' Mrs. Irshad Qaisar, J.--These appeals under Section 410 of Criminal Procedure Code, 1898 is directed against the conviction and sentence awarded to appellants Wali Khan and Yaseen by the learned Additional Sessions Judge-II, Peshawar vide judgment dated 23.04.2014, in case FIR No, 466 dated 23.05.2013 registered under Section 9-C, Control of Narcotics Substances Act, 1997 Police Station Pishtakhara whereby, each of the appellants was convicted and sentenced to undergo life imprisonment with fine of Rs, 2,00,000/- each and in default thereof they shall suffer 06 months S.I.
Benefit of Section 382-B Criminal Procedure Code, 1898 was extended to convict/appellant.
2. The brief but relevant facts of the case as per contents of FIR are that on the basis of spy information, that huge quantity of narcotics will be smuggled from triable territory to Punjab the Seizing Officer Ihsan Ullah alongwith other Police contingents rushed to Pishtakhara Square and laid Nakabandi over there. On 23.05.2013 at about 14:20 hour, an oil tanker/truck bearing Registration No, TTA660, Quetta on which PSO was written, arrived at the spot which was stopped for checking. The driver of the vehicle disclosed his name as Yasin son of Fazal Muhammad while a person seated with him on front seat disclosed his name as Wali Khan and stated that he is the owner of Tanker. The Tanker was parked in the near by workshop and the mechanic was called who on the pointation of the informer cut the middle of the tanker on the top and opened the specially created secret _cavity inside the tanker. From the said secret cavity 60-bags were recovered. Each bag was consisted of 20 packets of charas Pukhta and each packet was of one kilogram, total 1200 Kilograms. After doing the needful both the accused were arrested and the recovered contrabands were taken into possession. Murasila was drafted, and present case under Section 9-C, CNSA, 1997 was registered against them.
3. On completion of investigation complete challan was submitted before competent Court of law.
Accused were produced. Provision of Section 265-C, Cr.P.C. Complied with and they were charge sheeted to which they did not plead guilty and claimed trial. Trial Commenced. To prove its case prosecution produced 9 witnesses. After closing the prosecution evidence, statements of appellants were recorded u/S. 342, Cr.P.C. In their statements they denied all the allegations figuring against them in prosecution evidence, professed innocence and alleged false implication.
However, they refused to be examined on Oath or produce any defence evidence. At the conclusion of trial, appellant was convicted and sentenced, the detail of which is given in Para No, 1 of this judgment. Hence present appeal.
4. Valuable arguments of the learned counsel for the parties heard and the record perused with their assistance.
5. To prove its case the prosecution produced as many as nine witnesses. PW-1 Iltaf Hussain-1322, PW-2 Ihsan Shah Inspector, PW-3 Ijaz Ullah Khan ASI, PW-4 Fazal Mehmood No, 2528, PW-5 Sultan Sher, ASI, PW-6 Shehriyar ASI, PW-7 Amjid Khan, PW-8 Zafarullah JMIC-IX, Peshawar and PW-9 Hamd Ullah Khan SI/CIO.
6. Before this Court dilates upon the evidence produced by the prosecution and the finding recorded thereon by the trial Court, it would be pertinent to appreciate that CNSA is a special law, which the legislature has enacted mainly to curb the menace of narcotics in our Country and thus has provided therein special provision to achieve the said end. One of the main striking features provided in CNSA, which is different from the general principles of safe administration of criminal justice is that the onus to prove the guilt of the accused has not been placed entirely on the prosecution but on the accused to prove his innocence u/S. 29 of CNSA. But as it is repeatedly held by the Superior Courts that the prosecution cannot be totally absolved of its obligation and duty of initially establishing a prima facie case of recover of contraband from the accused and only after the said initial burden is discharged by the prosecution then the burden could shifts on the accused to prove its innocence.
7. Now keeping in view the 'ratio decidendi' of the judgment of Superior Courts, we have to see whether the prosecution has been able to prove its case against the appellants.
8. In the present case two accused/appellants are involved. Different role has been attributed to each appellant. Appellant Yaseen is charged as the driver and custodian of the tanker, while another person namely Wali Jan was sitting with the driver in the front seat and he disclosed that he is the owner of the seized tanker. First we want to discuss the case of appellant Yaseen driver of the tanker. To prove its case prosecution produced PW-2 Ihsan Shah, Seizing Officer, PW-3 Ijaz Ullah Khan, and PW-7 Amjad Khan as marginal witnesses of recovery memo. Ex.PW-2/1. They have given the ocular account of the occurrence. All these PWs have given the detail of interception of oil tanker bearing Registration No, TTA-660 Quetta and during inquiry driver disclosed his name Yaseen while the other person sitting with the driver disclosed himself as Wali Khan. During the search of the truck secret cavity was found in it and when it was opened 60 bags each consisting of 20 packet were recovered. The weight of each packet was one kilogram. A perusal of the evidence on the record would reveal that all the PWs are quite consistent in their statement that a truck mentioned above were intercepted on account of an information received in advance. All the three PWs reiterated the story in line with the averment made in the FIR. They were subjected ta lengthy cross-examination, but it did little to wring anything from their mouth as could suggest that no recovery was effected from the secret cavity of the oil tanker which was under the exclusive control of the appellant Yaseen as its driver. There is nothing in their statement as could give rise to the inference that they had any interest or animus to falsely implicate him. Though there are minor discrepancies in the statement of the PWs but they are not of the type as could discredit their testimony. such discrepancies so occur when the witnesses were examined after the lapse of more than 06-month and they are also witnesses of other cases of the similar nature. During the lengthy cross-examination of witnesses not a single question was asked from them that either appellant was not present in the driving seat of oil tanker or that he was arrested from some other place. The date, time and place of occurrence is proved from the record. It is also proved that accused was driving the vehicle from where huge quantity of charas was recovered. We have no hesitation in mind to hold that prosecution proved the factum of recovery on the basis of forthright and convincing evidence. The statement of all the above PWs have been thrashed out in depth who all have supported the prosecution version. Their evidence is consistent on all material particular worthy of credence and inspired confidence. Appellant failed to rebut the trustworthy and consistent evidence produced by prosecution witnesses. The testimony of these witnesses had rightly been relied upon by the trial Court.
9. The other piece of evidence against accused is his confessional statement Ex.PW-8/2. PW-8 Zafarullah JMIC-IX has given the detail of recording of confessional statement of accused. He stated that he recorded the statement after fulfilling all legal formalities, giving full opportunity to the accused and after satisfaction that the accused was willing to confess his guilt. In his confession he has admitted his presence in the oil tanker from where the recovery of huge quantity of charas was affected. There is nothing on record that this statement was recorded after adopting third degree method. PW-9 who is the I.O. Of the case was subjected to lengthy cross-examination, but no question of torture was asked from him.
10. Beside the ocular and circumstantial evidence, prosecution case is also supported through documentary evidence in the shape of report of Forensic Science Laboratory. According to record Seizing Officer separated 5/5 grams from each packet and sealed the same into Parcels Nos. 1 to 1200 by affixing 2/2 seals in the name of PR monogram. He drafted application Ex.PW-2/2 for F.S.L opinion. PW-9 I.O. Hameed Ullah received report Ex.PW-9/3. According to this report the concerned Officer of F.S.L received one thousand and two hundred sealed parcels marked as 1 to 1200 bearing 2/2 seals in the marks of PK from F.0 No, 1322 and it was opined that it was charas in P-1 to P1200.
Iltaf Hussain 1322 who had taken the parcels to Forensic Science Laboratory was examined as PW-1.
He stated that Fazal-e-Mahboob Mad Muharrir handed over Parcel Nos. 1 to 1200 to him through Receipt No, 501/21. He took the same and handed over to the Chemical Examiner. Concerned Madad Muharrir Fazal Mehmood was examined as PW-4. He confirmed the statement of PW-1 and stated that he sent the sample to F.S.L through Iltaf Hussain 1322. Shehryar Muharrir of Police Station who kept the sample and case property in safe custody was examined as PW-6. All these PWs were cross-examined, but their evidence remained consistent on material points. It is proved that the Forensic Science Laboratory report is in respect of the sample which were taken from the charas recovered from accused.
11. The main contention of the counsel for accused is that he had no conscious knowledge of the charas which was concealed in the secret cavities of the oil tanker. These arguments also appears to be fallacious, if considered in the matrix of the case. We cannot agree with the learned counsel for the appellate who is the driver of the vehicle, had no knowledge of the incriminating substance recovered from the secret cavities of the oil tanker, when the driver carrying the load are always particular about weight and number of things being loaded in the vehicle and they cannot be heard saying that they had no knowledge of the concealed items. Apart from all this, where there is nothing on the record to show that PWs deposing against him, have any ill will or ulterior motive to falsely implicate him, their evidence cannot be doubted. He himself also corroborated the statements of PWs while recording his confessional statement. Report of F.S.L, supported the version of PWs, also leave no doubt as to the guilt of the appellant Yaseen. We, thus, have no hesitation to hold that the trial Court has rightly convicted and sentenced him.
12. However, the case of Wali Khan appellant is based on different footing. Admittedly he was also present with the appellant Yaseen on the front seat of the oil tanker. He was arrested on the ground that he claimed to be the owner of the truck. Admittedly he made no confession before the competent Court of law. It is also admitted fact that his mere passive presence in the vehicle cannot constitute an offence against him. Now it is to be seen that whether he was the owner of the oil tanker and whether he had conscious knowledge of the huge quantity of charas which was lying in the secret cavity of the tanker. In his examination-in-chief PW-2 Seizing Officer stated the other person sitting along with the driver on the front seat disclosed him self to be the owner of the truck, namely Wali Khan. In his cross-examination he admitted that registration of the vehicle is not in the name of any of the accused PW-3 Ijaz Ullah and PW-7. Amjid Khan eye-witnesses of the occurrence have not uttered a single word in respect of the fact that during interrogation Wali disclosed that he is the owner of the oil tanker. PW-9 Hameed Ullah Investigation Officer has not been able to collect any evidence in respect of the ownership of the appellant Wali Khan. In his cross-examination he admitted: "It is correct that the letter for confirmation of the ownership of the taken has not been replied by the concerned MRA. I cannot say about the ownership of the oil tanker."
13. In such circumstances it cannot be said that appellant Wali is the owner of the tanker. It is settled law that mere presence of accused in the oil tanker from which contraband was recovered, was not sufficient to connect him with the offence unless prosecution would bring material to establish that he had the knowledge of contraband articles lying in the said oil tanker. Reference is given to (2008 MLD 79 Karachi) "Taj Muhammad versus State." Prosecution also failed to prove that accused was in the knowledge of the contraband articles. Reference in this respect is also made to (PLD 2012 Supreme Court 369) "Mst. Jamila versus State", (2015 SCM R 1000) "Province of Punjab through D.F.0 Forest Department Attock versus Member Federal Land Commissioner, Islamabad and others" and (2015 SCM R 291) "Akhtar Iqbal versus State".
14. In such view of the matter the conviction and sentence recorded by the learned trial Court against appellant Wali Khan in the circumstances is liable to be reversed.
15. For the reasons discussed above the appeal of appellant Yaseen being without substance is dismissed. However, we by extending the benefit of doubt to Wali Khan appellant, allow his Crl.
Appeal, set aside his conviction and sentence recorded by the learned trial Court and acquit him of the charge. He be set free forth with, if not required in any other case.
16. Above were the reasons of our short order of even date.