Mrs. Irshad Qaiser, J.--The story as it goes in the FIR is that Fazal Amin Khan, Additional SHO along with Police officials seized a Suzuki Car bearing registration No JV-834/Islamabad parked at Inqilab Road near Dando Pull. Two persons were found present in side the car, one who was sitting on the rear seat disclosed his name Iftikhar Khan and the other who was sitting on the rear seat disclosed his name Inzar. The former also told that the driver has gone to bring patrol for the motorcar. The search of the car was led to the recovery of 73 packets of chars (pukhta) weighing 73 KGs, hidden in the secret cavities of the car made underneath the three seats. A case under Section 9-C CNSA was registered against the appellant, vide FIR No 204 dated 16.3.2011 in Police Station Chamkani Peshawar, while the co-accused, Iftikhar Khan, made good his escape from the Policy custody.
2. After the arrest of the appellant and completion of the investigation, he was sent to the Court of the learned Judge, Special Court for trial who on its conclusion convicted and sentenced him to imprisonment for life with a fine of Rs, 25000/- or in default to undergo six months S.I. under Section 9(c) CNSA with the benefit of Section 382B, Cr.P.C., vide judgment dated 22.9.2011 hence this Criminal Appeal.
3. Learned counsel appearing on behalf of the appellant contended that the very story that the appellant was found in possession of 73 KGs of chars pukhta in the circumstances of the case appears to be unnatural and unbelievable on the face of it. He next contended that when the appellant being passenger hired the taxi for taking his wife to the Hospital and the recovery has not been made from his personal possession, the Prosecution case cannot be said to have been based on proper appreciation of evidence. The learned counsel while elaborating his arguments contended that when the appellant being passenger just taking his wife to the Hospital for treatment, he could not be saddled with conscious knowledge of the incriminating substance, thus, recovered. The appellant, learned counsel added, appears to have been made a scapegoat as there was absolutely no occasion for him to carry the contraband substance when he was accompanied with his ailing wife. The inference, the learned counsel argued, can thus be drawn that the incriminating substance was belonging either to the driver who was not present at the relevant time or to the co-accused who made his escape good from the Policy custody. The learned counsel while concluding his arguments contended that the contradictory statements of the PWs on material particulars is another factor to militate against the veracity of the Prosecution version and that the evidence bristling with loopholes is not worthy of reliance.
4. As against that, the learned counsel appearing on behalf of the State argued that the charge against the appellant stands proved, as all the witnesses examined in the Court are in agreement with each other as far as the fact of recovery goes, especially when there is nothing on the record to show that any of the P.Ws. has any motive to falsely implicate the appellant.
5. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
6. The recovery of incriminating substance from the motorcar is not disputed. Similarly at the time of recovery of narcotics the absence of driver, the presence of co-accused on front seat, the appellant at rear seat, their arrest and the escape of the co-accused from the Police custody is also not disputed. The question arises whether the appellant could be saddled with conscious knowledge and joint possession of the incriminating substance recovered from the secret cavities of the vehicle. In this connection Section 6 and Section 29 of the CNSA, 1997 are material. Section 6 provides that possession of narcotics etc is an offence which is punishable under Section 9 of the Act while Section 29 deals with presumption that the accused has committed the offence under the Act.
7. The main question for determination is as to how far the Prosecution proved the possession of narcotics substance by the accused. Section 29 of the Act expressly cast a duty upon the Court to presume in a trial under this Act that the accused has committed the offence unless contrary is proved. If the case is of possession of narcotics drugs, then first the Prosecution has to establish the fact that the narcotics were secured from the possession of the accused, the Court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such narcotics. Therefore, it is necessary for the Prosecution to establish that the accused has some direct relationship with the narcotics drugs or has otherwise dealt with it. If the Prosecution proves the concealment of the articles or physical custody of it, then the burden of proving that the accused was not knowingly in possession of .the articles is upon him. Knowledge is the essential ingredient of the offence. The august Supreme Court of Pakistan in case Nadir Khan Vs. The State (1988 SCM R 1899) has held that knowledge and awareness would be attributed to the Incharge of the vehicle. It is admitted fact that the appellant was not, the driver of the vehicle. The only allegation against him is that he was sitting in the rear seat of the vehicle, therefore, his case is distinguishable from the case of the driver and the absconding co-accused who managed to escape himself from the clutches of the Police. Hence in such situation the Prosecution is required to produce evidence to prima facie prove that the said person was in joint possession and the vehicle was in his control or that he had any concern or dealt with the property in any manner, particularly in the case when the narcotics substance is concealed in secret cavities of the car. It is settled law that if there is no evidence that such person knew that chars was concealed in secret cavities or had knowledge of the said place so as to attract the provision of Article 122 of Qanun-e- Shahadat Order, 1984. Nevertheless, if the property was lying open within his view or he knew the placement of property, the situation will be quite different. A look at the relevant record reveals that the appellant at the very outset stated that he being a passenger hired this taxi for taking his wife to the Hospital. He also produced medical prescription Ex.D3 to prove the illness of his wife. Though P.Ws. denied the suggestion that the car in question was a taxi motorcar but they admitted it correct that the Alto Motorcar usually use as commercial vehicle. Seizing Officer and marginal witness when appeared as P.Ws.5 and 6 admitted the driver of the vehicle was not present in the vehicle at the relevant time, co-accused Iftikhar told me that driver of the vehicle fetch the petrol for the vehicle'. PW-5 also admitted when I approached the vehicle and made query from the co- accused Iftikhar, the present accused did not try to escaple from the vehicle. The contraband was not visible in motorcar. He also admitted "I had not collected any evidence on record regarding the connection of accused facing trial with the driver or other co-accused." In such a situation it can be inferred that the contraband substance either belonged to the co-accused who fled away from the Police custody or the driver who was not present at the relevant time. No efforts were made by the Prosecution to get the clue of the driver. It is also a great mark of interrogation that how and why the handcuffed co-accused Iftikhar escaped from the clutches of Police who were equipped with fire-arms. No intensive efforts were shown to have been made for his arrest. There is nothing on the record in black and white as could point to the complicity of the appellant in the crime and at the same time nothing was brought by the Prosecution to show that the appellant was in conscious knowledge of the incriminating substance recovered from the secret cavities of the vehicle. No doubt the appellant was found in side the car but we could not come across even a speck of evidence as could point to his conscious knowledge of the incriminating substance. In the judgment rendered in the case of Mst. Jameela and another Vs. The State (PLD 2012 Supreme Court 369), the Hon'ble Judges of the Supreme Court while dealing with similar situation observed that mere presence of a passenger in a vehicle cannot be treated as sufficient to saddle him with the responsibility of possession of narcotic substance recovered from the vehicle unless the Prosecution-establishes through independent evidence that such passenger was conscious and aware of availability of narcotic substance in the vehicle. Even otherwise, once the Court entertains doubt as to the genuineness of the recovery, it would be rather dangerous to maintain conviction and sentence awarded to the appellant on its basis. Needless to say, even a single doubt, if found reasonable, is sufficient to warrant the acquittal of the accused. Reference in this respect is also made to judgment rendered in the case of Shahzada Vs. The State (2010 SCM R 841) wherein it is held that: "Accused were simply sitting in the car--No evidence was led by the Prosecution to show that the accused had knowledge of the narcotics lying in the car or they had abetted or conspired with the driver in the commission of the crime--Property in question was neither lying open in the car within the view of the accused, nor they knew about the placement of the same therein--Accused, therefore, was not even required to explain their position as required under Art. 122 of Qanun-e- Shahadat, 1984, and they could not be held responsible and in joint possession of the narcotics with the Driver--Prosecution case against the accused was highly doubtful and they were acquitted accordingly?
We, therefore, do not feel inclined to maintain the conviction and sentence recorded by the learned trial Court. We, therefore, by extending the benefit of doubt to the appellant, allow this appeal, set aside the convictions and sentences recorded by the learned trial Court and acquit him of the charge. He be set free forthwith, if not required in any other case. This is the detailed judgment which furnishes basis to our short order of even date.