' ROOH-UL-AMIN KHAN, J.---Appellant-convict Ahmad Gul along with his co-accused Darya Khan was tried by learned Judge Special Court/Additional Sessions Judge-I, Peshawar in case F.I.R.
No.332 dated 20-7-2008, registered under section 9(c) of the Control of Narcotic Substancees Act, 1997, and vide judgment dated 20-9-2010, he was convicted under section 9(c) of the CNS, Act, 1997 and sentenced to life imprisonment with fine of Rs.200,000 or in default whereof to undergo 6 months' S.I. Benefit of section 382-B, Cr.P.C. Was extended in his favour.
2. The prosecution case as per contents of F.I.R. Is that on 20-7-2008, Raza Muhammad Khan Inspector, on receipt of information regarding trafficking of huge quantity of narcotics through a Truck from tribal territory, conducted a barricade on Bara road near Ring Road Chowk Pishtakhara along with other police personnel. In the meanwhile at 1400 hours, a Truck bearing Registration No.C.2788-Swat coming from Bara side was intercepted. On query, the driver of the Truck, disclosed his name as Darya Khan while another person seated in front seat disclosed his name as Ahmad Gul (present appellant). On search of the Truck, 280 packets of baked charas were recovered, from its secret cavities, each packet weighing 1200 grams, total weighing 336 Kilograms. From each packet, sample of 5 grams was separated and sealed in parcel Nos.1 to 280, for Chemical analysis by the FSL. The remaining quantity was separately sealed. Both the accused were formally arrested.
The recovered contraband and the Truck were taken into possession through recovery memo.
Murasila was drafted and transmitted to the Police Station for registration of the case against the accused.
3. On completion of investigation, challan was put in court, where the accused-appellant was charged to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined four witnesses and after close of the prosecution evidence, appellant-accused was examined under section 342, Cr.P.C. Wherein he denied the prosecution allegations and professed his innocence. He declined to be examined on oath as his own witness under section 340(2), Cr.P.C.
Or to produce evidence in defence. On conclusion of trial, the appellant was convicted and sentenced as mentioned above. Hence, this appeal.
4. Learned counsel for the appellant-convict argued that impugned findings of the trial court regarding conviction and sentence of the appellant-convict are the result of misreading and non- reading of evidence as the prosecution has not brought an iota of evidence to prove the recovery of narcotics from direct or indirect possession of the appellant or on his pointation; that appellant was not the driver of the Truck, rather he boarded it from the way, having no nexus with its driver co-accused or the concealed contrabands in its secret cavities; that from the very first day of the occurrence till conclusion of trial the appellant remained on his stance that he had boarded the Truck on his way, as on that very day there was strike of transport union thus was having no concern with the concealed narcotics. Learned counsel maintained that if the appellant had any concern or knowledge about the narcotics, he would have definitely tried to escape but he has not done so which shows his ignorance about the narcotics and indicates his innocence; that the prosecution has failed to prove the conscious knowledge of the appellant-convict; that the Truck where from the alleged recovery has been effected has not been produced during prosecution evidence, thus the prosecution has failed to prove the guilt of appellant beyond the shadow of any reasonable doubt as such is liable to acquittal.
5. Conversely, learned counsel appearing on behalf of the State argued that charge against the appellant stands proved as all the witnesses are consistent with each other on all material particulars of the case which proves the presence of appellant along with his co-accused in the Truck, from which, huge quantity of narcotics has been effected; that P.Ws. Have no motive against the appellant to falsely implicate him in the case thus the learned trial court after making a proper appraisal of evidence has rightly convicted and sentenced the appellant and the impugned finding of the trial court being free from any infirmity is not open to any interference.
6. We have given anxious consideration to the respective arguments of the learned counsel for the parties and have thoroughly perused the record with their valuable assistance.
7. It is a case of recovery of huge quantity of narcotics from a Truck where appellant was allegedly travelling with his co-accused when the same was intercepted by the police and allegedly recovery of narcotics weighing 336 Kilograms, from its secret cavities was effected. Appellant Ahmad Gul has filed instant appeal against his conviction and we are confronted with his case.
Thus, it would not be appropriate to dilate upon the merits of the entire case, as it may prejudice the case of co-accused or the prosecution. The moot question before us, is the role of the appellant in the present case and to determine as to whether he had any conscious knowledge about the concealment of the narcotics in the Truck. Because in such like case, the prime and foremost duty of the prosecution is to establish conscious possession of narcotics. Admittedly, the appellant was not driving the Truck in question at the relevant time rather his presence has been shown with his co-accused in front seat of the vehicle. No recovery has been effected from physical possession of the appellant and the narcotics substance had been recovered from secret cavities of the Truck. The plea raised by the appellant from the very first day as well as in his statement recorded under section 342, Cr.P.C. Is that he boarded the Truck from the way and was not in knowledge of availability of narcotics in the vehicle. No evidence has been led by the prosecution to indicate that appellant had any knowledge that charas or narcotics substance has been concealed in secret cavities or had knowledge of that place so as to attract the provisions of Art.122 of the Qanun-e-Shahadat Order, 1984. If the narcotic substances have been found lying open in the vehicle and visible to the appellant or he knew placement of the same in the secret
(sic) affairs. In this respect reliance can be placed on case titled, "Muhammad Noor and others v.
The State" (2010 SCM R 927).
8. It is not disputed that the appellant was not sitting on front seat of the Truck, at the relevant time when the same was intercepted by the police. It is also admitted fact that the contrabands were lying in the secret cavities of the vehicle and the same have been recovered in presence of marginal witnesses of the recovery memo. But the prosecution witnesses, during trial, have categorically admitted that nothing has been recovered from the physical possession of the appellant. It was obligatory on prosecution to establish that the appellant had some direct relation with the recovered narcotic substance, vehicle or co-accused, who was driving the vehicle. Mere presence of the appellant in a vehicle would not be treated as sufficient to saddle him with the responsibilities of possession of narcotic substance recovered from the secret cavities of the vehicle. In this regard case titled, "Mst. Jameela and another v. The State" (PLD 2012 Supreme Court 369)" can be relied upon.
9. Section 6 of the Control of Narcotic Substances Act, 1997, provides that possession of narcotics drugs is an offence, which is punishable under section 9 of the Act. Section 6 reads as under:- "S.6. Prohibition of possession of narcotic drags 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".
' The word "Possess" appearing in the above quoted section, connotes some type of knowledge about the thing possessed by a person and it A shall be the duty of the prosecution to prove that the accused was knowingly in control of narcotic substance.
10. No doubt, under section 29 of the Act ibid, heavy duty lies on the shoulder of the accused to absolve him from the commission of offence and the court may presumed in a trial that the accused has committed the offence under the Act ibid, unless contrary is proved, but if the case is of the possession of narcotic drug, then first the prosecution B is under obligation to prove that the narcotic drug has been recovered from the conscious possession of the accused. In the instant case, the prosecution has not brought on record, an iota of evidence to minutely suggest that:--
(i) The appellant was in possession of the contraband;
(ii) The appellant was in some knowledge about any contraband in the vehicle;
(iv) The appellant was owner, cleaner or having any other nexus with the vehicle or in any degree related or acquainted with the driver co-accused, owner of the drugs or vehicle
(v) He was in knowledge of the secret cavities in the Truck and the recovery has been effected on his pointation.
' From the above discussion it can easily be gathered that knowledge of the appellant has not been proved by the prosecution through any cogent evidence either oral or documentary. The prosecution has simply proved his presence in the Truck with co-accused and mere presence of the appellant in the vehicle would not be sufficient to saddle him with the recovery of huge quantity of narcotics. Thus, the prosecution has failed to prove the guilt of appellant by proving his connectivity or any nexus with his co-accused or his conscious knowledge about the concealed contraband narcotics. This important aspect of the case escaped notice of the trial court and thereby reached to a wrong conclusion by convicting the appellant-convict Ahmad Gul.
Consequently, the findings of the trial court qua conviction and sentence of appellant-convict Ahmad Gul are set aside. These are the detailed reasons for our short order of the even date which is reproduced below:- "For the reasons to be recorded later on through detailed judgment, the instant appeal is allowed, the conviction and sentence of appellant-convict Ahmad Gul, recorded by the learned Judge Special Court/Additional Sessions Judge-I, Peshawar vide judgment dated 20-9-2010, in case F.I.R.
No.332, dated 20-7-2008, registered under section 9(c) of the Control of Narcotic Substances, Act, 1997 at Police Station Sarband, Peshawar are hereby set aside and consequently he is acquitted of the charge. The appellant-convict be set at liberty, if not required in any other case".