1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of a judgment of a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Seat, in Criminal Revision No. 454 of 1967,. Whereby the High Court refused to interfere with the conviction of the appellant for an offence under section 61 of the Excise Act of 1914.
2. The appellant, who -is a taxi driver, was ambushed on a metalled road on the eastern Bund of river Ravi near village Malipur, Lahore, at about 2-00 a.m. Of the 17th of July 1965, driving taxi No. LR-4731, in which there were- two passengers carrying a package with them.
3. On information received by the Commander of the Sutlej Rangers, Lahore, a raiding party was organised and the taxi No. LR-4731, which was found coming from the Ravi bridge side, was stopped. Al soon as the taxi stopped the passengers ran away. The search of the taxi led to the discovery of a package containing four seers of charas. The appellant was arrested and challaned.
4. The appellant pleaded not guilty to the charge and stated that he took the two passengers in his taxi from the Railway Station. The passengers asked him to go to Sanda but near the Secretariat he was directed to go from the side of Ravi Road. He drove the taxi along the Ravi Road and while he was going tin the Bund one of the passengers got down to make enquiries and after five minutes the Sutlej Rangers challenged the taxi to stop. He stopped and got down but the two passengers ran away leaving the bundle in the back seat of the taxi. He also produced six witnesses in defence who deposed to his good conduct.
5. The prosecution case was sought to be proved by the testimony of the Rangers who had stopped the taxi and recovered the charas. They stated that on their signal the taxi stopped but two men got down from the taxi and ran away. They tried to catch them but they opened fire. The fire was returned but they managed to escape. The taxi was searched and from the rear seat of the taxi four seers of chdras were recovered. The taxi. Driver was asked to name his companions. He could not do so. The charas was found wrapped up in paper and cloth. No witness stated that the appellant made any attempt to escape. In fact, according to Ranger Fazal Dad (P. W. 3), the appellant remained standing by the taxi and he told them that the passengers had hired the taxi at the Ration but he did not know that they were carrying charas nor did he know who they were.
6. Muhammad Ayub (P. W. 4) stated that the taxi stopped by itself and the appellant when questioned stated that he had no previous knowledge of the fact that these passengers were carrying charas.
7. All the witnesses stated that the appellant also told them that he picked up his passengers from the Railway Station, but he did not mention the name of the Railway Station. In his own statement under section 342, Cr. P. C. The appellant stated as follows :- "I picked two passengers from the Railway Station at about 8-00 p. m. The passengers asked me near the Secretariat to proceed via Ravi Road, as they had some business in the way. I took the taxi to Bund Road from Ravi Road. I stopped the taxi near the Tubewell at the request of the passengers.
8. One of them got down to enquire the address. After five minutes the men of the Army encircled us.
9. One passenger was sitting on the rear seat and the other on the front of the taxi. The passenger sitting on the rear seat got down first. After getting me down the Army men began to search the taxi and the second man too ran away. The Army men recovered four seers of charas from the rear seat. I did not know that articles were in possession of the passengers sitting behind. I was involved in this case."
10. On this evidence the Courts below have taken the view that it is inconceivable that the appellant was unaware of the charas being placed inside his taxi by the two passengers in the rear seat, particularly, since the taxi was stopped at 2-00 p. m. In the morning travelling along a road frequented by smugglers. The High Court has gone further and held that "it is not possible to believe that a driver, who carries two passengers in a taxi late in the night and goes by river Bund, will have no knowledge if those passengers had kept charas in his taxi, specially when it was secured from the back seat of the car."
11. Leave was granted in this case to consider whether the finding of the Courts below that the taxi- driver had knowledge of the contents of the bundle carried by his passengers, was based on any evidence at all.
12. Learned counsel appearing in support of this appeal has contended that the evidence has not established that the appellant was in possession of the charas found in his taxi. There can be no legal presumption that because he is the driver of the taxi he must be deemed to have knowledge of everything being carried by passengers travelling in his taxi.
13. It is an essential ingredient of every criminal act that there must be a mens rea or at least a guilty knowledge and unless this ingredient is established no conviction can take place. This is not a case of absolute liability nor can we accept the proposition propounded by the High Court that a taxi- driver must necessarily be fixed with the knowledge of the contents of packages carried by his passengers merely because the passengers had been picked up at an odd hour of the night and were being transported by car along a little frequented road.
14. There is no duty cast on any taxi-driver to search his passengers if they happen to engage his taxi at a late hour of the night, nor is a taxi-driver bound to enquire from passengers engaging his taxi at such late hours as to the nature of the baggage being carried by them. It is preposterous to suggest that merely because a taxi-driver has picked up a late fare and is carrying him along a road which is not much frequented he must have some guilty knowledge.
15. It was the duty of the prosecution, if they wanted to rope in the taxi-driver, to prove by some cogent evidence that the taxi driver was an associate of the smugglers or that he was aware that his passengers were smugglers carrying charas or some of the contraband item. In the absence of such evidence we are unable to agree with the Courts below that any case had been made out against the appellant. The mere finding of the charas in the back seat of his taxi was, by no means, sufficient to make out such a case.
16. The learned Additional Advocate-General appearing on be half of the State sought to contend that since the appellant did not disclose the name of the station at which he had picked up his pas-- sengers, he must be held to be guilty of concealment of a material fact having a bearing on the question of his guilty knowledge. But there is no evidence that any body asked him to give the name of the railway station at which he had picked up his passengers. If no one asked him that question then how can he be said to have concealed that fact. The criticism, therefore, is not justified. Normally, a taxi-driver, of Lahore when he mentions "the railway station" would be referring to the Lahore Railway Station and not to the Badami Bagh or the Cantonment Railway Station.
17. Learned' Additional Advocate-General next contended that charas would give out an odour and that odour should at least have put him on suspicion as to the nature of the article being carried by his passengers. This contention, of course, does no take into account the evidence of one of the prosecution witnesses himself that the charas was packed in paper and cloth. There is no evidence that in spite of this packing the charas did give out any kind of odour. We cannot, therefore, act on the basis of mere conjectures. The Courts must convict on the basis o evidence and not on hypothetical assumptions.
18. We have no manner of doubt that the conviction of the appellant in the present case was based on no evidence at all and cannot be sustained. This appeal is, accordingly, allowed and the appellant is acquitted. He will now be discharged from his bail bond.