P L D 1993 Peshawar 189 (PLP)

‑‑‑‑S. 156(89)/178‑‑‑Appraisal of evidence‑‑‑Accused was found to have joined the truck on the way as conductor on temporary duty on which the contraband narcotics were loaded in hidden cavities ‑‑‑Co‑accused (driver) in his inculpatory statement while pleading guilty had exonerated the accused‑‑ Prosecution had, thus, failed to prove beyond reasonable doubt that the accused had the knowledge of the truck being loaded with contraband narcotics‑‑‑Accused was acquitted in circumstances. Muhammad Asif for Appellant. Abdul Latif Yousafzai, DA.‑G. for the State. Date of hearing: 22nd May, 1993. A charge of smuggling 8,500 Kg. contraband narcotics "Charas" of foreign origin in a Truck under section 156(89) read with section 178 of the Customs Act, 1969 was read over to Muhammad Saddiq accused and he was asked whether he was guilty or has any defence to make that in response he pleaded guilty and the Court recorded his such plea and proceeded in his discretion to convict and sentence him on the charge to a punishment of three years' R.1. and a line of Rs.one lac or in default three years' R.I. further by a judgment and order, dated 7‑10‑1992, where against Muhammad Saddiq filed Appeal No.35 of 1993, throwing a main contest, to the quantum of sentence.

2. Zardad co‑accused did not plead guilty and claimed a trial, that prosecution produced evidence in Abdur Rashid Khattak, Inspector'(P.W.1), Mir Nawaz Khan, D.S. (P.W.2), Saifur Rehman, Inspector Customs House (P.W.3), M. Ayub Sepoy Customs (P.W.4), Mustaqeem Shah, Chemical Examiner (P.W.5) and one Attaur Rehman Inspector/Appraiser Customs (P.W.6), that afterwards Zardad accused was examined under section 342; Cr.P.C. followed by his statement on oath in his defence and also producing one Misal Khan as D.W.l. Trial Court did not believe into the defence story that Zardad boarded the Truck at Mattani and per chance met his co‑accused Muhammad Saddiq. The Court further burdened him with the knowledge of the contraband narcotics loaded in the Truck and as such held him equally responsible along his co‑accused in the commission of the offence, that as a result he convicted and sentenced him to the same punishment of three years' R.I. and fine of Rs.one lac or in default three years' R.I. further, extending, no doubt, benefit under section 382‑B, Cr.P.C. to him in the computation of his period of imprisonment. Zardad filed Criminal Appeal No.27 of 1993 in this Court as against his conviction and sentences. We propose to dispose of the two appeals by a joint order.

3. Muhammad Asif Khan, Advocate appearing for Muhammad Saddiq appellant argued that the appellant was engaged as driver on Truck and hired as carrier for the smuggling of the contraband narcotics. He contended that the appellant was a truthful person to come forward with a plead guilty plea to the charge on the first day and was thus entitled to extra lenient treatment in the award of punishment. It appears that the Court accepted his plea as correct and proceeded in his discretion to convict and sentence him on the strength of his only said plead guilty plea. His statement proved him a carrier and also a first offender. Reference was made to 1976 P Cr. ‑L J 166 that in a case of smuggling of 35,000 Tolas foreign gold and 21,000 number of wrist watches, etc. etc. the convicts' sentences were reduced from six years' R.I. and a fine of rupees two lac each or in default three years' R.I. to an imprisonment of two years and a fine of Rs.10,000 each or in default nine months' R.I. further on the plea that the convicts were mere carriers. It was contended that in the instant case too Muhammad Saddiq appellant was only a carrier and he was, therefore, entitled to the concession in award of punishment, moreso, for he has come forward with a plead guilty plea to the charge on the first day of the trial. In the context it was also pointed out that Muhammad Saddiq appellant shall further fare the ordeal of a trial on charges under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 in respect of the same contraband narcotics carried by him in the Truck. This Court would accept the arguments advanced and further accept the appeal and consequently reduce the sentence of Muhammad Saddiq appellant from three years' imprisonment to one and a half years' imprisonment and a fine of Rs.50,000 or in default one and a half years' imprisonment further on the charge under section 156(89) read with section 178 of the Customs Act.

4. As far the appeal of Zardad convict against his conviction and sentences is concerned, this Court would once again refer to the plead guilty statement of co‑accused Muhammad Saddiq that he was delivered the loaded Truck by one Maqbali of Dera Adam Khel who also apprised him of the contraband "Charas" loaded in it to be carried to Bisham that he started on his journey and met Zardad his ca‑villager at Mattani whom he made to accompany him up to Bisham. He expressly stated that Zardad appellant did not know about the load of the Truck in contraband "Charas" hidden in the secret cavities under asbestos sheets: In the absence of evidence to the contrary the plead guilty statement is to be accepted as a whole. The members of the customs raiding party produced. at the trial were all cross‑examined on the point that Zardad appellant was asleep in the body of the Truck at the time of raid and he did not presumably possess the knowledge of the truck loaded with contraband narcotics in "Charas". Zardad appellant recorded a statement under section 342, Cr.P.C. to the same effect and also gave evidence on oath under section 340(2), Cr.P.C. in disproof of the charge and allegations made against him at the trial. He stated that he boarded the Truck at Mattani on the invitation of his co‑accused Muhammad Saddiq; his co‑villager and that in fact he was the conductor on the Truck of one Wakeel Khan. The appellant also produced one Misal Khan (D.W.1) who stated that Zardad was the conductor on the truck of one Wakeel that on the preceding night he had met him at Mattani and he borrowed "Jack" from him, that meanwhile Muhammad Saddiq arrived in his Truck and on his invitation Zardad joined him as a conductor on temporary duty on the Truck.

5. True, the learned Special Judge did not believe in the whole story of appellant's boarding the Truck at Mattani and per chance meeting Muhammad Siddiq and further burdened him with the knowledge of the contents of the Truck but there has not come forth evidence to burden him with such knowledge, rather, the evidence on record, particularly the plead guilty plea of co‑accused Muhammad Saddiq and appellant's own statement under section 342, Cr.P.C. followed by his statement on oath and of a defence witness, this Court would better extend him a benefit of doubt because in case of every.criminal act presence of a guilty knowledge and mens rea is the necessary ingredient. Under section 178 of the Customs Act accompanying persons are incurred a constructive liability if every such person has the knowledge of such fact and in the instant case the prosecution does not appear to have proved beyond all reasonable doubt that Zardad appellant had the knowledge of the fact that the Truck was loaded with contraband narcotics in Charas. On the contrary the attending circumstances belie his possession of the knowledge since the evidence on record report that he boarded the loaded Truck at Mattain on way; the contraband narcotics were loaded in the Truck in hidden cavities covered by asbestos sheets; the co‑accused, the driver of the Truck was his co‑villager whom he trusted in good faith in joining as conductor on temporary duty and last that co‑accused himself exonerated him in his inculpatory plead guilty plea.

6. This Court would consequently accept Zardad's Appeal No.27 of 1993 and order his acquittal to be released forthwith if not wanted in any other case. N.H.Q./1485/P Order accordingly.