KAMAL MUSTAFA BOKHARY, J.--- This is an appeal by Itbar Khan son of Ghulam Nabi, resident of Sakhakot, Swat, from the order, dated 10-9-1988, passed by the Sessions Judge, Swat who convicting him of the charges under Articles 3 and 4 of the Prohibition (Enforcement of Hadd)
Order, 1979 for transporting and possession of 8 killograms of heroin, sentenced him to undergo rigorous imprisonment for 8 years, to whipping numbering ten stripes and to a fine of Rs.8,000 or in default of its payment to further suffer rigorous imprisonment for two years. His co-accused, Shah Zaman, was acquitted of the same charges.
2. Yousaf A.I, Investigating Head Constable, with police staff was on duty at Check Post Landaki, on 5-2-1988, when a motor-car registration No.RIL-3384 reached there from Malakand agency. The car was searched and two plastic bags under the front seat and six plastic bags concealed in rear doors of the car were recovered. It contained eight killograms of heroin in all. One gram heroin from each of the eight bags was separated and sealed into eight sample parcels. The remaining quantity was also sealed into parcel.. The appellant was apprehended and the heroin as well as the car were taken into possession. On the written report sent by Yousaf A.I, formal first information report was registered at Police Station Ghalegai on the same day at 18-30 hours. After investigation the appellant and his co-accused were challaned in Court.
3. At the trial, prosecution proved recovery of heroin from under the front seat of the car and from two rear doors of the car by examining Ba---Rehman, (P.W.1), Foot Constable, and Yousaf A.I - (P.W.21, Head Constable of the Check Post. Both of them deposed that two bags from under the front seat and six bags concealed in the two rear doors of car occupied by the appellant and driven by Shah Zaman were recovered. After search when weighed each bag had one killogram and the total quantity was eight killograms of heroin. Munir Ahmad Khan (P.W.4), Magistrate at Swat, deposed that appellant was produced before him, on 9-2-1988, for recording his confessional statement, After observing all the legal formalities he had recorded confessional statement of appellant and also of Shah Zaman, acquitted accused. The report, Exh.P.E. Of the Chemical Examiner was tendered in evidence which disclosed that the eight sample parcels sent for analysis contained heroin.
4. The appellant did not admit the recovery of eight killograms of heroin from different parts of the car. He stated that he made no confession and the same was extracted from him through third degree methods. According to him the prosecution witnesses had falsely deposed against him.
The appellant also stated that he had only hired the car and had no control over it. He was neither the driver nor owner of the car and did not know driving car. No recovery was effected in his presence. In reply to the question why he was sitting on front seat of Car No.RIL-3384 driven by Shah Zaman which was intercepted at Landaki Check Post resulting in recovery of eight killograms of heroin from it, the appellant stated as follows:- "I had some relations in District Swat. I was sitting in my shop when I got the information about the illness of my sister residing in Swat. I hired a motor car not knowing its number and settled the fare and proceeded to Swat. At Landaki Check Post the motor car was stopped and I went to make water in the nearby fields and when I came back on the road side the police took me to the said police post. In my presence the motor car was not searched nor any recovery was made from the same."
He did not appear as his own witness in disproof of allegations against him nor did he lead any evidence in his defence.
S. The trial Court acquitted his co-accused, Shah Zaman, driver of the car, because of admission of Ba-Rehman, P.W., in cross-examination that he had heard the driver saying that he was defrauded by his co-accused. Yousaf A.I, recovery witness, also admitted that at the time of arrest Shah Zaman, driver o1 the car, told that the appellant had defrauded him and he was kept in ignorance about the alleged heroin. Shah Zaman admitted recovery of eight killogram heroin from the car but had stated in his confessional statement that he had no concern or knowledge about it. He repeated the same plea at the trial. The appellant alone was held responsible for transporting heroin in the car and for its possession.
6. It was argued before us that recovery of heroin from the car was not proved by any independent corroboration or any person from the locality. It was contended that appellant did not admit the guilt in his confessional statement which cannot form basis for his conviction. It was also urged for the appellant that the positive report of Chemical Examiner was not put to the appellant when examined under section 342, Cr.P.C., and there was no proof on record that the article recovered from the car was heroin.
7. We were taken through the evidence in this case and have perused it with the assistance of the learned counsel for the appellant.
8. The learned trial Judge found that in the confessional statement appellant did not deny recovery of heroin from the motor-car in which he was sitting at the time recovery was effected. It was also found that the recovery of heroin otherwise had been proved by the ocular evidence and report of Chemical Examiner. Shah Zaman driver of the car was acquitted because he had no knowledge of the heroin in the car. It appears that the appellant was convicted for transporting heroin in the car which had been hired by him on his confessional statement.
9. From the perusal of evidence it transpires that eight killograms of heroin was undoubtedly recovered from the car bearing registration No.RIL-3384. The presence of appellant in that car at the time of recovery is also not disputed. The heroin was found concealed undo: upholstery of the front seat of the car and in its two rear doors. The prosecution led no evidence to prove that appellant had knowledge of the existence of heroin in the car. It was also stated by him in his A confessional statement that he was travelling in the car to Mangora on the instruction of Murad Khan who was stated to be following him in another car, registration No.RIC-850 at the time of recovery. No investigation was made against Murad Khan. The confessional statement was retracted at the trial. It is exculpatory. It cannot form basis for conviction of appellant. In law knowledge of accused is necessary for conviction. The consistent view of Courts is that accuses must be conscious that he is transporting incriminating article. It cannot be presumed that a person travelling in car has knowledge of the contraband goods when the same is concealed in it.
It is the owner or driver of car who has control over body of the car and not the passenger travelling in it. The prosecution led no evidence to prove that appellant knew that heroin was concealed under the seat and in the doors of taxi car hired by him. There is no material on record for drawing inference that appellant was connected with the heroin recovered in the case. The claim of acquitted accused, Shah Zaman, car driver, that he had been defrauded by the appellant cannot form basis for conviction of the appellant. Shah Zaman was an accomplice or an accused whose testimony cannot be taken into consideration for convicting his co accused. It appears that police witnesses, Ba-Rehman, Constable and Yousaf A.I, Head Constable made concessions in favour of Shah Zaman. On the evidence a case of benefit of doubt is made out against the appellant and we consider it unsafe in the administration of criminal justice to maintain conviction of appellant.
10. In view of the above, the appeal is allowed, conviction and sentences of the appellant are set aside and he is acquitted of the charges. He shall be set at liberty forthwith if not required in any other case.