' ROOH-UL-AMIN, J.---This Criminal Appeal is directed against the judgment and order dated 20-2- 2010 passed by learned Judge Special Court, Nowshera whereby Ilyas George and Irak Ijaz, appellants, were convicted under section 9(c) Control of Narcotic Substances Act, 1997 and sentenced them to life imprisonment each with fine of Rs, 50,000 each or in default to undergo further six months' S.I. They were also allowed the legal benefit contained under section 382-B, Cr.P.C.
2. The, story as narrated in the F.I.R. Is that on 21-6-2009, Rauf Khan, S.H.O. Police Station Pabbi, during routine gasht at G.T. Road, on spy information regarding transportation of huge quantity of narcotics through Motorcar bearing No, 5939/LEA Mark Cultus VXR white colour, from tribal area to Punjab. On getting information, he along with police contingent led "Nakabandin near Ajab Bagh Bridge. Meanwhile, the mentioned motorcar, on arrival, was stopped for checking purpose. On query, the person sitting on the driving seat disclosed his name as Ilyas George son of George Mikle while the other young man sitting on the ,front seat disclosed his name as Irak Ijaz son of Ijaz Masih both residents of Murree Road, Committee Chowk near Shahjee Darbar, Rawalpindi. On the search of motorcar, 18 packets charas, total 22 Kgs were recovered from the secret cavities beneath the rear seat under the rear number plate. From all the packets, 5/5 grams each were separated for chemical examination through FSL and the: remaining stuff was sealed in a separate parcel. On the spot, during interrogation, the accused disclosed the ' name of third companion, namely, Mohsin Shah alias Shahjee as their partner.
3. After completion of usual investigation, challan was submitted before the trial Court where on 27-10-2009 the appellants were formally charged under section 9(c) C.N.S.A. To which they pleaded not guilty and claimed trial.
4. To substantiate its charge against the appellant, the prosecution produced as many as four witnesses in the witness box. P.W.1 Jehanzeb Khan Sub-Inspector, Police Station Pabbi, who received the murasila, sent by the complainant Muhammad Rauf Khan S.H.O. And incorporated the same into. F.I.R. And registered the case against the accused. P. W.2 Amin Nisar Khan Sub-Inspector Police Station Nizam Pur, who conducted the investigation in the case. P.W.3 Muhammad Zahir is the marginal witness to the recovery memo and P.W.'4 Muhammad Ruaf Khan S.H.O., who effected the recovery from the secret cavities of the vehicle, arrested the accused, separated and sent the sample to the FSL for chemical , analysis, took into the possession the Motorcar bearing No, 5939/LEA along with registration and drafted the murasila. When examined under section 342, Cr.P.C.. The appellants claimed to be innocent and have falsely been implicated by the prosecution in the instant case. They did not choose to appear in their own defence on oath under section 340(2), Cr.P.C. And also produced no defence. At the conclusion of the trial after hearing the learned counsel for the parties, the learned trial Judge convicted and sentenced the appellants through the impugned judgment, as noted above.
5. Learned counsel for the appellants contended that it was the initial duty of prosecution to establish the case against the appellants. The prosecution case is full of dent and contradiction.
The name of Mohsin Shah alias Shahjee mentioned in the recovery memo shows that, being real culprit, he was arrested on the spot and was later on, set free by the complainant with ulterior reasons. According to the recovery memo, total 18 packets have been shown as recovered from the secret cavities of the motorcar but the record is silent regarding the weight of each packet. On weighment of the contraband, the marginal witness of recovery memo and the complainant have contradicted each other. The vehicle, recovered on the 'spot, has neither been produced nor exhibited in the Court, during trial. The samples have been sent to the FSL for chemical analysis with a delay of nine days, as the occurrence took place on 21-6-2009, while the samples were received in the laboratory on 30-6-2009. She further argued that the prosecution has failed to establish any link between Ilyas George and Irak Ijaz, except, both was arrested from one and the same motorcar. Appellant Irak Ijaz merely sitting in the front seat of the vehicle cannot be saddled for having knowledge of contraband lying in the secret cavities of the vehicle, particularly, in the circumstances, when neither he is owner of the vehicle nor the vehicle was under his control. She argued that the appellants are innocent and have falsely been implicated by the prosecution in the instant case, deserves acquittal.
6. The learned State counsel, in rebuttal, supported the judgment of the learned trial Court and argued that huge quantity of charas has been recovered from the secret cavities of the motorcar which was under the direct control of appellant Ilyas George. The appellant Irak Ijaz was also arrested on the spot sitting in the front seat of the vehicle. Both' the accused appellants belonged to Rawalpindi and were going back to their destination in one and. The same vehicle, therefore, it is sufficient to hold that co-accused Irak Ijaz (appellant) was also in conscious knowledge of the existence of charas in the secret cavities of the motorcar. The appellants have failed to allege any animosity or with the police party. The only plea taken by the appellants in their statement recorded under section 342, Cr.P.C. Before the trial Court is that one Mohsin Shah from Rawalpindi was arrested by the local police and he brought the accused-appellants for the purpose of recovery of some debt outstanding against the appellants. Mohsin Shah let of himself arranged the matter with the S.H.O: and booked the appellants falsely in the instant case. He argued that the appellants have been arrested on the spot. The prosecution has able to prove the case against the appellants without any shadow of doubt and the trial Court has rightly convicted and sentenced the appellants.
7. Having heard the learned counsel, for the appellants as well as the learned State Counsel and perusal of the record with their able assistance, we find that the vehicle which was being driven by Ilyas George was intercepted by P.W.4 Muhammad Rauf Khan S. H.O. On search of the vehicle, huge quantity of narcotic has been recovered from the secret cavities, specially designed for the purpose. He appeared before the trial Court in support of the prosecution case and narrated the story fully corroborating the F.I.R. And recovery memo. The presence of the appellants in the vehicle has been established by the prosecution by producing convincing evidence. This witness was subjected to lengthy cross-examination but nothing was squeezed from his mouth to shatter the prosecution case. The contradiction, as alleged by the learned counsel for the appellants in the statement of P.W.4 and P.W.3 qua the weighment of the contraband are not insignificant and not fatal in nature to the prosecution case. In support of the recovery of charas from the secret cavities of the motorcar, the prosecution produced Muhammad Zahir as recovery witness, who unequivocally supported and corroborated the recovery from the secret cavities of the motorcar.
He also affirmed the arrest of the appellants on the spot. He was also subjected to lengthy cross- examination but nothing was extracted from him in the benefit of the appellants.
8. The record also reveals that huge quantity of 22 Kgs charas has been recovered from the secret cavities of the vehicle which was directly under the control of appellant Ilyas George. The plea and reason for false implication advanced by the appellants during the trial, is not appealable to a prudent mind that on the cast of other without any direct animosity, ill will and grudge of the police officials with the appellants, such a huge quantity would be foisted against an innocent person.
The I.O. Amin Nisar Khan, who conducted investigation in the case, fully supported and corroborated the ' murasila and recovery memo. The positive FSL report has left no doubt in proving the guilt of appellants.
9. From the perusal and scrutiny of the evidence and material available on record, we do not find any material discrepancies or contradictions in the testimony of prosecution witnesses in, regard to the recovery of 22 Kgs charas from the vehicle which was being driven by appellant Ilyas George.
10. The contention of the learned counsel for the appellants that the samples separated from the sealed charas were sent to the Forensic Science Laboratory after nine days of the recovery is without any substance. Rules 4 and 5 of Control of Narcotic Substances (Government Analysts)
Rules, 2001, whereby sample dispatched for analysis, had placed no bar on the Investigating Officer to send samples beyond seventy two hours of seizure. Rules, supra, are otherwise, directory in nature and not mandatory. The same could not control substantive provision of Control of Narcotic Substances Act, 1997. The delay in sending of samples to Forensic Science Laboratory for chemical examination could not be treated fatal in absence of objection regarding .Same having been tampered with or manipulated.
11. From micro scoping examination of the prosecution case and evidence available on record, we could not find any link between Ilyas George and Irak Ijaz. The vehicle which was being driven by the appellant Ilyas George' was intercepted by P.W.4 whereform recovery of 22 Kgs charais was effected. The appellant Irak Ijaz has only been shown sitting on the, front seat of the vehicle. Neither any driving licence has been recovered from his possession nor has the prosecution brought any evidence on record to the effect that he, either facilitated or helped in any manner or was instrumental in the commission of offence. The law on the subject is quite settled that mere presence of a person in a vehicle cannot be treated as sufficient to saddle him with the responsibility of possession of narcotic substance recovered from the vehicle unless prosecution established through independent evidence that such a person was aware of availability of the narcotic substance in the secret cavities of the vehicle. The word "possess" used in section 6 of the Control of Narcotic Substances Act, 1997, connotes some sort of knowledge about think possess.
The prosecution must establish, initially that the accused knowingly in control of something, in the circumstances, which showed that he was assenting to being in control of the same. In the instant case, an iota of evidence is not available to show the knowledge of the co-appellant Irak Ijaz regarding existence of narcotic in the secret cavities of motorcar.
' From search of record of the case from cover to cover, we could not find any relationship between driver and the co-appellant Irak Ijaz. In the circumstances, we have left with no option but to extend the benefit of doubt to appellant Irak Ijaz. Thus, we hold that the prosecution had failed to prove that Irak Ijaz was in knowledge of the existence of narcotic in the secret cavities of the vehicle.
12. For what has been discussed above, we partially accept this Criminal Appeal, set aside the conviction and sentence of appellant Irak Ijaz recorded by the learned trial Court vide impugned judgment dated 20-2-2010 whereas the conviction and sentence of appellant Ilyas George is maintained, being based on proper appraisal of evidence. Appellant Irak Ijaz is acquitted of the charges levelled against him. He be set free forthwith if not required in any other case.