' IJAZ-UL-HASSAN, J.--- Mushtaq son of Jehangir, presently residing in Quarter No,G-137, Main Colony Tarbela Dam, appellant herein, and Muhammad Arif son of Muhammad Zaman also resident of the same colony, were tried by the learned Sessions Judge/Judge, Special Court, Swabi, on a charge under sections 7/9 of the Control of Narcotic Substances Act, 1997 read with Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. Vide his judgment, dated 24-5-2001 having been found guilty, they were convicted under section 9 of the aforesaid Act and sentenced to suffer 10 years' R.I. Each and fine of Rs,50,000 or in default thereof to undergo further R.I. For 2 years. Benefit of section 382-B, Cr.P.C. Was also extended to them.
2. Being aggrieved by and dissatisfied with the conviction and sentence, Mushtaq has preferred instant appeal, which is before us for consideration.
3. Brief facts relevant for the purpose of this appeal are that Muhammad Sadiq Khan P.W.2 the then S.H.O. Police Station Topi was on a usual Gashe on 15-5-1999 near Gala Rest House, Topi when he received an information that huge quantity of contraband would be smuggled to Punjab in a Suzuki van from village Zarobi, Swabi. Pursuant to this information, the S.H.O. Constituted a police party and conducted Nakabandi' near a place Mausooma Jabal Wand' at about 17-00 hours. In the meanwhile, a Suzuki van (white colour) with Registration No,9807 R.I.P. Arrived at the spot from Zarobi side. The van was stopped in view of the signal given by the police party. Two persons were found sitting in the vehicle. The man driving the vehicle disclosed his name as Muhammad Arif whereas the man occupying the front seat with the driver introduced himself as Mushtaq (appellant). During search of the vehicle a plastic bag having two packets was found lying near the driver seat. The plastic bags and the baskets were opened and the same were found containing heroin. The heroin was weighed at the spot and its weight was 2000 grams. One gram each was separated from the bulk as sample and sealed into different parcels. A recovery memo.
Duly supported by marginal witnesses was prepared to this effect. The contraband was sent to the F.S.L., Peshawar for analysis and report. Vide report Exh.P.Z. The contraband was found heroin. A Murasila Exh.P.A./1 was drafted and dispatched to the police station where it was incorporated in F.I.R. Exh.P.A. By L.H.C. Sherzaman P.W.4 who was then Moharrir Police Station Topi. The vehicle was taken into custody and resultantly a case was registered against the persons found present in the Suzuki van vide F.I.R. No,498, dated 15-5-1999 Police Station Topi.
4. In order to prove its case, prosecution produced four witnesses in all. S.-I. Muhammad Azim Khan, P.W.1, submitted complete challan against the accused on 13-2-2000. S.H.O. Muhammad Sadiq Khan, P.W.2, intercepted the Suzuki van under reference apprehended the appellant and his friend, recovered heroin weighing 2 kilograms contained in plastic bag, carried out the investigation, recorded statements of some of the witnesses and entrusted the remaining investigation to his successor. A.S.-I. Dad Bahadur P.W.3 is a marginal witness to recovery memo. Exh.P.R. Vide which the Investigating Officer took into its possession one plastic bag containing two plastic bags of heroin weighing 2000 grams. He is also a marginal witness to Exh.P.Z. Vide which a Suzuki carry was taken into possession. L.H.C. Sherzaman P.W.4 incorporated the Murasila Exh.P.A./1 in F.I.R. Exh.P.A.
5. In the examination under section 342, Cr.P.C. The appellant denied each and every allegation put to him. He produced no evidence in defence. In reply to a question that on 15-5-1999, he (Mushtaq) and his co-accused Muhammad Arif were travelling in Suzuki No,9807 R.I.P., On Zarobi Bypass Road when the said vehicle was stopped at 17 hours for checking purposes by a police party on the said road near Jabal Wand the appellant stated that a few hours earlier than my arrest, co-accused Muhammad Arif had taken me from colony for bringing back his vehicle from Zarobi which according to him, had been taken by one Sherinzada on the preceding day when we were returning from village Zarobi, the said Sherinzada also accompanied us and disclosed that he would deboard the vehicle at Topi. When we reached near the spot, there Dad Abrader, A.S.-I.
Alongwith two constables signalled us and we stopped the vehicle and thereafter he took us to the police station without disclosing the reasons for our apprehension. In answer to another question regarding the recovery of the heroin, he stated "nothing was recovered from Suzuki nor any parcel has been made on the spot. Later on it came in our knowledge that some contraband was found from the person of the said Sherinzada at late hours of the night with whom police made understanding and he was let off and instead of him a false case was registered against us and we were made scapegoat in this case".
6. On the assessm ent of evidence, the appellant and co-accused were found guilty and were convicted and sentenced as mentioned above.
7. Mr. Javed A. Khan, Advocate, appeared on behalf of the appellant whereas the State was represented by Sardar Shaukat Hayat, Additional Advocate-General.
8. Learned counsel for the appellant bitterly criticised the impugned judgment and contended that no legal or factual evidence was available against the appellant to show that he had knowledge that the plastic bag lying on the front seat with the driver, was containing heroin powder but in spite of that the appellant was found guilty and convicted and sentenced. The learned counsel added that the case against the appellant being highly doubtful, the learned trial Court has erred in law to withhold the benefit of such doubt in favour of the appellant. In support of the submission reliance was placed on two cases captioned Tariq Pervez v. The State 1995 SCM R 1345 and Asghar Ali v. The State 1996 SCM R 1541.
9. On the contrary it was urged that the trial Court has considered the entire evidence on the record and has concluded that the prosecution has succeeded in proving the case of the appellant beyond reasonable doubt and technicalities, procedural or otherwise should not be given serious thought in such-like matters. Finally it was submitted that the trial Court has rightly convicted the appellant and impugned judgment does not suffer from any illegality or infirmity. To augument the contentions, reliance was placed on cases titled Munawar Hussain alias Bobi and 2 others v. The State 1993 SCM R 785 and Rasool Bakhsh v. The State 2000 PCr.LJ 1975 (Federal Shariat Court).
10. We have given our conscious consideration to the arguments oflearned counsel for both the parties and we are of the view that the arguments advanced by the learned counsel for the appellant are not devoid of any force. We find enough weight in his arguments. It is true that in the case of transportation or possession of narcotics, technicalities procedural or otherwise should be overlooked in the larger interest of the country, if the case stands otherwise proved and approach of the Court should be dynamic and while deciding the case the Court should consider the entire material as a whole and if it is convinced that the case is proved then conviction should be recorded notwithstanding the procedural defect as remarked in the case of Munawar Hussain v.
The State 1993 SCM R 785, but it is equally true that the plea of the appellant from the very beginning i,e, even from the date of recording his statement under section 161, Cr.P.C. Was that he had no concern whatsoever either with the vehicle in question as an owner or otherwise wherefrom the contraband narcotics were allegedly recovered nor had any knowledge of the presence of such contraband in the said vehicle. The vehicle was owned by co-convict Muhammad Arif and was also driven by him at the relevant time and the alleged occurrence took place when the appellant was travelling with the said co-accused being acquainted with him as residents of the same colony of Tarbela Dam. The factum of innocence and ignorance with regard to his involvement in the case has also been approved by co-accused Muhammad Arif right from beginning when his statement was recorded under section 161, Cr.P.C., his examination under section 342, Cr.P.C. As well as his statement recorded on oath as his own witness under section 340(2), Cr.P.C. Wherein he has categorically exonerated the appellant from any such involvement in the commission of offence in the instant case. We also find ourselves in agreement with the learned counsel for the appellant that there is no legal evidence brought on record to connect the appellant with the commission of the offence and the mere presence of the appellant at the time of occurrence as passenger with the co-accused Muhammad Arif in the vehicle in question without any knowledge and conscious possession of the contraband in the said vehicle cannot be made the basis for conviction of the appellant and the case against the appellant being highly doubtful, the learned trial Court has erred in law to withhold the benefit of such doubt in favour of the appellant. It needs no reiteration that for giving benefit of doubt to an accused person, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates a reasonable doubt in prudent mind about the guilt of the accused then accused will be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. Tariq Pervez v. The State PLD 1995 SC 1345 (sic).
11. We, therefore, on a detailed analysis of the evidence on the record, are constrained to hold that the prosecution has not been able produce any confidence-inspiring evidence to connect the appellant with the crime beyond any shadow of reasonable doubt.
12. The upshot of the above discussion is that there is being no satisfactory basis for upholding the conviction and sentence of the appellant, the appeal is allowed, the conviction and sentence of the appellant is set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case.