ISHTIAQ IBRAHIM, J. Abdul Baqi son of Khan Muhammad and Juma Din son of Musa Khan, the appellants, through the instant Criminal Appeal have called into question the judgment dated 06.10.2017 rendered by learned Additional Sessions Judge-III/Judge Special Court, Kohat, vide which the appellants were convicted under section 9(c), CNSA and sentenced to suffer life Imprisonment and to pay fine of Rs.200,000/- each or in default of payment of fine to further undergo simple imprisonment for a period of six months each. Benefit of section-382-B, Cr.P.C. was extended to the appellants. However , the appellants were acquitted under sections 420/468/471, P .P.C.
2. Brief and essential facts of the prose cution case are that on 04.02.2015 Nazir Khan Inspector SHO Police Station Cantt., Kohat, (PW-3) had spy information that huge quantity of heroin would be smuggled through Pickup bearing registration No.P AB-830-Quetta ("Vehicle ") via Kohat; that he along with Mashahid Ali ASI (PW-2), Muhammad Ali No.1189, Muhammad Arif No.979, Kamran No.1120, Khan Wali No.71, Azmat Ali No.767 along with other police contingent put Nakabandi at Hangu Kohat Main Road near Zawaki Banda; that at 1800 hours the said vehicle came from Hangu side, which was stopped for the purpose of checking, the floor of the vehicle was found double; that on query the driver of the vehicle disclosed his name as Abdul Baqi son of Khan Muhammad while the person sitting in front seat disclosed his name as Juma Din son of Muhammad Musa; that the vehicle and the A accused were taken to Police Station, where the floor of the vehicle was opened through electric cutter , recovered 54 packets of heroin from its secret cavities each packet weighing 1000 grams; that sample of one gram heroin was separated from each packet for chemical analysis, sealed into parcels Nos.1 to 54 while the remaining quantity of heroin was sealed into parcel No.55 and affixed three seals of AF monogram on each parcel; that the contraband heroin along with the vehicle were taken into possession vide recovery memo and the accused were arrested and case FIR (EX.P A) was registered against the accused. The investigation was entrusted to the KBI staffs.
3. On completion of investigation, challan was put in Court against the appellants. Formal charge was framed against them to which they did not plead guilty and claimed trial.
4. In order to bring home charge against the appellants, the prosecution in support of its case examined as many as five PWs while statement of Zahoor Islam Assistant Chemical Examiner , FSL, Peshawar , was recorded as (CW- 01). Ayub Janan MHC (PW-1) deposed that the case property consisting of 55 parcels was handed over to him by the SHO on 4.2.2015, parcels Nos. 1 to 54 were handed over to the I.O. while parcel No.55 was deposited in the Malkhana of the P.S. He further deposed that registration book of the vehicle and two mobile sets of the accused were handed over to the 10 in the Police Station. Mushahid Ali, ASI (PW-2) deposed that on 4.2.2015 he was present with the SHO at the Nakbandi and supported the prosecution version mentioned in the FIR. He is also marginal witness to the recovery memo (EX.PC) vide which the complainant separated sample of 01 gram heroin from each packet for chemical analysis, prepared parcels Nos.1 to 54 while the remaining quantity of heroin EXP-1 was sealed into parcel No.55 and took into possession along with the vehicle. Nazir Khan, the complainant (PW- 03) reiterated the same facts which he has mentioned in the FIR (EX.P A). Amanullah SI (PW-04) deposed that after registration of FIR, the investigation was entrusted to him. He proceeded to the spot, prepared site plan (EX.PB) at the pointation of Nazir Khan SHO, recorded statements of PWs under section 161, Cr.P.C., the Muharrir of the Police Station handed over to him the mobile sets ExP-4 and ExP-5, one registration copy of the vehicle in question Ex.P-6, which he taken into possession vide recovery memo (EX.PW -4/1). He also prepared another site plan of the spot (EX.PB/1). Vide application (EX.PW -4/2) he produced the accused before the Court and obtained two days police custody of the accused, on pointation of the accused, he prepared pointation memos (EX.PW -4/3 and EX.PW -4/4) respectively . He recorded statements of the accused under section 161, Cr.P.C. He also drafted application (EX.PW -4/7) for FSL and received its report (EX.PZ) in positive. The vehicle in question was examined by the FSL vide report (EX.PZ/1) and the vehicle was found fake one. After comple tion of investigation, he handed over the case file to the SHO for submission of challan. Ulfat Hussain ASI (PW-5) who is marginal witness to the recovery memo (EX.PW -4/1) vide which the I.O. recovered one mobile phone NOKIA from possession of accused Abdul Baqi having two SIMs while one mobile phone was recovered from possession of accused Jumma Din having two SIMs ExP-5. He is also witness to pointation memo (EX.PW -4/4) vide which the accused pointed out the place of occurrence. Zahoor Islam, Assistant Chemical Examiner , FSL, Peshawar , was examined as Court Witness-01 and stated that the laborat ory report (EX.PZ) pertains to their laboratory . He further stated that Muhammad Zeb Khan, Chemical Examiner , retired on 31.03.2017 while Assistant Chemical Examiner and Chemical Expert are also retired and that Chemical Expert Mustaqeem Shah has gone to perform Hajj. He further stated that thin layers chromatography test was conducted for confirmation of presence of heroin duly signed by Chemical Examiner and Chemical Expert.
5. On closure of prosecution evidence, statements of the accused under section 342, Cr.P.C. were recorded wherein they denied the allegations levelled against them. However , they did not opt to be examined on oath or to produce defence evidence.
6. On conclusion of trial, after hearing the learned counsel for the parties and appraising evidence on the file, the learned Additional Sessions Judge-III/Judge Special Court, Kohat, through the impugned judgment dated 06.10.2017, convicted and sentenced the appellants, as mentioned in the open ing paragraph of the judgment.
Feeling aggrieved from their conviction and sentences, the appellants have filed the instant appeal before this Court.
7. We have heard arguments of the learned counsel for the parties and perused the record with their valuable assistance.
8. First we have to discuss the case of appellant Abdul Baqi (the driver of the vehicle). Record depicts that statements of Nazir Khan, SHO (PW-3) who is complainant of the case and seizing officer, Mushahid Ali ASI (PW- 2) who is marginal witness to the recovery memo (EX.PW -2/1) and member of the police party , Ayub Janan MHC (PW-01) who kept parcel No.55 containing the remaining quantity of heroin in Malkhana of the Police Station while parcels Nos. 1 to 54 containing samples, registration book of the vehicle and two mobile hand sets of the accused were handed over to the I.O. in the P.S. and Amanullah Sub-Inspector (PW-04) who conducted the investigation in the case are consistent on all material aspects and no distinct discrepancy was noticed to mar the credibility of their testimony and they were subjected to lengthy cross-examination by the defence but their testimony was not shattered. From the evidence, the mode and manner of arrest of appellant leading to recovery of narcotic have been proved. Instead of contradicting each other , the prosecution evidence is unanimous with regard to the arrest of the accused, number of secret cavities, the taking of vehicle to the police station, where the secret cavities were cut through electric cutter and 54 packets of heroin were recovered from the same and to that extent the evidence of the prosecution is also confidence inspiring. From the very inception the case of the prosecution is that three seals of AF monogram was affixed on each parcel, and when the case property was opened before the trial Court, the Court also found signs of three seals of AF monogram available on Ex P-1. Section 29 of the CNSA provides that presumption is of possession of illicit articles unless person prosecuted rebuts such presumption. In this case, the appellant Abdul Baqi, was driver of the vehicle, while appellant Juma Din was sitting on the front seat of the vehicle, have been arrested while driving the vehicle and huge quantity of 54 K.Gs heroin was recovered from secret cavities of the vehicle. Appellant Abdul Baqi being driver of the vehicle, was responsible whatever was lying in the same, he could not be absolved of his responsibility of the contraband recovered from E the vehicle in question. Reliance is placed upon the judgment rendered in Ghulam Qadir v. The State (PLD 2006 Supreme Court 61).
9. Perusal of the FSL report (EX.PZ) reveals that fifty four parcels of samples having three seals of AF monogram on each parcel were received in the FSL and after examination the samples were found to be that of heroin. The overwhelming evidence led by the prosecution shows that the case has been proved against the appellant Abdul Baqi beyond any reasonable shadow of doubt and slight variations or shortcomings in the case would not be sufficient enough to discard the testimony of a witnesses most particularly the complainant and the marginal witness to the recovery memo. The heroin recovered was 54000 grams and that crossed the thrash hold provided in proviso to section 9(c), CNSA. The relevant proviso to section 9, CNSA is reproduced for ready reference:- "(c) death or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees, if the quantity of narcotic drug psychotropic substance or controlled substance exceeds the limits specified in clause (b).
Provided that if quantity exceeds ten kilogram the punishment shall not be less than imprisonment for life.
Keeping in view the aforementioned provision, the appellant Abdul. Baqi has rightly been awarded life imprisonment.
10. For the foregoing discussion, we are of the view, that the prosecution has successfully proved its case against appellant Abdul Baqi (driver of the vehicle) beyond any shadow of doubt. We find no illegality or infirmity in the impugned judgment to warrant interference by this Court therewith.
11. As far as case against appellant Juma Din, who was sitting on the front seat of the vehicle is concerned, perusal of FIR (EX.P A) and recovery memo (EX.PC) would show that nothing incriminating was recovered from personal possession of the appellant Juma Din, who was alleged sitting on the front seat of the vehicle, but nothing was brought on record to show whether he was having conscious knowledge of the contraband concealed in the secret cavities of the vehicle or he was just a front seater and it was the duty of the prosecution to prove the same through some cogent evidence that he was fully involved and was having the conscious knowledge of the contraband recovered from the secret cavities of the vehicle. For safe administration of criminal justice the Court is to appraise the evidence brought on record minutely , and if a single doubt arises there from, the benefit of which must be extended to the accused. It seems that the trial Court was influenced by the huge quantity involved in the case and extended every possible benefit to the prosecution, in contrast to the true import of section 29 of CNSA.
In such like cases, for the safe administration of criminal justice, law mandates that Courts are to be conscious of not the quantity of contraband, but the quality of evidence produced in the Court for reaching a correct conclusion and just decision of the case. In this respect we are fortified by the judgment of Hon'ble Supreme Court rendered in Shahzada's case (2010 SCMR 841 ), wherein it was held that; "We have heard the learned counsel for the parties and have perused the record of this case very carefully . As regards the appellants, who were simply sitting in the car, their case is distinguishable from the case of the Driver and for involvement of such persons the prosecution is required to lead some evidence to show that they had knowledge of the property lying in the car or they had abetted or conspired with the Driver in the commission of the crime. No such evidence has been led by the prosecution to prove the above aspects of the case so as to make the appellants responsible for the commis sion of the crime along wills the Driver . If the property would have been lying open within the view of the appella nts or they knew the placement of the property then the situation would have been different. In such a situation, the appellants were required to explain their position, as required under Article 122 of Qanun-e-Shahadat Order , 1984 and without such explanation their involvement in the case would have been proved. As the property was not within their view and they had no knowledge of the placement of the property , therefore, they cannot be held responsible and in joint possession of the property with the Driver . As such the case of the prosecution against the appellants is highly doubtful".
Keeping in view the above, it is clear that the appellant Juma Din was sitting on the front seat in the vehicle in question, therefore, we accept this appeal, set aside the impugned judgment dated 06.10.2017 to the extent of appellant Juma Din and acquit him of the charge under section-9(c), CNSA, 1997 levelled against him. He shall be set at liberty forthwith if not required in any other case.
Above are the detailed reasons of our short order of even date.