of the car which was occupied by all the appellants, therefore driver of the car and all the passengers sitting are jointly responsible for the recovery made from the diggi of the car. All the P.Ws. Were consistent in their deposition and the learned trial Court has rightly convicted the appellants for the offence under section 9C, C.N.S.A. And under section 13, A.O.
10. We have gone through the record of the case and have also heard the counsel for the parties.
11. The foremost question arises as to whether all the appellants can be held in joint possession of the property recovered from the diggi of the vehicle. In this connection sections 6 and 29 of the Act are material. Section 6 of the Act provides that possession of narcotics drugs is the offence which is punishable under section 9 of the Act. Section 6 reads as under:-- "(6) Prohibition of possession of narcotic drugs etc, ---No one shall produce, manufacture, extract, prepare, possess, offer for sale purchase, distribute, deliver on any terms whatsoever transport dispatch, any narcotic drugs psychotropic substance or controlled substance except for medical, scientific or industrial purchase in the manner and subject to the such conditions as may be specified by or under this Act or any other law for the,. Time being in force."
12. The next consideration is as to how far the prosecution proved the possession of narcotics substances by the appellant.
13. It is pointed out that in most of the cases it will be very difficult for the prosecution to prove that the accused was knowingly in possession of narcotic drugs; therefore, the Legislature has enacted a provision in the shape of section 29 in the Act to shift the burden upon the accused to disprove the possession once the prosecution proves that the accused was in possession of narcotic drug.
Thus, the prosecution first has to discharge the duties of proving the allegation, once it is proved then the accused is presumed to be guilty of the offence unless he disproves the allegation and charge. The said section read as under:-- (29). Presumption from possession of illicit articles. ---In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of --
(a) any narcotic drug, psychotropic substance or controlled substance;
(b) any cannabis, coca or opium poppy plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the. Production or manufacture of narcotic drug, psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance or controlled substance has been produced or manufactured, for the possession of which he fails to account satisfactorily.
14. As regards driver of the vehicle, it is important to note that when he is driving the vehicle, he is Incharge of the same, therefore, it would be under his control and possession. Hence, whatever articles lying in it would be under his control and possession. The liability of the driver, in view of provisions of section 27 of P.P.C, has been considered by apex Court in the case of Sherzada v.
State 1993 SCMR 149, wherein it was observed as under:-- The next point raised by the learned counsel was that it is provided in section 27, P.P. C. That when property is in the possession of wife, clerk or servant on account of that person, it is in that person's possession within the meaning of this Code. The learned counsel argued that the appellant was a driver, A hence an employee of the owner of the car and even if he is admitted to be in possession of the contraband article on behalf of the owner, he cannot be said to be liable for that possession. But this argument of the learned counsel is without force on the face of it because section 27, P. P. C. Is confined to the Pakistan Penal Code only, as the words "within the mean of this Code" appearing in that section clearly indicate. This section has not been made applicable to the Prohibition (Enforcement of Hadd) Order, 1979 as is evident from Article 26 of that Order where certain other provisions of the P. P. C. Have been made applicable".
15. n another case titled Nadir Khan v. State 1988 SCMR 1899 the Apex Court has observed that knowledge and awareness would be attributed to the Incharge of the vehicle. The relevant portion reads as under:-- "We have gone through the evidence on record and find that the petitioners had the charge of vehicle for a long journey starting from Peshawar and terminating at Karachi. They had the driving licence also. As being person Incharge of the vehicle for such a long journey, they must be saddled with the necessary knowledge with regard to the vehicle and its contents".
16. Keeping in view the above principles of law and observation of Apex Court, the appellant Bakht Gul who is driver, therefore, he is in possession of the vehicle and also in possession of the articles whatever lying in it. Unless rebuttal of the case in hand no evidence in rebuttal has been produced.
17. As regards the remaining appellants, namely Bashir, Sajjad, Mst. Nazia and Mst. Tauheeda. The allegation against them is that they were sitting in the vehicle as passengers; therefore, their case is distinguishable from the case of the appellant Bakht Gul. Hence in such type of cases the prosecution is required to produce evidence to show that the said persons were in joint possession and control of the vehicle or that they had any concern or dealt with property in any manner, particularly, in the case when the narcotics substance is kept in the diggi or hidden from all other persons. If there is no evidence led by the prosecution to indicate that such persons knew that Charas or narcotics substance was concealed in diggi or had knowledge of the said place so as to attract the provisions of Article 122 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as the Order). Nevertheless, if the property was lying open within the view of said persons or they knew to placement of property then the situation would have been quite different. In such a situation, they are required to explain their position in terms of Article 122 of the Order, without such explanation their involvement in the case would have been proved. The prosecution has failed to prove the knowledge on the part of appellant other than driver. Moreover the property/contraband was not within their view and they also had no knowledge of the placement of the property therefore they cannot be held responsible of the joint possession of the property with the driver.
18. In the present case to the extent of the appellants Bashir, Sajjad, Mst. Nazia and Mst. Tauheeda, the above-mentioned facts have not been proved through any evidence either oral or documentary, therefore, they are not required to explain anything. The prosecution has simply proved their presence in the vehicle. Thus mere presence of the appellants in the vehicle would not involve them in the case unless conspiracy or abatement of the offence is shown and proved. Therefore, the prosecution has failed to prove the case against the appellants. In the case of Qaisarullah v. State "2009 SCM R 579", a similar question has been examined and it has been observed as under:-- "The prosecution failed to prove through convincing evidence that Abdul Wali had exclusive knowledge of the concealment of narcotics in the car which neither belonged nor was being driven by him".
20. Consequently Appeal No,642 of 2009 of Bakht Gul is hereby dismissed being without force.
However as the prosecution has failed to establish the charge against appellants Bashir, Sajjad, Mst Nazia and Mst. Tauheeda beyond any shadow of doubt, therefore, Appeals Nos.22, 51, 502 and 769 of 2010 are allowed. The conviction recorded against them vide the impugned judgment is hereby set aside. They be released forthwith if not required in any other case.