ABDULLAH BALOCH, J.---This common judgment disposes of Criminal Appeal Nos.187 and 194 of 2016 filed by the appellants Muhammad Hashim son of Muhammad Saleem and Sanaullah son of Abdul Manan, respectively, against the judgment dated 22nd April, 2016 (hereinafter referred as, "the impugned judgment") passed by the learned Special Judge (CNS) Lasbella at Hub (hereinafter as, "the trial Court"), whereby the appellants were convicted under section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred as, "the C.N.S. Act") and sentenced to suffer Life Imprisonment each with fine of Rs,100,000/- (Rupees One Lac) each or in default thereof to further suffer S.I. For one year each, with the benefit of section 382-B, Cr.P.C.
2. Facts of the case are that on 29th March, 2015 the complainant Shamsi Baloch, Naib Sobedar, Coast Guards Uthal, lodged FIR No,08/2015 at Police Station Coast Guards Uthal, under section 9(c) of the C.N.S. Act, 1997, stating therein that on the day of occurrence at about 06.00 p.m. The Pakistan Coast Guards Uthal, were checking the vehicles at Naka Khararri Check Post main RCD Road, when a passenger Coach bearing Registration No,BSA-554 was stopped for checking purposes, wherein the appellants Sanaullah and Muhammad Hashim were found sitting and beneath their seats two bags were found, the ownership whereof was claimed by the appellants.
The search of the said bags was resulted into recovery of 40-packets of slate shaped Charas weighing 40-Kgs, hence samples of 10/10 grams were separated for analysis and were sealed in parcels for analysis and the appellants were arrested.
3. In pursuance of the above FIR, investigation was conducted by PW-3 Sobedar Fayyaz Ahmed, who took into possession the recovered contraband; recorded the statements of witnesses under section 161, Cr.P.C.; sent the samples for analysis to FSL and received the analysis report in affirmative. After completion of investigation, challan was submitted in the trial Court.
4. At the trial, the prosecution produced three witnesses, whereafter the appellants were examined under section 342, Cr.P.C. They also recorded their statements on oath under section 340(2), Cr.P.C., however, did not produce any witness in their defence. On conclusion of trial, the appellants were found guilty under section 9(c) of the Act, 1997, and were convicted and sentenced as mentioned above. Whereafter, instant appeals have been filed.
5. Learned counsel for the appellants contended that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and, thus, these appeals warrant acceptance with a resultant acquittal of the appellants; that the ownership of the recovered bags containing alleged contraband was not proved; that neither the statement of driver/cleaner nor any passenger was recorded, hence the case of prosecution is lacking independent corroboration.
6. On the contrary, learned Standing Counsel has maintained that prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, present appeals deserve dismissal.
7. Heard the learned counsel and perused the record. The record reveals that on the fateful day a bus bearing No,BSA-554 coming from Quetta towards Karachi was stopped at Naka Khararri Check post and on checking two bags were found beneath the seats of appellants containing huge quantity of Charas weighing 40-Kgs, hence through recovery memos the same were taken into possession, whereafter samples were drawn from each packets and were dispatched to FSL for analysis. We have seriously observed that the alleged recovery was effected from beneath the seats occupied by the appellants, but neither the recovery memos nor the FIR contains the seat numbers and even know any tag or documentary evidence has come on record connecting the appellants with the said bags. Mere presence of the appellants in the passenger bus or recovery of bags beneath their seats is not enough to fix the responsibility upon them for transporting huge quantity of narcotics rather the prosecution has to prove the physical and conscious possession of the appellants through consistent and confidence inspiring evidence by establishing that actually the appellants were the culprits, who were transporting the alleged recovered contraband.
Reliance in this regard is placed on the case of Jameela v. State PLD 2012 Supreme Court 369, relevant portion is reproduced as under: ... 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 the vehicle unless the prosecution establishes through independent evidence that such passenger was conscious and aware of availability of narcotic substance in the vehicle. We have gone through the record of this case from cover to cover and have found that not even an iota, of evidence had been produced by the prosecution to establish conscious possession on the part of the present appellant."
8. PW-2 being witness of recovery memo stated that during checking the appellants claimed the ownership of the said two bags containing contraband. Such statement of PW-2 is not believable to a prudent mind as if the appellants were having any nexus with the said bags containing huge quantity of contraband, then under these circumstances they would never claim the ownership of the same or at the best they could have kept mum, hence in our view such deposition of recovery witness is neither believable nor appeals to the logic. Hence, the presence of PW-2 at the time of alleged recovery is highly doubtful.
9. It has been established that the alleged recovery was not effected from the conscious or exclusive possession of the appellants being passengers and traveling in a passenger bus, when otherwise in normal routine the buses travelling from Quetta Karachi route issue tickets and seat numbers to each and every passenger and also a tag is attached upon every bag containing the seat number of the passenger. Besides, in the buses/coaches of said route a separate cabin is meant for keeping the luggage. Hence, the recovery of two bags beneath the seats occupied by the appellants is highly doubtful as it could be kept in the luggage cabin and if the appellants were actually smuggling narcotics, they instead of taking risk by keeping the said bags beneath their seats would prefer to keep the same in the luggage cabin. Hence, under these circumstances, the ownership of the bags has neither been proved nor the alleged recovery could be stated to have been recovered from the conscious or exclusive possession of the appellants.
10. It is further astonishing to say that neither the statement of driver, cleaner nor any passenger boarded in the said bus was recorded by the prosecution. The Investigating Officer admitted in his cross-examination that he did not call any of the passengers, driver and cleaner of the bus to be associated as the witness of the recovery of the contraband, whereas several passengers were travelling in the said bus, but the Investigating Officer did not call any passenger, driver or cleaner to attest the recovery witness. It has further transpired from record that notice under section 23 of the C.N.S. Act was issued to the driver of the bus, but neither he was made a prosecution witness during investigation nor he has been produced at the trial. Though section 25 of C.N.S. Act has excluded section 103, Cr.P.C., yet great care and caution is to be taken for association of a private witnesses if available at the time of arrest and recovery. At least the Driver or Cleaner of the vehicle should have been associated with the process of recovery of the alleged contraband narcotic from the possession of the appellants, which otherwise was fatal to the case of the prosecution. Reliance in this regard is placed on the case of the State through Advocate-General N. W.F.P. v. Gulla, 2011 PCr.LJ 696.
11. Another important aspect of the case is that the recovery witness of the alleged contraband namely Naeem Sultan, who appeared as PW-2 has failed to identify the appellants and admitted during his cross examination that it is correct he didn't know who is Sanaullah and who is Hashim, which creates serious doubt in the case of prosecution and it appears that PW-2 was not the witness of recovery at all and also it creates serious doubts with regard to his presence at the time of alleged recovery. Thus, the prosecution has also failed to establish the presence of recovery witness at the time of alleged recovery and it seems that the said witness is a planted witness and due to such reasons he could not explain his presence at the time of alleged recovery. Reliance can be made on 2003 SCM R 1419 wherein it was held by the Hon'ble Court Supreme Court as under: "Tainted piece of evidence cannot furnish corroboration to another piece of tainted evidence.......
Wajtakkar type of witness was always treated to be a chance witness and his presence could be accepted if he/she could establish his/her presence at the place of incident but in the absence of such explanation the prosecution was bound to place on record some strong evidence to corroborate his/her statement ... Evidence of Wajtakkur type of witness could be doubted on number of reasons including his own residence and acquaintance of the witnesses with the accused."
12. So far as the Chemical Examination Report Ex.P/3-C is concerned, suffice to observe here that the instant case has been registered on 29th March, 2015, meaning thereby that the recovery of the alleged contraband was also effected on the said date and the Investigating Officer ought to have sent the samples for analysis within 72 hours to the FSL as required by Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, but perusal of FSL report indicates that the samples were sent to it on 3rd March, 2015 i,e. Much prior to its recovery as well as registration of the case and this fact was also admitted by the Investigating Officer in his cross-examination.
Such glaring contradiction has seriously damaged the case of the prosecution, hence under these circumstances the FSL report Ex.P/3-C has lost its evidentiary value and no implicit reliance could be placed upon such report.
13. The reappraisal of entire prosecution evidence establishes that the prosecution has miserably failed to substantiate the charge against the appellants. The contradiction and discrepancies so pointed out by the learned counsel for the appellants cannot be taken lightly. It is a well F settled principle of law that an accused is entitled to get the benefit of a slightest doubt, whereas in the instant case certain discrepancies, dishonest improvement and doubts are apparent on the face of record, but the trial Court while delivering the impugned judgment has failed to extend the benefits of such doubts in favour of the appellants.
For the above reasons, the appeals are accepted. The impugned judgment dated 22nd April, 2016 passed by the learned Special Judge Control of Narcotic Substances Lasbella at Hub is set aside and the appellants Muhammad Hashim son of Muhammad Saleem and Sanaullah son of Abdul Manan are acquitted of the charge under section 9(c) of the C.N.S. Act 1997. The appellants being in custody, are ordered to be released forthwith if not required in any other case.
Above are the reasons of our short order dated 26th September, 2016.