Ikramullah Khan, J.--Through the instant appeal being filed by the appellants-convicts Zulfiqar s/o Shaukat and Saddiq Ullah s/o Inzar Khan against the impugned judgment of conviction, dated 23/09/2013 rendered by the learned Special Court/Addl. Sessions Judge, Kohat, whereby all the appellants herein were found guilty and resultantly were convicted and sentenced to life imprisonment, with fine of Rs. 100,000/- each and in default of payment of fine to suffer undergo S.I.
For six months. However, benefit of Section 382-B, Cr.P.C. Was extended to all the appellants.
2. According to the prosecution case, as disclosed in FIR No. 654 dated 04.08.2012 registered by local police of Police Station, Cantt. Kohat under Section 9-C CNSA at 16.10.Hours, the SHO, Police Station, Cantt, Kohat was on routine patrolling alongwith other police contingent, that he received, spy information that huge quantity of narcotics would be smuggled through Vehicle Motorcar No. 8296-B-Swat.
3. Keeping in, view, the aforestated information, the complainant in the company of other police personnels, made barricade at police check post. The aforestated car when arrived to the check post, therefrom Hangu side, was intercepted, and appellants were found present in the car.
Appellant Zulfiqar was on driving seat, appellant Saddiq Ullah was sitting on front passenger seat and appellant Hayat Ullah was sitting on the rear seat.
4. The car was thoroughly searched out and resultantly 22100 grams chars garda sealed in 19 packets were recovered, concealed in the front side dishboard of the car.
5. Therefrom the total recovered chars, 5/5 grams chars, was separated from each packet as sample for FSL analysis, and all the 19-parcels, of samples were scaled on the spot, on every parcel, the SHO/complainant affixed his monograms (A.F.). Rest of the contraband chars, was sealed into another, parcel being case property.
6. The appellants, and the recovered contraband chars, alongwith murasila was sent to the Police Station. The car was also taken into possession, while during process of searching the car, a bargain receipt of purchase of motorcar, 'therefrom one Muhammad by one Habib-ur-Rehman alongwith registration copy and one transfer letter of the motorcar was also recovered, which was taken into possession by the police.
7. The case against the appellant was investigated by the investigation staff and during course of investigation, three other accused, were stated to be involved in the transportation of the narcotics were made accused, however, no one amongst them so far is arrested as they have gone into hiding.
8. On completion of investigation normal challan under Section 173, Cr.P.C. Against the appellants, while challan under Section 512, Cr.P.C. Was submitted before the trial Court against the three absconding accused.
9. The learned trial Court, conducted the trial, after framing the formal charge, against the appellants, the prosecution was given an opportunity to prove, the charges under Section 9 of the CNSA, against the appellants.
10. The prosecution, in order to prove its case, examined as much as seven witnesses during course of trial.
11. PW-2 to PW-5 were either bargaining agent or previous owner, who deposed that the car was originally owned by one Habibur-Rehman, who sold out it to two person, Talib Jan (PW-4) his business partner (PW-3) who, in turn sold the car to one, Fazal Qayyum, the absconding accused, through bargain receipt Exh.PW-4/1.
12. PW-6, Umar Hayat, Sub-Inspector who was the complainant of the case, reiterated, word by word, the same story as already mentioned in the FIR.
13. PW-7, Zafar Ullah Khan, Sub-Inspector police, deposed that the investigation of the case was officially entrusted to him, he investigated the case in accordance with law and police rule.
Formally arrested the appellants, recorded statements of all PWs, interrogated the appellants, inspected the case property, placed on record the photocopy of transfer letter in the name of Syed Muhammad, and the bargain receipt, obtained custody of appellants, recorded statement of one Shafaat, the police constable (PW-10) who had taken the samples of chars, sealed in 19 packets containing 5 grams each to FSL for analysis and this PW also, placed on record the FSL report on receipt.
14. Also obtained from the Court, warrant under Section 204, PPC against the absconding accused, search out the houses of the absconding accused and on completion of the required investigation, handed over the record of the SHO, P.S. Concerned for further forwarding the appellants for trial before the Court.
15. PW-8 Muqarrab Shah, Foot Constable deposed that he was an attesting witness to the recovery memo. Exh. PW-6/1, and in his immediate presence on the spot, the complainant on search of the car, had recovered contraband chars sealed in 19 different packets, total when weighed was 22100 grams, 5 grams each from every packet was separated and were sealed in 19 parcels, for further analysis by FSL while the remaining contraband chars was sealed into a separate parcel for Court examination, being case property. He deposed that he had signed the recovery memo, who was shown to him, on which he admitted his signature as correct.
16. PW-9 Sardar Khan, who deposed that he had reduced the murssila word by word into the FIR, Exh. PA which correctly bore his signature.
17. The learned trial Court, afforded full opportunity to the appellants to cross-examine the prosecution witnesses, and every prosecution witness was fully cross-examined at length by appellants counsel.
18. On close of prosecution evidence, statements of appellants under Section 342, Cr.P.C. Were duly recorded, with express offer for producing any defence witness, however, the appellants opted not to produce any defence, in support of their plea of innocence.
19. On conclusion of trial, the learned trial Court, while giving opportunity of hearing to both the parties, on facts of case, held guilty the appellants and as such accordingly convicted and sentenced them as mentioned in the first paragraph of this judgment.
20. The learned counsel for the appellants contended that, the impugned judgment of conviction is arbitrary, erroneous, illegal and the learned trial Court has not applied his judicial mind to the facts and circumstances of the case, thereby, not appreciated the law and facts on record, that prosecution has failed to prove the case-beyond reasonable doubt. On the other hand, the learned Law Officer, on behalf of the State, supported the impugned judgment and argued that, the appellants were rightly held guilty for the commission of offence and the prosecution has proved its case, against the appellants, beyond any reasonable doubt, that the learned trial Court has properly appreciated the facts on record and appellants were sentenced in accordance with law, that no any iota material contradiction, could be pointed out in the consistent statement of the prosecution witnesses who are independent, impartial and unbiased, who had no any false motive or mala fide, against the appellants to implicate them in such a heinous offence.
21. We have not only attended to the arguments of the learned counsel for the parties but also have scrupulously, gone through the record and have considered the arguments of both the learned counsel in light of law and facts on record.
22. It is century old principle of criminal dispensation of justice that, the primary burden of proof, lies on prosecution. Prosecution is duty bound and could not by any means, be absolved there form its legal duty, in this regard, irrespective of the provisions contained in Section 29 of the Control of Narcotics Act, 1997 (CNSA).
23. The prosecution, in the first instance has to discharge its legal burden and thereafter, the burden would be shifted in view of Section 29 of the CNSA to the accused, facing trial under the provisions of the CNSA, in this regard.
24. In case in hand, the whole facts as alleged by the prosecution, revolve around, the transportation of huge quantity of chars, through a car bearing registration No. B-8296/Swat, which was intercepted by the local police and the chars packed in 19 bags concealed in secret cavities of the front side of dashboard of the car, which was intercepted by the local police. So, it was incumbent on the prosecution, prior to lead any other evidence in this regard to have proved that appellants were arrested, present in the car, from which the huge quantity of narcotics chars was recovered, being concealed in a secret cavities, made for the purpose in the car. Not only the car but the alleged secret cavities and the open dashboard, shall be shown to the trial Court during course of trial, but prosecution had failed to produce the car, from which the chars was recovered, before the learned trial Court, which was neither exhibited in the Court nor any reference, observation was made to such secret cavities by the learned trial Court.
25. When the basic piece of evidence, on which the whole edifice of the case was rested, not proved in accordance with the provisions of the Qanun-e-Shahadat Order, 1984, rest of the evidence, produced by the prosecution, could not bring guilt home to the appellants.
26. Even otherwise, mere recovery of narcotics from a vehicle, in which some accused were found traveling would not automatically connect them with the commission of offence, unless the prosecution succeeded in establishing that the person found in the car had conscious knowledge of the same.
27. Likewise, where narcotics drugs, were found, lying concealed in a vehicle in such a manner that it could not ordinary be discovered from inspection of the vehicle and it was necessary to have a special knowledge of a person in the vehicle, could not make him liable for conscious possession of such narcotics drugs. Reliance be placed on the case of "Gul Amin Vs. The State" (2007 P.Cr.L.J.483).
28. It is the golden principle of law, that a single circumstance or a single dent, in the prosecution case, which creates doubt, the involvement of an accused in the commission of the offence, or any other cause, in manner and mode of the alleged occurrence, which create doubt, would be sufficient to discard the prosecution case. Reliance be placed on the case of "Mir Muhammad Vs. The State" (2008 M LD 1333).
29. Prosecution at all probabilities, would have to prove its case beyond any reasonable doubt particularly in cases, where accused f has to be awarded capital punishment. As severe as the punishment, higher and safe shall be the standard of evidence.
30. No any accused person could be punished for capital punishment, on presumption and weak type of evidence.
31. In case in hand, the vehicle, from which the narcotics drugs was allegedly recovered, being concealed in secret cavities, made for the purpose was not at all produced by the prosecution in course of trial, to substantiate, that some secret cavities were made there, wherein the alleged narcotics could be concealed, while the number of accused as allegedly found therein, could be accommodated. Non-production of the car has created serious dent in the prosecution case.
31.32. As, the prosecution has failed to prove, what had mentioned in the FIR, on which the whole prosecution case hinges, have created serious doubts that the offence as alleged by the prosecution has not happened to be committed in the manner and mode as alleged by the prosecution. As, the prosecution has not proved its case beyond reasonable doubt, therefore, for reasons given herein above, this appeal is allowed. The conviction and sentence awarded to the appellants are accordingly set aside and they be released forthwith, if not required in any other case.