This appeal and the suo motu notice for enhancement of sentence in this case arise out a judgment dated 16-2-1991, passed by the learned Sessions Judge, Swat at Saidu Sharif, whereby the learned Judge has convicted and sentenced the appellant under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) to suffer R.I. For two years, five stripes and to pay a fine of Rs.500 or in default thereof to further undergo R.I. For two months.
The conviction is on the allegation that he was found in possession of large quantity of narcotics while travelling in a Suzuki on 7-8-1986 at 7-00 p.m.
2. Briefly the facts of the case are as under:-- "A party of F.I.A. Inspectors and constables was on patrol duty for checking the narcotics at Mingora-Alpuri Road, within the limits of Police Station Alpuri. At about 7-00 p.m. They noticed a Suzuki No.2312/KAV coming from Mingora side. The suzuki was stopped by the police party for checking. At the time of checking the suzuki was being driven by co-accused Gul Shahzada son of Said Rashid. The appellant was sitting alongwith the driver on the front seat. The two occupants were brought down and the suzuki was searched by the police. The search proved to be rewarding for the police party. A plastic bag stuffed with one kilogram of opium, 600 grams of Charas, 80 grams of heroin and 90 M.C. Tablets was found lying concealed beneath the front seat. The two occupants of the suzuki were questioned by the police and according to Syed Zamin Shah, A.S.I.
The present appellant claimed to be the owner of the bag. The police party seized the bag, vide recovery memo. (Exh.P.R./1) and prepared a Murasila (Exh.P.A./1) which was sent to the Police Station Alpuri where a formal F.I.R. Was recorded at 7-00 p.m. The same day."
3. The prosecution has examined only four witnesses. P.W.2 and P.W.3 are formal witnesses, the former having merely placed on the record the report of the Chemical Examiner (Exh. P.Z.) and latter was the S.H.O. In those days and he has submitted the challan.
4. The material witnesses on which the decision of the case would turn are P.W.1 Ihsanullah, H.C.
And P.W.4 Syed Zamin Shah A.S.I.
5. P.W.4, who is the leading prosecution witness, has stated that on 7-8-1986 he alongwith the police constables was on Gusht duty checking vehicles near Chakat. At about 7-00 p.m. a suzuki came from Mingora side which was stopped for checking purposes. He further stated that `during the checking we recovered 1,000 grams opium, Exh .P.1, 600 grams Charas Exh.P.2, 80 grams heroin Exh.P.3, 90 M.C. Tablets Exh.P.4 from underneath the front seat of the suzuki situated adjacent to the driver. In the suzuki only two persons i.e. One driver and other Sher Zada Khan accused were travelling. On our inquiry Sher Zada accused told us that it was his property. Driver also disclosed his name as Gul Shahzada son of Said Rashid resident of Chimbar Shang. The accused were arrested and I took into my possession the case property in the presence of the marginal witnesses. I recorded the statements of marginal witnesses on the spot'.
6. The other witness P.W.1 Ihsanullah, H.C. Has substantially corroborated the above statement and stated that `I am marginal witness to the recovery memo. Exh. P.R. Vide which the Investigating Officer took into possession 1,000 grams opium, 600 grmas Charas, 80 grams heroin and 90 M.C.
Tablets duly recovered from the front seat of the suzuki van. In the said van Slier Zada and the driver were present. Accused Sher Zada owned the same to be his belongings. The aforementioned articles were taken into possession by the Investigating Officer and the accused were arrested'.
7. The above is the total evidence in the case. The appellant has pleaded not guilty and denied the charge. In answer to the last question he has stated as under:-- "The P.Ws. Are interested. A.S.I. Said Zamin Shah had strained relations with me and he has concocted this story against me. On the day of occurrence he also altercated with me and fixed wrong responsibility on my shoulder and thus I was falsely charged."
He did not examine himself on oath under section 340(2), Cr.P.C. Nor did he produce any witness in the defence.
8. The learned Judge after hearing the total prosecution evidence, which is the statements of the two witnesses and the statement of the accused, acquitted co-accused Gul Shahzada. The learned Judge, however, convicted the present appellant.
9. Malik Rab Nawaz Noon, the learned counsel for the appellant addressed me on the merits of the case and attacked the conviction on the ground that in the Murasila (Exh. P.A./I) no mention has been made that the samples were taken or sealed nor indeed this fact is mentioned .In the recovery memo. He further referred to the statement of P.W.1 Ihsanullah. H.C. Who has stated in his cross-- examination that `I do not know whether the opium etc. Were scaled into parcel in the police station or not. No sample was separated by the Thanedar in my presence on the spot'. The arguments of the learned counsel for the appellant did not impress me at all because they are on unimportant formalities. If the recovery was accepted but a plea that the stuff is something other than narcotic was raised such an argument could have some sense. In a number of cases it has been observed that where the recovery itself is denied it does not lie in the mouth of the accused to make a mountain out of a mole by pointing to lapses or irregularities in the handling of the samples at various stages.
10. The fact, however, remains that for basing a conviction there must be positive evidence to show that the accused was in conscious physical possession of the contraband articles. In the present case, Gul Shahzada, who was driver and had control of the vehicle and against whom a presumption could be raised that he was conscious of the presence of material being carted on the Suzuki has been acquitted by the learned Judge. The appellant has been convicted merely because the narcotic was found concealed beneath the seat, which happened to be occupied by the appellant. But this is not enough unless it is shown that the material belonged to him and that he was in conscious possession of the material. In Court he denied its ownership, nay the very existence of the material at the relevant time. Co-accused Gul Shahzada has also denied the presence of any such material. We are now left with the so-called confession or admission of the present accused and which would have gone a long way to confirm his involvement in the affair had this piece of evidence been admissible in law. Unfortunately this is a statement attributed to him by tile Police Officer and any admission or confession made before a Police Officer is not admissible in evidence. Article 38 of the Qanun-e-Shahadat, 1984, which has come to the rescue of the accused, runs as under:-- "No confession made to a Police. Officer shall be proved as against a person accused of any offence."
If this `confession' is excluded front consideration it becomes highly debatable which of the two occupants had any connection with the narcotic, if at all it was recovered from the su4uki. When questioned to explain, Malik. Hamid Saeed, Additional Advocate-General, N.W.F.P., could not give any answer. He failed tot link up the appellant with the material recovered.
11. It is a pity that due to inexperience or inefficiency of the, investigating agency such crimes, which apparently look very serious go unpunished, because of the lapses and improper investigation. For want of any link of the material with the appellant and the other co-accused having been acquitted, it is difficult to sustain the conviction of the appellant. Giving him benefit of doubt he must be acquitted and the appeal must succeed. The appeal is allowed, the conviction and sentences are set aside and the appellant should be released forthwith if not wanted in any other case.
12. As a consequence of acceptance of this appeal the suo motu notice for enhancement of sentence is discharged.
13. Before parting with the case notice must be taken of the vehicle in which the contraband material was found. The learned Sessions Judge has not mentioned anything about the vehicle. In my opinion the case is fully covered by Article 14 of the Order. The recovery has been proved in this case, but due to the fact that doubt has been created about the ownership of the narcotic between the two occupants, none has been convicted. The vehicle, however, remains liable to be confiscated like other material, because it is the requirement of Article 14*** of the order.
[14. In any case in which an offence has been committed under this Order, the intoxicant, still, utensil, implement or apparatus in respect or by means of which the offence has been committed shall be liable to confiscation alongwith the receptacles, packages, coverings, animals, vessels, carts or other vehicles, used to hold or carry the same]