' MIAN FASIHUL MULK, J.---This Criminal Appeal is directed against the judgment dated 1-6-2011 of the learned Judge, Special Court (CNS), Peshawar whereby appellant, Khursheed Khan, was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to rigorous imprisonment for life with payment of fine of Rs,50,000 or in default thereof to suffer 1 year simple imprisonment. However, benefit under section 382-B, Cr.P.C. Was extended to the appellant.
2. Brief facts of the case are that complainant, Mushtaq Ahmad, Inspector ANF, during the course of routine checking at. GT road near Tarnab Farm, was informed by an informer that an attempt to smuggle huge quantity of narcotics would be made by one Khurshid Khan from Akora Khattak to Peshawar through Motorcar No,FDY-8767. Accordingly, he along with other ANF staff held a nakabbandi and when the car in question came from Nowshera side to Peshawar, it was stopped.
Appellant was sitting on the rear seat having a `gathri' on the seat while the driver disclosed his name as Hamidullah. The search of `gathri' 'led to the recovery of 19 packets of charas pukhta' of different quantities, total weighing 22.550 kgs. He separated 10/10 grams from each packet, prepared samples for chemical analysis and sealed the remaining charas into separate parcel.
The driver disclosed to him that he has nothing to do with the narcotics, as it was the appellant, who hired his taxi from Akora Khattak to Peshawar for a fare of Rs,900. He arrested the appellant, drafted the murasila and sent to the Police Station for registration of the case, where No,67 dated 28-12-2010 under section 9(c) of the Control of Narcotic Substances Act, 1997 was registered against the appellant.
3. On completion of investigation, complete challan was put in Court for trial of appellant, where the prosecution in order to prove the charge and substantiate the allegations levelled against appellant produced four (4) witnesses, out of whom Muhammad ljaz (P.W.1) had taken the samples to FSL Rawalpindi; Muhammad Ayub, Muharrir had incorporated the contents of murasila into F.I.R.; Mushtaq Ahmad; S.I (P.W.3) had conducted the search, seized the narcotics, arrested the appellant and conducted other necessary investigation in the case; whereas P.W.4 Fazle Amin was member of the checking staff, in whose presence the I.O. Recovered the charas in question from the motorcar and he witnessed the recovery memo as a marginal witness.
4. On the conclusion of prosecution evidence, the appellant was examined under section 342, Cr.P.C., who denied the charge and pleaded innocence. He, while replying question No,8, stated that he has money dispute with one. Habibur Rehman; he was demanding the said amount from him, who provided him documents of ten marla plot with a guarantee and told him that he was involved in a narcotic case at Rawalpindi in which he was taken by ANF Peshawar and the amount was taken by them for his release, however, he has some amount in Peshawar; on the relevant day, he came to Nowshera to meet one Haseeb where Habibur Rehman called him that he along with Harnidullah are going to Peshawar for offering of Fateha as well as they will try to arrange outstanding amount for him; he seated with him from Nowshera and near Noor Masjid CNG Petrol Pump, the vehicle was stopped for the purpose of prayers where already some officials were present and he along with Hamidullah, Habibur Rehman was arrested; subsequently he came to know that at the conspiracy of Habibullah, he was implicated in the present case because the ANF officials were demanding case from him for his release in the above mentioned narcotics case.
Later on they were released, from the P.S while he was implicated in the present case.
5. The appellant did not opt to record his statement on oath but wished to produce Hamidullah, driver of the motorcar in his defence. The statement of Hamidullah was recorded as D.W.1 on oath.
His examination-in-chief is hereby reproduced as under:-- "I am taxi driver by profession. I was standing on taxi stand of Akora Khattak when two persons came to me and talked about hiring of my taxi from Akora Khattak to Peshawar and as a result they hired my taxi to Peshawar on fare of Rs,1,300. One of them sat on the front seat while the other occupied the rear seat of my taxi. They, told me that their 3rd companion is at Nowshera who would also be seated from that place. At Nowshera Chowk the said person was standing. We boarded him in the taxi on the front seat while the person sitting on the front seat shifted to the rear seat. From. Nowshera we reached to Taroo Jaba and halted at CNG Station for offering prayers. When we were standing on the CNG Station police personnel came there in their official vehicle. They put me and the accused facing trial in one vehicle while the other two persons of our taxi were put in the other vehicle. Firstly, we were brought to police post at Peshawar and then shifted to PS near Karkhano market. My personal belongings along with documents of motorcar were taken into possession in the PS along with Rs,400. My thumb-impression was obtained on a paper in PS. I spent night there and on the next morning I was produced before the Court. My thumb-impression was obtained on the promise that 1 would be got free after doing so. It was brought to the Court next day where I did nothing. I did not record any statement. 1 was taken to the PS back where I was let free at evening time. My motorcar, was also handed over to me. Police came to niy house subsequently and left a chit for attendance before the Court. I was not present at home. Subsequently, I came to the Court. The chit which was left at my home I produced today in the Court which is Exh.D.W.I/1".
6. The learned trial Court, after hearing the parties and appraising the evidence, convicted and sentenced the appellant as stated above.
7. We have heard learned counsel for the appellant as well as the State and have gone through the record.
8. Learned counsel for the appellant vehemently argued that neither any recovery was made from his personal possession nor the vehicle in question belonged to him nor he had any relation with the driver, whose mere presence in the vehicle was only for the reason as stated in his statement under section 342, Cr.P.C. According to him, appellant became prey to the ill design of said Habirur Rehman, against whom a narcotic case was pending and with whom the ANF staff had joined their hands.
9. The learned State counsel strongly opposed the above arguments and contended that the prosecution has fully proved guilt of the appellant beyond any shadow of doubt and the sentences awarded to him are in accordance with law.
10. Perusal of the statements of P.W.3 and P.W.4 would reveal that both of them have admitted that no recovery was made from personal possession of the appellant. Interesting aspect of this case is that the I.O. Let free the driver along with vehicle after arrest of the appellant. At the same time, there is no evidence on record that appellant was either owner of the vehicle or the narcotics were recovered from his personal possession. On the other hand, from the personal belongings of appellant, which have been duly exhibited on record by the defence, it becomes clear that appellant was having some money dealing with said Habibur Rehman, who was involved in a narcotics case. The driver of vehicle namely Hamidullah was abandoned by the prosecution being not traceable but from the chit produced by him and exhibited on record as D.W.1/1, it is clear that he was duly present in his house. It is also on record that the defence had filed an application for summoning said Hamidullah under section 540, Cr.P.C. As a Court witness but the said application was declined; hence he was produced in defence, who in his statement negated the prosecution story and supported the stance of appellant.
11. There are now two versions of the case; one of the prosecution and other of the appellant. Well- settled principle of law is that wherever there are two versions and the version set up by the defence is probable, the Court would invariably incline to follow the defence version. The august Supreme Court of Pakistan has held in the case of Qaisarullah and others v. The State (2009 SCM R 579) that:-- "Car from which "Charas" was recovered was being driven by co-accused and not by the accused-Prosecution had failed to connect accused with the ownership of the car as well as to prove through convincing evidence that accused had exclusive knowledge of the concealment of narcotics in the car. From the very first day the defence plea of accused was that he was an employee of Pakistan Air Force and he was given lift by the driver of the car, which was admitted and found correct by the Investigating Officer. No link between the accused and driver of the car had been established on the record first version of the accused recorded immediately after his apprehension was to be given weight, which was supported by the circumstances of the case- Accused was acquitted on benefit of ' doubt in circumstances."
Equally, there is no evidence that appellant was previously involved or convicted in similar nature cases and his mere presence in the car at relevant time would not be sufficient to condemn him for the alleged crime, therefore, the prosecution, in the circumstances, has failed to connect him with the commission of crime.
12. In this case, principal witness for the prosecutionwasi driver of the motorcar to have testified against the appellant's E indictment but he was not produced at trial without any convincing reason, which in the facts .And circumstances of this case can be taken adverse to the prosecution. On the other hand, when the driver of vehicle was produced by the defence he shattered the prosecution story in his statement.
13. Accordingly, this appeal is accepted. The impugned judgment of the trial Court is set aside and appellant is acquitted G of the charge. He shall be released from jail forthwith if not required in any other case.