2006SCMR1343 (PLP)

MUHAMMAD NAWAZ ABBASI, J.

These two connected petitions have been directed against the judgment, dated 3-2-2004 passed by Peshawar High Court, Peshawar whereby the criminal appeal filed by the petitioners against the conviction and sentence awarded to them by Special Court established under Control of Narcotic Substances Act, 1997 at Kohat was dismissed.

2. In pursuance of the information regarding trafficking of huge quantity of narcotic, a raiding party of Anti-Narcotic Force, consisting of Mir Badshah, Inspector (P.W.2), Zahoor Shah (P.W.3) and Fida Hussain, Foot Constable (P.W.4), having intercepted a Suzuki car on Kohat Road in which the petitioners, namely Anwar Khan and Mst. Najam-un-Nisa were travelling along with their co-accused Khalid Khan (convict) and Mst. Sameena Gul (since acquitted) recovered 40 packets of opium and 38 packets of Charas (each packet weighing one Kg.) from the secret cavities made in the diggi of the vehicle. The Inspector, having separated 4 grams from each packet of Charas and opium, prepared 78 sealed parcels of samples to be sent to the Chemical Examiner for analysis. The prosecution in addition to the producing of members of raiding party as witnesses, also placed reliance on the report of Chemical Examiner, according to which the contents of parcels were contraband Charas and opium. Anwar Khan, petitioner, was produced before a Judicial Magistrate at Kohat and he made the following statement before the Magistrate:-- "I am educated upto middle level i.e. 8th Class. Nisar son of Totay Khan resident of Fatehpur persuaded me and Khalid to transport narcotic to Lahore in lieu of Rs.10,000 as transport charges. Accordingly, we were on board along with two ladies and when the M/car bearing No. Peshawar D-4610 reached on Kohat Check Post on which we were on board, on checking Charas weighing 38 Kgs. and opium weighing 42 Kgs. was recovered from us and we all i.e. 2 ladies and male were arrested and Narcotics with M/Car were taken into custody." The petitioner, in his statemenf ,under section 342, Cr.P.C., having denied the charge pleaded not to have made a confessional statement voluntarily before the Judicial Magistrate whereas Mst. Najam?un-Nisa, (petitioner in the connected petition) taking plea of lack of knowledge about the narcotics recovered from the secret cavities of the car, denied the charge with the assertion that she and Mst. Samina Gul having taker' lift from the male accused were travelling with them as passengers.

3. The learned counsel for Anwar Khan, petitioner, has contended that the alleged confessional statement of petitioner and Khalid Khan, his co-accused, recorded by a Judicial Magistrate under section 164, Cr.P.C. would have no evidentiary value to be used as admissible evidence being the result of torture and also in conflict to the provisions of section 265-J, Cr.P.C. Learned counsel next argued that the case against Mst. Najamun Nisa being not distinguishable to that of Samina Gul who has been acquitted, she could not be convicted on the basis of same evidence in absence of independent corroboration. Learned counsel for the State, on the other hand, has submitted that the petitioners having been found transporting huge quantity of narcotics were arrested at the spot and apart from judicial confession made by Anwar Khan, (petitioner) prosecution has 'produced sufficient direct evidence of 'unimpeachable character to establish the charge against them and was successful in proving their guilt beyond reasonable doubt.

4. The contention of the learned counsel regarding the inadmissibility of confessional statement of Anwar Khan, (petitioner) has no substance as nothing has been brought on record to suggest that the confession was the result of coercion, undue influence, torture or it was made by him under the compelled circumstances. The confessional statement of a person, if is found voluntary and confidence inspiring, must not be discarded for mere reason that it was retracted at the trial. In the present case, prosecution has produced sufficient direct evidence and even if the confessional statement of Anwar ' Khan (petitioner) is excluded from consideration, still the charge against him would be proved beyond any doubt. Mr. Tariq Bilal, learned Advocate Supreme Court, counsel for Mst. Najam-un-Nisa, petitioner in Jail Petition No.454 of 2004 appointed on State expenses, has argued that the case against this petitioner was not distinguishable to that of Mst. Samina Gul who has been acquitted, therefore, she was also entitled to the same benefit.

5. The recovery of contraband opium and Charas from the vehicle in which the present petitioners and their co-accused were travelling was proved through direct evidence and in addition thereto, Anwar Khan has also confessed his guilt before a Judicial Magistrate in his statement under section 164, Cr.P.C., therefore, to his extent no exception can be taken to the judgment of the High Court. However, the case against Mst. Najam-un-Nisa, petitioner, in Jail Petition No.454 of 2004 is distinguishable and she would stand at par to Mst. Samina Gul who was acquitted by the learned trial Judge with the observation that probably, she had no conscious knowledge of the narcotic being carried in the vehicle by her co-accused. The mere fact that the car which was used for the crime, belonged to son-in-law of Mst. Najam-un-Nisa and she was also travelling in the car, would not be sufficient to suggest that she had conscious knowledge of narcotic in the car and consequently, the charge against her was not proved beyond reasonable doubt. The prosecution has not been able to bring on record any convincing evidence to distinguish her case to that of Samina Gul and prove that she being privy to the crime, was travelling in the car with her co-accused.

6. In the light of foregoing discussion, Criminal Petition No.453 of 2004 filed by Anwar Khan, convict, is dismissed and leave is refused in this petition whereas Jail Petition No.454 of 2004 filed by Mst. Najam?un-Nisa is converted into an appeal and conviction and sentence awarded to her is set aside by giving her the benefit of doubt. She is directed to be released from jail forthwith if not required in any other case. The appeal of Mst. Najam-un-Nisa is allowed. M.B.A./A-40/SC???????????????????????????????????????????????????????????????????????????????? Order accordingly.