' RIAZAT ALI SAHAR, J.---Two appellants were tried for an offence, punishable under section 9(c), Control of the Narcotic Substances Act, 1997 by the Special Judge for C.N.S., Naushahro Feroze, whereby convicted and sentenced to life imprisonment and Rs.5,00,000 as fine to be paid by each appellant. This was done by a Judgment dated 12-2-2011. They have, by dint of this Jail Appeal, assailed the validity of the said Judgment.
2. An F.I.R. Fell to be reported on 25-8-2008 with Excise Police Station, DIO Camp at Kandiaro stating receipt of information as to trafficking of Charas in a trailer, consigned with cement. Thereupon the Excise Police rushed to National Highway, suspected a trailer (TLA-280), stopped it, searched and recovered 100 bundles of Charas (each bundle containing 4 packets of Charas) underneath cement, consigned thereon. Two persons were aboard the said trailer; one, driving it, was Barkat and the other, sitting with him, was Shahid. Every packet was found to be containing 5 Kgs. Of Charas and total weight of Charas became 2000 Kgs. 8/8 packets of Charas were sealed in plastic bags and 500/500 grams were segregated from each plastic bag and were sent for analysis and the remaining Charas was sealed in 50 bags at the spot. The Analyzer certified the samples to be Charas.
3. Ajmal and Jamroz were also booked along with aforesaid appellants Barkat and Shahid. Ajmal had allegedly hired the vehicle for transportation of the contraband material and Jamroz was the owner of the vehicle; both of them were declared as proclaimed offenders.
4. Barkat and Shahid were supplied documents and, to the charge, they had pleaded "not guilty" and were tried accordingly. P.W.1 Ghulam Shabir, P.W.2 Ghulam Murtaza and P.W.3 Shokat Ali were examined by prosecution to bring its charge home.
5. In the statements under section 342, Cr.P.C., of appellants, they refuted the allegations, levelled against them and professed innocence. They opted for entering witness box to give statements on oath under section 340(2), Cr.P.C. One of them, Barkat, stated that he was driver of Vehicle No. 8672 (vehicle in-question) and Vehicle No. TLA-280 belonged to same owner and his vehicle was consigned with cement; one Zafar was co-driver with him in the said vehicle. Said Zafar was arrested with him at Kotri Kabir and was then released on payment of illegal gratification while he having not done that payment, was planted upon the recovery, said to have been effected from Vehicle No 8672. Another appellant, Shahid, took stance that he had got lift from co-accused, he was unacquainted with him previously; he denied that he was a driver and that the Charas was recovered from the vehicle, he was aboard.
6. Mr. Muhammad Iqbal Mahar, counsel for appellant Barkat, Mr. Abdul Baqi Jan Kakar, counsel for Shahid and Mr. Zulfiqar Ali Jatoi, Deputy Prosecutor-General were heard by us.
7.. Mr. Mahar submitted that there is no mention as to absconders in the charge, framed by the, trial Court; all the witnesses are Excise officials; complainant has himself conducted formal investigation and, therefore, the appellants have wrongly been convicted and sentenced by the impugned Judgment, which has, therefore, to be set aside.
8. Mr. Kakar submitted that Shahid, nowhere, has been alleged to be co-driver or cleaner and he was just a passenger and, therefore, he has not been proved to be in knowledge of the availability of Charas in the vehicle and, thus, his conviction was illegal and the same has to be struck down accordingly. He relied upon Nadir Hussain and another v. The State, 2007 YLR 1601 and Muhammad.
Noor and others v. The State, 2010 SCM R 927.
9. Mr. Jatoi, conversely, has defended the impugned Judgment submitting that. There is no material contradiction in the evidence of prosecution witnesses; Police officials are good witnesses; complainant can conduct investigation himself; both the appellants, having travelled together, have to be presumed to be in knowledge of the availability of the contraband material. He relied upon Zafar v. The State, 2008 SCM R 1254.
10. We have scanned the material, available before us, in the light of aforesaid submissions and have also gone through the precedents, cited before us.
11. Submission of Mr. Mahar that charge having no mention as to absconding accused therein is defective suffices it to observe that this has not misled and/or prejudiced the appellants in any manner because they seem to have refuted the allegations and have given different defence account, as is evident from their statements on oath. Had there been any prejudice caused to the appellants by the defect in the charge, they would not have taken such stance, meaning thereby they had explicitly understood the charge, against them. This being so, the submission is of no importance. Next submission was that the witnesses are Excise officials and, therefore, they cannot be relied upon. We are afraid the submission is bereft of merit in view of the fact that it has time and again been held by august Supreme Court of Pakistan that evidence of official witnesses does not become invalid and cannot be discarded unless they are shown to be inimical and/or interested to falsely implicate the accused in the charge. Zafar's case (supra) may be referred to wherein it has been observed as under:-- "The police employees are the competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are the police employees as laid down in the cases of Muhammad Azam v. The State PLD 1996 SC 67, Muhammad Hanif v. The State 2003 SCMR 1237, Riaz Ahmad v. The State 2004 SCMR 988 and Naseer Ahmad v. The State 2004 SCMR 1361."
12. In the present case, the appellants have admitted in their statements recorded on oath that they had no enmity with the officials, who have stated against them and, therefore, in absence of any motive with the official witnesses to foist the recovery upon the appellants, their testimony cannot be brushed aside unless and until the contrary is proved, and the same has rightly been believed by the learned trial Court to the extent of recovery from the vehicle but question of possession and transportation was not properly discussed and appreciated.
13. It was next submitted that the complainant has himself taken the task of investigating the case.
This submission, too, is without force inasmuch as there has not been any embargo on the complainant being Investigating Officer. This has been so observed in Zafar's case (supra).
14. Coming to the contention of Mr. Kakar that appellant Shahid has not been alleged to be co- driver, therefore; and in view of his statement on oath that he had got a lift, it is quite clear that he was not in knowledge of the Charas being available in the vehicle, which, too, he has denied. Nadir Hussain's case (supra) was firstly relied upon to support this assertion. In the said case, after finding driver of the vehicle to be guilty because of having knowledge of availability of Charas as being in control of the vehicle, it was observed as to the co-accused as under:-- "As regards the case of Zulfigar Ali, the prosecution alleged that he was sitting by the side of the appellant Nazar Hussain at the time when the truck was intercepted. The prosecution did not produce any evidence to show that he was in joint possession or control of the truck or he had any concern or dealt with the property in any manner. But on the contrary the Charas was concealed in secret cavity made in the truck that clearly shows that it was hidden from all persons. There is no evidence to indicate that appellant knew that Charas was concealed in the secret cavity or he had exclusive knowledge of the said place so as to attract the provisions of Article 122 of Qanun-e-Shahadat Order, 1984. If the property was lying open within the view of the appellant or he knew the placement of property then the situation would have been quite different. In such a situation he was required to explain his position, without such explanation his involvement in the case would be proved. However, such facts are not attracted in the present case, therefore, the appellant is not required to explain anything. The prosecution has simply proved his presence in the truck. Therefore, mere presence of the appellant Zulfiqar Ali in the truck would not involve him in the case unless conspiracy or abetment of the offence is shown and proved. Thus the case of appellant Zulfiqar Ali is distinguishable from the case of appellant Nazar Hussain. The prosecution has failed to prove the case against appellant Zulfiqar Ali."
15. Muhammad Noor's case (supra) was also relied upon by Mr. Kakar. In the reported case, it was observed by the Apex Court that knowledge of availability of contraband material must be proved by prosecution and without that the conviction cannot hold the field.
16. Indeed, knowledge implies possession and unless mens rea is there, charge under the Control of Narcotic Substances Act, 1997 cannot hold field. It has been stated by P.W.1 Ghulam Shabir in his examination-in-chief, P.W.1 as under:- "1 saw that two persons including driver were sitting in the trailor. The cement was loaded in the trailor. Then I got down both of them. I enquired the name from driver, who disclosed his name to be Barkat son of Doulat Khan Pathan Shanwari resident of Landikotal. Another accused disclosed his name to be Shahid son of Muhammad Jalal Afridi resident of Hangoo Kohat."
17. P.W.2 Ghulam Murtaza deposed in his examination-in-chief as under:-- "We proceeded and when we reached at link road Khanwahan near National Highway and we got down from the vehicle and waiting for trailor. We saw one trailor was coming, its number was PLA
280. We signalled the trailor to stop. The driver of the trailor stopped the trailor and we saw two persons available in the traitor. Then we got down them from the trailor and enquired names from them. Driver of the trailor disclosed his name to be Barkat son of Doulat Khan by caste Shanwari resident of Ashkheli Landi Koal and another person disclosed his name to be Shahid Khan son of Muhammad Jalal by caste Afridi resident of Jerma, Taluka Hingbo District Kohat."
18. It becomes unambiguously clear from this evidence that mere presence of appellant Shahid in the vehicle has been alleged, not a single word has been deposed regarding his association with driver or any connection with the recovery by the P.Ws. The evidence does not imply his knowledge as regards availability of Charas. Therefore, it has quite correctly been submitted by Mr. Kakar that Shahid had no knowledge about Charas being available underneath the cement. We have been unable to find any substantiation, that depicts knowledge of Shahid, who was neither driver nor a cleaner of the vehicle from which the contraband was recovered. He seems to have stated on oath that he had got a lift from co-accused Barkat (driver). Conviction against him accordingly cannot be sustained.
19. Insofar as the case of appellant Barkat is concerned, he was driver of the vehicle and driver has to be presumed to be having knowledge of availability of recovered Charas and such presumption is corroborated with the evidence, It has been observed by Supreme Court of Pakistan in Muhammad Noor and others v. The State, 2010 SCM R 927, as under:- "9. Keeping in view the above principles of law, the appellant Muhammad Noor is Driver, therefore, he is in possession of the vehicle and also in possession of the articles whatever lying in it. The allegations against the appellant Muhammad Ramzan is that on his information secret cavities of the vehicle were opened and Charas was secured. Thus, from such information it has been established that he had knowledge of the availability of Charas in the secret cavities of the vehicle. Therefore, the appellant Muhammad Ramzan is also involved in the case along with the appellant Muhammad Noor. Hence, the case has been proved against both the appellants Muhammad Ramzan and Muhammad Noor."
20. In view of these observations of the Hon'ble Supreme Court and the fact that no animosity has been alleged against the official witnesses, the appellant (Barkat) being driver of the vehicle is held guilty of transportation of contraband material as being in knowledge thereof. Therefore, he has rightly been convicted.
21. Result, thus, is that this appeal is partly dismissed and partly allowed, that is to say, appeal of appellant Barkat is dismissed and conviction and sentence inflicted upon him is maintained; however, the appeal of appellant Shahid is allowed; he is acquitted of the charge and is ordered to be released immediately if he is not required in any other case.