' JAMAL KHAN MANDOKHAIL, J.--The appellants Muhammad Ibrahim and Moula Bakhsh, were convicted and sentenced by the trial Court under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter called as "The Act"). They preferred this appeal, which was heard by a Division Bench of this Court, comprising of the Hon'ble Justice Syeda Tahira Safdar and Hon'ble Justice Muhammad Hashim Khan Kakar. They agreed to maintain the conviction and sentence awarded by the trial Court to the appellant (Muhammad Ibrahim), whereas there is a difference of opinion between them about the conviction and sentence awarded to the appellant (Moula Bakhsh). The Hon'ble Justice Muhammad Hashim Khan Kakar acquitted him, whereas the Hon'ble Justice Syeda Tahira Safdar maintained the conviction. The matter was referred to the Hon'ble Chief Justice, who assigned the same to me for a decision as a Referee Judge.
2. The facts of the case have already been discussed in the judgment by the Hon'ble Division Bench, therefore, there is no need to discuss it in detail. However, the precise facts are that on 10th March, 2010, a tanker (truck) was intercepted by the custom's officials. The convict/ appellant (Muhammad Ibrahim) was driving it, whereas the appellant (Moula Bakhsh) was sitting beside him. On a search, secret cavities were found in the truck in which, Hashish was concealed. A case under section 9(c) of the Act was registered against the appellants.
3. I have heard the learned counsel for the parties, perused the record and the judgments of both the Hon'ble Judges. Before discussing about the role of the appellant (Moula Bakhsh) in the commission of the offence, it would be appropriate, to reproduce section 6 of the Act as under:-- "6. Prohibition of possession of narcotic drugs etc. No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, dispatch, any narcotic drug, psychotropic substance or controlled substance, except for medical, scientific or industrial purposes in the manner and subject to such conditions as may be specified by or under this Act or any other law for the time being in force."
4. No doubt, this is a special law wherein, a burden to prove innocence is always upon an accused, but this does not absolve the prosecution from its primary duty of proving a case against an accused beyond any reasonable doubt. The prosecution must prove a violation of the above law by one (01) or more than one (01) person. If the slightest connection of a person/s is established, with regard to produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, dispatch, any narcotic drug, psychotropic substance or controlled substance, except for medical, scientific or industrial purposes, under such circumstances, a person allegedly involved in the crime must prove his innocence. Moreover, every criminal case has its own facts and circumstances, and the same should be dealt with independently, in accordance with law. The cases falling under the Act requires due consideration and should be decided consciously, keeping in view the fact that a minimum punishment provided for section 9(c) of the Act, is life, in case the contraband material exceeding ten (10) kilograms. To inflict a capital punishment of death or that of life, the prosecution is under statutory obligations to furnish the first degree of proof through high quality evidence, reasonably creating nexus of an accused with the commission of the crime. Reliance has been placed on cases of:
(i) Mst. Jameela v. The State, reported in (PLD 2012 SC 369).
(ii) Qaisarullah v. The State, reported in (2009 SCM R 579 SC).
(iii) Nazar Hussain v. The State, reported in (2007 YLR 1601 Karachi).
(iv) Eran Gul and others v. The State, reported in (2009 YLR 646).
(v) Yar Muhammad v. The State, reported in (2010 YLR 1939).
5. In the present case, it was alleged that the tanker was driven by, the convict/ appellant (Muhammad Ibrahim), whereas the appellant (Moula Bakhsh) was sitting with him. On the search, there were secret cavities in the vehicle, wherefrom the contraband material was recovered.
Considering the facts of the case, at the relevant time, the tanker was in the control of the driver, therefore, there is no possibility that he would have no knowledge about the recovered article concealed in the secret cavities. Since, the tanker was on its way, as such, it can safely be held that the narcotics were concealed by the driver for the purpose of its transportation or; delivery. As far as, the role of the appellant (Moula Bakhsh) is concerned, it is for the prosecution to show that he was either the owner, cleaner, helper of the tanker, or he knew about the secret cavities or concealment of the contraband material therein, or the prosecution has to prove that the appellant had hands in the affairs. Admittedly, the tanker was not in the control of the appellant, nor he is its owner or cleaner. The prosecution has failed to prove his knowledge about the establishment of the cavities or concealment of the narcotics in it. There is also nothing on the record to establish that he (Moula Bakhsh) was in anyway involved in the transportation of the recovered material, nor the prosecution had established a nexus of the appellant either with the driver, with the tanker or with the recovered material, therefore, the prosecution has failed to bring the case of the appellant within the parameter of the section 6 of the Act.
6. My learned sister Judge assigned the reason for the conviction of the appellant that since the presence of the appellant (Moula Bakhsh) in the tanker was established and his defence plea was inconsistent, therefore, his case is at par with the case of the convict/appellant (Muhammad Ibrahim). I respectfully disagree with the reason prevailed upon by my learned sister Judge, for the simple reason that mere presence of the appellant (Moula Bakhsh) in the tanker with the convict/appellant (Muhammad Ibrahim) is no offence, unless the prosecution establish his involvement with the commission of the crime through the first degree of proof. And, there is no restriction upon appellant to take as many plea as available to him. Even if no defence plea is taken by the appellant or the same has been taken, but is not proved or is found to be false, still he cannot be held responsible for the commission of the offence, in absence, of an incriminating evidence against him. The onus to prove the case was since upon the prosecution, but it has failed, therefore, the conviction cannot be based merely on a contradictory plea, raised by the appellant during the trial.
7. Under such circumstances, I concur with my learned brother, Justice Muhammad Hashim Khan Kakar, wherein he has rightly held that "the case of appellant Moula Bakhsh is quite distinguishable from the case of appellant Muhammad Ibrahim. As such, the prosecution has failed to prove its case against appellant Moula Bakhsh beyond the shadow of doubt, therefore, appeal to the extent of appeal appellant Moula Bakhsh is accepted, impugned judgment dated 24th June, 2010 passed by the learned Special Judge, Control of Narcotic Substances Act, 1997, Lasbella at Hub to his extent is set aside and, while extending the benefit of doubt, he is acquitted of the charge".