' Ms. Musarrat Hilali, J.--Appellant stands convicted u/S. 9(c) CNSA in case FIR No, 293 dated 4A.2011 u/S. 9(c) CNSA Police Station Pishtakhara and sentenced to imprisonment for life with a fine of Rs, 50,000/- or in default thereof to undergo six months SI with benefit of Section 382-B, Cr.P.C. The judgment of conviction was handed down by learned Additional Sessions Judge/Judge Special Court, Peshawar on 10.10.2012.
2. As per FIR version, the local police was having information regarding transportation of huge quantity of narcotics from tribal territory to Punjab in a dumber (truck) filled with sand, thus, acting on the same, Fazal Wahid Khan SHO alongwith other police contingent laid barricade near Pishtakhara Chowk when in the meanwhile the said dumber (truck) emerged on the scene, which was signaled to stop, however, the driver accelerated the speed and after covering some distance stopped the vehicle near abadi and fled from the spot while taking advantage of darkness whereas arrested appellant occupied the front seat. On inquiry, the appellant disclosed the name of driver as Wazir. The search of the vehicle by removing the sand led to the recovery, of 50 sacks of chars pukhta containing 20 packets of chars pukhta in each sack weighing 1 KG each packet in toto 1000 KGs. Necessary samples were separated from the recovered stuff while the remaining was sealed into separate parcel. During inquiry, the appellant disclosed that the vehicle is ownership of absconding co-accused Khalid and Roid, hence the narcotics was seized and the vehicle was into possession, thus, the instant case was registered.
3. After completion of investigation, appellant was charge sheeted to which he did not plead guilty and claimed trial while co-accused were proceeded in terms of Section 512, Cr.P.C.
4. At the trial, in order to substantiate its case, the prosecution examined 5 witnesses in all while abandoning PW Abdul Wahid, where after statement of appellant was recorded, wherein, he denied the allegation. Appellant also opted to produce defence evidence and intended to be examined on oath, hence he was examined u/S. 240 (2), Cr.P.C. However, the trial culminated in conviction and sentence of the appellant, as mentioned above, which is impugned in the instant appeal.
4-A. Heard. From perusal of record, it appears that on a tip of information, nakabandi was made on Ring Road near Pishtakhara Chowk when in the meanwhile a dumper, fully loaded with sand coming from Bara tribal belt on pointation of informer, was signaled to stop but the driver accelerated the speed, which was chased and after covering some distance, the driver of the dumper abandoned the vehicle and ran away while the appellant did not ran and remained seated on the front seat of dumper, where after the needle of suspicion was pointed at the appellant. In the instant case the question for consideration is whether the appellant was in conscious possession- of the contraband recovered from the vehicle. The prosecution is required to prove beyond reasonable doubt every element and every ingredient, which is essential to constitute an offence. Mere presence of appellant on the front seat in absence of proof of anything more, cannot be presumed to be in possession of the goods kept in the dumper.
5. Possession is the core ingredient to be established before the accused is subjected to punishment provided under the law, it must be knowing and conscious. In similar circumstances, the Hon'ble Supreme Court in the case of Jamila vs. State reported in PLD 2012 SC 369 has held in the following manner: "The law on the subject is quite settled 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 vehicle unless the prosecution establishes through independent evidence that such passenger was conscious and aware of availability of narcotic substance in the vehicle".
In this case after perusal of record, it was found that not even an iota of evidence had been produced through independent evidence to prove that the appellant was having physical contact with the contraband. Admittedly, the appellant was neither driving the car at the relevant time nor he was owner of the vehicle. Moreover, the record is silent about previous involvement of the appellant in such like offences in the past, therefore, on this ground too his case requires favourable consideration. All these facts and circumstances were not taken into consideration by learned trial Court while recording conviction and sentence of the appellant, therefore, the impugned judgment merits reversal.
' This appeal was allowed vide short order of even date and above are reasons for the same.