ISHTIAQ IBRAHIM, J.---Through this single judgment, we propose to dispose of the instant Criminal Appeal filed by appellant Dad Mir son of Lal Mir, as well as the connected Criminal Appeal No.272-P/ 2018 filed by appellant namely Gohar Ali son of Sultan Mir, as in both the appeals, they have impugned the judgment dated 18.08.2015 passed by the learned Sessions Judge/Judge Special Court (CNSA), Charsadd a, in case FIR No.1113 dated 14.12.2013 under section 9(c) CNSA registered at Police Station Charsadda, District Charsadda, whereby the appellants were convicted under section 9(c) of the CNSA and sentenced to Rigorous Imprisonment for life with fine of Rs.100,000/- each, in default of payment of fine, they shall suffer simple imprisonment for six months each.
Benefit of section 382-B, Cr .P.C. was extended to them.
2. Brief and essential facts of the prose cution case are that on 14.12.2013 Muhammad Ijaz Khan SHO Police Station Charsadda, along with police contingent was on patrol duty, received spy information that huge quantity of narcotics would be smuggled from Peshawar through datsun bearing registration No.B-9582-B-Peshawar ("vehicle"); that on receiving such information, he rushed to Sardaryab Check Post, where he along with Head Constable Police Post Sardaryab and other contingent started surveillance, when at about 20.05 hours the said vehicle emerged from Peshawar side, which was stopped; that on query the driver of the vehicle disclosed his name as Gohar Ali son of Sultan Mir while the front seater disclosed his name as Dad Mir son of Lal Mir; that the vehicle was loaded with marble scrap; that they while deloading the marble scrap from the vehicle recovered 100 packets charas pukhta each packet weighing one KG, that five grams sample from each packet was separated and sealed the samples and the remaining charas into separate parcels. The accused were arrested. The charas and the vehicle were taken into possession vide recovery memo (Ex-PW 2/1). He drafted the murasila (Ex-P A) and sent the same to police station for registration of FIR against the accused.
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 examined as many as three PWs.
Shafiullah Khan Inspector (PW-1), who on receipt of murasila and copy of FIR proceeded to the spot, prepared the site plan at the instance of the complainant and eyewitnesses recorded statements of PWs. He produced the accused before the Court and obtained their police custody vide his application (Ex-PW 1/1), he interrogated the accused, and vide application (Ex-PW 1/3) he sent the samples to the FSL and received report of FSL (Ex-PZ).
After completion of investigation, he handed over the case file to the SHO for submission of challan. Ijaz Khan Inspector (PW-2) is the complainant of present case, who reiterated the same story as mentioned in the Murasila (Ex-P A), and after completion of investig ation, he submitted complete challan against the accused. Pir Amin HC (PW-3) is marginal witness to the recovery memo (Ex-PW 2/1) who is also member of the police party and supported the version of the complainant.
5. On closure of prosecution evidence, statements of the accused under Section 342, Cr.P.C. were recorded wherein they denied the allegations levele d against them. However , they did not opt to be examined on oath or to produce defence evidence. However , in reply to question No.12, appellant Dad Mir stated that; "I am innocent and falsely charged. In fact I belong to Paktiya Afghanistan and having kidney stone problem and came Pakistan as someone told me that some spiritual personality belong to Tangi provide some "Pories Dam Darood" for cure. I came from Jalal Abad at evening time and was waiting for public transport for Tangi in the meanwhile the said datsun came over there where one driver and one co-accused was sitting inside the vehicle, as it was late time they offered me on my request accordingly I had seated in the said vehicle where from Sardaryab Check Post the vehicle was stopped which was loaded, with marble scrape and subsequently the actual driver was let free and I along with the young boy were implicated in the present case. No recovery whatsoever was effected in our presence. I was just implicated in the present case being Afghani. I have no concerned with the vehicle business of actual driver and alleged recovery ."
6. On conclusion of trial, after hearing the learned counsel for the parties and appraising evidence on the file, the learned Sessions Judge/Judge Special Court (CNSA), Charsadda, through the impugned judgment dated 18.08.2015, convicted and sentenced the appellants, as mentioned in the open ing paragraph of the judgment.
Feeling aggrieved from their conviction and sentence, the appellants have filed their respective criminal appeals before this Court.
7. We have heard arguments of the learned counsel for the parties and perused the record with their valuable assistance.
8. No doubt, police witnesses are as good witnesses as anyone else but in case s of narcotics registered under section 9(c) CNSA where life imprisonment or death sentence can be awarded to a person accused of such an offence, the prosecution is duty bound to bring on record consistent, straightforward and clear evidence.
9. From the very inception the case of the prosecution with regard to the separation of samples from the contraband and its weighment is discrepant and in our view the recovery of 100 KGs and the report of the FSL has not been duly proved by the prosecution for the reasons that Shafiullah Khan Inspector (PW-1) in his examination in chief almost supported the prosecutio n case, but in cross examination regarding quantity of the contraband stated that; "According to the statements of the witnesses after extraction of the certain quantity for the purpose of the samples, the weighment of the rest of the stuff is stated to be 9500 grams. The witness volunteered that the same is a clerical mistake. It is correct that before submission of challan in the Court for trial it is being scrutinized at various stages by the competent officials. Any shortcoming in the record is being objected to by the office of the District Public prosecution The weight of remaining quantity of the contraband stuff has not been mentioned in the recovery memo."
Ijaz Khan Inspector (PW-2) is complainant of the instant case. He supported the contents of the murasila (Ex-P A) and other proceedings carried out by him while seizing the vehicle in question. However , regarding the separation of samples from the contraband, he in his cross examination stated that; "We did not open all the packets for separation of samples. Each packet contained one slab/kake. Since sufficient time has been lapsed when the contraband stuff was seized therefore, I could not remember that any packet may contain more than one slab or kake.
Pir Amin HC (PW-3) who is marginal witness to the recovery memo (Ex-PW 2/1), who in his examination in chief supported the version of the complainant, but in his cross examination regarding the remaining stuf f he stated that; ##TS ## "In my statement the weighment of the remaining stuf f has IF been mentioned as 9500 grams."
10. In the present case, Muhammad Ijaz Khan Inspector (PW-2) is the complai nant/seizing officer of the case, Shafiullah Khan Inspector (PW-1) conducted investigation in the case, and Pir Amin HC (PW-3) is marginal witness to the recovery memo (Ex. PW 2/1), their statements are consistent and straightforward which are further endorsed by the report of the FSL, thus case against appellant Gohar Ali, the driver of the vehicle in question, is proved beyond any shadow of doubt, for the G reason that was arrested on the spot and the recovery was made from the vehicle driven by him.
11. Under the circumstances, the trial Court has rightly convicted the appellant Gohar Ali, however , with regard to the controversy as to whether the contraband was 100 Kg or 9500 grams and statement of the complainant regarding separation of samples makes the case of mitigating circumstance. Thus by maintaining the conviction, the sentence is reduced from imprisonme nt for life to 7 years with fine of Rs.100,00 0/- or in default thereof to suffer further six months' SI. The benefit of section 382-B, Cr .P.C. extended to him shall remain intact.
12: So far as the appeal bearing No. Criminal Appeal 496-P/2015 filed by Dad Mir is concerned, the prosecution has failed to prove any link of the appellant with that of Gohar Ali, as he is resident of Afghanistan while accused Gohar Ali is resident of Bar Qambar Khel, Maidan Killi, Bara. The appellant Dad Mir while recording his statement under section 342, Cr.P.C. in reply to Question No.12 has replied that he has waiting for public transport for Tangi, in the meanwhile the said datsun came over there where one driver and one co-accused was sitting inside the vehicle, as it was late time they offered him lift on his request, and accordingly he had seated in the said vehicle.
No recovery was effected from his direct possession and the contrabands were recovered from beneath the marble pieces loaded in the vehicle. The prosecution has failed to establish that the appellant was in knowledge of the narcotics or the same was exposed to him. If the contraband was lying open within the view of the appellant/accused Dad Mir or he was in knowledge of the placement of same beneath the marble pieces loaded in the vehicle, then the situation would have been different. Prosecution had simply proved presence of accused in vehicle and mere presence of accused in vehicle would not involve him in the case. The prosecution has failed to prove its case against the appellant. In a similar situation, in case of Qaisarullah v. State (2009 SCMR 579), the august Supreme Court of Pakistan while examining a similar question observed as under:- "The prosecution failed to prove through convincing evidence that Abdul Wall had exclusive knowledge of the concealment of narcotics in a car , which neither belonged nor was being driven by him."
Keeping in view the above, it is clear that the appellant had taken lift and seated in the vehicle in question, therefore, we accept this appeal, set aside' the impugned judgment dated 18.08.2015 to the extent of appellant Dad Mir and acquit him of the charge under section 9(c) CNSA, 1997 levelled again st him. He shall be set at liberty forthwith if not required in any other case.
Above are the reasons of our short order of even date.