MALIK HAMID SAEED, J.--Nek Muhammad and Muhammad Umar, accused/appellants, have preferred this appeal against the impugned judgment dated 3-12-2001 of the learned Judge, Special Court, Dera Ismail Khan whereby he while convicting the accused/appellants under section 9(c), CNSA, sentenced them to life imprisonment with a, tine of Rs, one million each or in default of payment of fine to undergo 2 years' IZ.I. Each. The benefit of section 382-B, Cr.P.C. Was extended to them.
2. Brief facts of the case are that the complainant Jawad Sultan, Intelligence Officer. Customs Intelligence, Dera Ismail Khan after receiving spy information from Qurban Ali, Deputy Director, Customs. Intelligence. Peshawar on 3-4-2000 that some narcotics in Truck No, LSA 971 would be smuggled from Bara, Khyber Agency to Punjab via Kohat, Dera Ismail Khan Road, he alongwith others made 'Naqabandi' near Qureshi More and started surveillance when in the meanwhile a truck hearing Registration No,LSA-971 coming from Dera Ismail Khan side was stopped. Nek Muhammad was driving the truck whereas Muhammad Umar was sitting with him. The truck was empty, however, some secret cavities made in its body were found and since at the spot the raiding party was not having any proper equipments, therefore, it was brought to the Customs Intelligence Office situated at Dera Ismail Khan-Daraban Road. On thorough search of the truck, 32 packets of heroin from its cavities were recovered and weighed, which came to 31.5 Kgs. And for which the accused could not furnish any plausible explanation. Jawad Sultan recorded the Murasila, Exh.PA/1 which was sent to Police Station I & P Customs House, Peshawar for registration of the case on the basis of which F.I.R. No,13 dated 4-4-2000 under sections 6, 7, 8 and 9 CNSA was registered against the accused. The recovery memo. Of the contral?And shows that 32 packets of heroin were wrapped in polythene. And then in cloth. The recovery was witnessed by Sepoy Inayatullah and Habibullah.
3. At the trial the prosecution examined four witnesses in support of its case. The accused/appellants in their statements under section 342, tr.P.C. However denied the charge.
4. The learned trial Judge vide impugned judgment convicted and sentenced the appellants accordingly.
5. The prosecution case is to the effect that on telephone information of Qurban Ali, Deputy Director, Customs, Intelligence, Peshawar, the complainant Jawad Sultan, Intelligence Officer, Customs, Dera Ismail Khan made Naqabandi near "Qureshi More" Dera Ismail Khan and when the truck in question was intercepted, nothing was recovered at the spot and the truck was taken to the Customs Intelligence House situated on Daraban Road, where it was searched thoroughly.
From the secret cavities 32 packets of heroin wrapped in polythene and then in cloth were recovered, which when weighed came to 31.5 Kgs. Recovery memo. To this effect was prepared but only 10 grams of sample was separated only from one packet for chemical analysis. Even then the sample in question remained in possession of the Investigating Officer for more than 2 months and it was sent to NIH Drugs Control and Traditional Medicines Laboratory, Islamabad on 19-6-2000, wherefrom a positive report was received. The accused also remained in custody of the Investigating Agency till 11-4-2000 but they did not confess their guilt. Another F.I.R. Bearing No,6 was also chalked out as a result of re-search of the truck in question at a latter stage wherefrom allegedly 16 ,other packets concealed in secret cavities were recovered. The owner of the truck could not be arrested by the Investigating Agency as he was a tribal man.
6. Perusal of the impugned judgment reveals that the learned trial Judge did not pay much consideration to the fact that the Investigating Officer had only separated sample for chemical analysis only from one packet out of the total lot of 32 packets. The learned trial Judge also ignored the fact that the remaining heroin could not be produced by the prosecution at the time of trial having allegedly been destroyed even before the conclusion of trial. In these circumstances, the culpability of the accused can only be treated with regard to only one packet from which the sample was taken and this would bring the case of the accused within the ambit of section 9 (b) instead of section 9 (c) of the Control of Narcotic Substances Act, 1997. In an authority of this Court, reported in 2002 PCr.LJ 1810 (Farid Gul v. The State), similar view is expressed. The relevant citation is hereby reproduced for the sake of convenience:-- "16. Out of 45 packets, each containing 1 Kg. Of Charas admittedly sample of 4 grams was taken from only one packet. The preponderance of the case-law produced before us is to the effect that where the sample from only one of the many packets recovered is sent to the laboratory and the result is positive the accused can be found guilty only as regards that packet. The culpability of the appellants can, therefore, only be regarding one packet, from which the samples were taken. Since each packet, according to the prosecution case weighed 1 Kg. This would bring the case against the appellants under section 9(b) C.N.S.A. Which provides for 7 years' imprisonment and fine if the narcotics drug does not exceed 1 kg."
7. Another important aspect of the case is that admittedly Nek Muhammad, accused/appellant was driving the truck at the relevant time and he could be presumed to have been in the knowledge of the contraband and to the extent of 1 kg. Heroin could be held responsible for the commission of the offence in view of the positive report of the laboratory, but so far as Muhammad Umar is concerned, his case is on different footings than from Nek Muhammad. He was only sitting in the truck as a cleaner at the relevant time and it is not proved against' him that he was having conscious knowledge of the narcotics concealed in the secret cavities of the truck. The learned trial Judge has also ignored this aspect of the case. In an authority of the august Supreme Court of Pakistan, reported in 1997 SCMR 345, in suchlike situation, the other fellow of the truck driver sitting with him has been absolved of the charge in view of the possibility that he might had no knowledge of the presence of heroin in the truck. Similar is the case here. The relevant citation from the judgment of the august Supreme Court of Pakistan is to the following effect:- "Appraisal of evidence.--One accused was driving the truck while the other accused was sitting with him--No evidence was available on record to show that the accused were either the owners of the truck or of the heroin recovered from its secret places or that they knew about the concealment of the heroin in the truck--Mere presence of accused in the truck was not enough for their conviction in the absence of reliable evidence about transportation of the heroin by them-- Investigating Agency did not bother to find out the owners of the truck and the heroin recovered from it and appeared to have acted with ulterior motive to save the real accused." The evidence of such a nature as required against Muhammad Umar, accused/appellant, in this case is lacking.
7. For the above reasons, the impugned judgment of the learned trial Court is liable to be modified in respect of the accused Nek Muhammad by converting his conviction and sentence under section 9(b) of C.N.S.A. And the setting aside of the same to the extent of Muhammad Umar, accused/appellant. Accordingly, the conviction of Nek Muhammad, accused/petitioner is altered from section 9(c), C.N.S.A. To section 9(b) C.N.S.A. And the sentence of life imprisonment also altered to that of 6 years' R.I. The fine is also reduced from Rs,one million to Rs, one lac only or in default thereof to undergo 6 months' S.I. The accused/appellant Nek Muhammad shall remain entitled to the benefit of section 382-B, Cr.P.C. The accused/appellant Muhammad Umar, is, however, acquitted of the charge and to his extent the impugned judgment is set aside. He shall be released from jail forthwith, if not required in any other case. Announced.