' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Fayyaz Ahmed son of Faqir Muhammad, caste Ansari, resident of Bhasar Pura, Kasur, appellant, was involved in case F.I.R. No.668, dated 28-8-2007, offence under section 9(c) of the Control of Narcotic substances Act, 1997, registered at Police station saddar Kasur and was tried by Mr. Muhammad Ajmal Hussain, learned Additional sessions Judge/Judge special Court C.N.s.A., Kasur. The learned trial Court seized with the matter in terms of judgment dated 10-9-2009 convicted the appellant under section 9(c) of the Control of Narcotic substances Act, 1997, and sentenced him to undergo imprisonment for life (R.I.) with direction to pay Rs.30,000 as fine and in case of default in payment thereof, to-further undergo s.I. For six months. Benefit of section 382-B, Cr.P.C. Was also extended in his favour. The appellant has assailed his conviction and sentence through filing the instant appeal.
2. The prosecution story as alleged in the F.I.R. (Exh. PA/1) lodged on the complaint (Exh.PA) of Abdul Majeed, s.I. (P.W.5) is that on 29-8-2007 at 7-55 p.m. During the course of investigation of case F.I.R.
No.667/2007, dated 29-8-2007, offence under section 9(c) of the Control of Narcotic substances Act, 1997, Police station saddar Kasur, Muhammad Ameen son of Muhammad Boota, caste Bhatti, resident of street No.126, Bhatta sohan in the presence of Ghulam Muhammad 321/C, Abdul Majeed 880/C, Muhammad Aslam 157/C and Tanveer Rafique 1330/C made disclosure that Fayyaz Ahmed son of Faqir Muhammad, caste Ansari, resident of street No.7, opposite Masjid Anwar-e-Madina was going to sale phakki contained in sacks loaded on a donkey cart. On that disclosure and pointation the Investigating Officer conducted raid at Jabumale Bus stop, Raiwind Road and apprehended the appellant, who was carrying 20 sacks of phakki while carrying on his donkey cart towards Arura. The recovered poust/phhaki was weighed and found 1200 kgs. (P-1/1-20) out of which the Investigating Officer separated 500/500 grams from each sack, made into sealed parcel and took into possession along with donkey cart vide recovery memo Exh.PB. The Investigating Officer drafted complaint (Exh.PA) and sent the same to Police station through. Tanvir Rafique constable for registration of F.I.R. The Investigating Officer inspected the spot and prepared rough site plan (Exh.PC). He also recorded the statements of the prosecution witnesses under section 161, Cr.P.C. On reaching the Police station the Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned. Having found the accused guilty, the Investigating Officer prepared report under section 173, Cr.P.C., while placing his name in column No.3 of the challan and sent the same to the court of competent jurisdiction.
3. The learned trial Court vide order dated 26-5-2008 formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. Prosecution in order to advance its case produced as many as five (5) prosecution witnesses. Abdul Majeed, s.I. (P.W.5) is the complainant, as well as, Investigating Officer of the case, whereas, prosecution version of recovery was supplemented through the statement of Ghulam Muhammad 321/C (P.W.4). On presentation of complaint Muhammad Anwar, s.I. (P.W.3) had chalked out formal F.I.R. Statements of rest of the prosecution witnesses are formal in nature.
4. Learned DDPP vide his statement dated 25-8-2009 after tendering in evidence the report of Chemical Examiner (Exh.PD) closed the prosecution evidence.
5. Appellant was also examined under section 342, Cr.P.C.; wherein he opted to lead defence evidence, and also opted to appear as his own witness in terms of section 340(2), Cr.P.C. In disproof of allegations levelled against him in the prosecution evidence. To a question why this case against him and why the P.Ws. Deposed against him, the appellant made the following reply:-- "All the P. Ws. Are police officials. They being police officials deposed against me. All the P. Ws. Are contradictory with each other on material points. I am innocent. I am married man. I have three kids and I am the sole bread earner. Since my arrest in this false case on 28-8-2007 I am facing the agony of this protractive trial."
' Subsequently the appellant while making his statement under section 340(2), Cr.P.C. Took the plea that he had no knowledge about the narcotic substance and he was shifting khashkash as a carrier in lieu of wages of Rs.300. Subsequently, after tendering certain documents in evidence, the appellant closed his defence evidence.
6. After hearing the arguments advanced by the learned counsel appearing on behalf of both sides, the learned trial Court, while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.
7. Learned counsel for the appellant while opening his arguments submitted that the prosecution failed to prove its case against the appellant} through leading cogent and confidence inspiring evidence, therefore, the learned trial court was not justified in recording conviction against him.
Learned counsel forcefully argued' that the stance of the appellant is that he was supposed to shift the substance packed in sacks and he had no conscious knowledge of the narcotics, which has also been admitted both by the complainant/Investigating Officer Abdul Majeed, s.I. (P.W.5), as well as, Ghulam Mustafa 321/C, witness of recovery, hence, the learned trial court fell in error while recording conviction especially when it finds mention in the impugned judgment of the learned trial court that the appellant was made scapegoat by his co-accused. The defence version on the other hand, learned counsel for the appellant emphasized, advanced in the statement of the appellant recorded under section 340(2), Cr.P.C. Straightway appeals to reason. Learned counsel next contended that as the prosecution failed to establish link of the appellant with the alleged recovered narcotics, therefore, report of Forensic science Laboratory does not advance the prosecution case against the appellant. Learned counsel next submitted that even otherwise it has come in the prosecution evidence that the appellant was not previously involved in any such activity. Learned counsel, at the end, prayed for clean acquittal of the appellant.
8. Contrarily, learned Deputy Prosecutor-General forcefully opposed the contentions advanced on behalf of learned counsel for the appellant with the submissions that bare reading of the crime report reflects that the contraband poust/phakki was recovered from the exclusive possession .Of the appellant and the prosecution by leading cogent and confidence inspiring evidence through the statements of P.W.4 and P.W.5 proved its case beyond doubt. Learned Law Officer further submitted that the defence plea taken by the appellant neither inspires confidence nor finds support from independent circumstances, therefore, the learned trial court while examining this aspect from every angle rightly disbelieved the same. It was next argued by learned Law Officer that the prosecution witnesses being government officials had no previous against the appellant to have falsely substituted him in place of real culprit(s). He further submitted that even otherwise the Investigating Officer had separated samples from each packet, which were sent to the office of Chemical Examiner in separate parcels and report of Chemical Examiner in respect thereof is positive, which fully substantiates the prosecution case against the appellant. It was finally argued that as the prosecution proved its case against the appellant to the hilt, .Therefore, the learned trial court was well justified in recording conviction and sentence against the appellant.
9. We have heard the arguments advanced by learned counsel for the appellant, as well as, learned Deputy Prosecutor-General and perused the record available on file.
10. It is a case of unique nature; wherein as per prosecution version on the disclosure made by Muhammad Ameen accused of case F.I.R. No.667/2007, dated 29-8-2007, offence under section 9(c) of the Control of Narcotic substances Act, 1997, Police station saddar Kasur, the Investigating Officer alongwith other police party conducted raid at Jabbumale Bus stop and apprehended the appellant and recovered narcotic substance (phakki poust) weighing 1200-KGs packed in 20 sacks. The stance of the-appellant, an the other hand, is that he being a labourer earned his livelihood by running his donkey cart and on the fateful day in lieu of Rs.300 as wages, he was asked by Muhammad Ameen to shift khashkhash in the sacks when he was apprehended by the police. The main emphasis of the appellant is that he was not having any knowledge that the luggage carried by him contained narcotic substance.
' In order to evaluate this stance advanced by the appellant, we have carefully examined the prosecution evidence available on the PCr.LJ record; according to which while making his testimony Abdul Majeed, s.I. (P.W.5), complainant/Investigating Officer of the case admitted certain facts in the following terms:- "According to my investigation accused was found just a carrier."
' Similarly Ghulam Muhammad 321/C, one of the witnesses of recovery also stated in the following terms:- "During the investigation it came to light that accused Fayyaz was just a carrier of donkey cart."
' If above portion of both the star witnesses of the prosecution is examined with care and caution the same lends support to the defence version that the appellant was not having any knowledge whether the luggage being carried by him in lieu of wages of Rs.300 was narcotic substance or something else.
11. Perusal of record reveals that while recording conviction against the appellant under section 9(c) of the Control of Narcotic substances Act, 1997, the learned trial court held the appellant violated the provisions of section 6 of the Control of Narcotic substances Act, 1997, which reads 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."
' With regard to applicability of the provisions of section 6 of the Control of Narcotic substances Act, 1997, in its celebrated judgment, the Hon'ble sindh High Court in its judgment in the case of NAZAR HUSSAIN and another v. THE STATE (2007 YLR 1601) had settled the following principle:-- "---s.6---Prohibition of possession of narcotic drugs etc.--- "Possess"---Connotation---Word "possess" appearing in s. 6 of the Control of Narcotic substances Act, 1997, connotes some sort of knowledge about the things possessed--- Accused must be knowingly in control of something in the circumstances which showed that he was assenting to being in control of the same---"
' It is pertinent to mention here that while settling this principle the Hon'ble sindh High Court had taken analogy from the judgment of House of Lords, England in the case of WARNER and METROPOLITAN POLICE COMMISSIONER [(1969) 2 A.C. 256 (HL)].
12. When provisions of section 6 of the. Control of Narcotic substances Act, 1997, are juxtaposed with the above referred pronouncement of Hon'ble Sindh High Court, it becomes crystal clear that conscious knowledge is required to attract the provisions of section 6. However, in this particular case not only the prosecution witnesses had admitted that the appellant was only carrier having no conscious knowledge about the narcotic substance rather the learned trial Court while convicting the appellant had observed as under:-- "He seems to be a poor man and admittedly a cart driver. Both Ameen and Khalid have been acquitted from the cases registered against them on the basis of report of Chemical Examiner received as negative whereas in case of present convict it is positive which speaks the mala fide of both the above mentioned persons who, dragged the accused in crime who was also supposed to be vigilant while dealing with his business. Question arises whether a person can be exonerated from offence if he is prompted to carry banned items for transportation or supply to any other place like explosive substance or dead body of a person. In case such carrier did not take care about the act going to be done by him he cannot be exonerated merely on the ground of his innocence and not being educated person." (underlining for emphasis)
' If above underlined portion of the judgment of the learned trial Court is scrutinized, having arrived at such a conclusion, we are of the considered view, it ought not to have recorded conviction rather it is a clear case of acquittal.
13. For the foregoing reasons as has been duly admitted by, the prosecution witnesses (both complainant/Investigating Officer and P.W.4) that the appellant was only carrier being owner of donkey cart, keeping in view the dictum of law referred to above, we are of the humble opinion that facts of the case in hand do not satisfy the provisions of section 6 of the Control of Narcotic substances Act, 1997, hence the learned trial court fell in error while recording conviction under section 9(c) of the Control of Narcotic substances Act, 1997.
14, Resultantly, Criminal Appeal No.340-J/2009 filed by Fayyaz Ahmed appellant is ACCEPTED IN TOTO as a consequence whereof conviction and sentence recorded by the learned trial court by way of judgment dated 10-9-2009 is set aside. Fayyaz Ahmed appellant is ordered to be acquitted of the charge in case F.I.R. No.668, dated 28-8-2007, offence under section 9(c) of the Control of Narcotic substances Act, 1997, registered at Police station saddar Kasur, and he is directed to be released forthwith if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.