2013 PLP 995 (YLR)

MIFTAH-UD-DIN KHAN, J.

On receipt of prior info about smuggling of narcotics from tribal area to the down country in a truck bearing Registration No.K-5851 Peshawar, Abid-ur-Rehman, Inspector/S.H.O. of Police Station Sarband Peshawar along with other police officials barricaded the road near Khan Lara when at 7.00 hours, the said vehicle appeared on the scene from the Sarband side which, on signal, was stopped. The vehicle in question was driven by one Islam Hussain whereas another person by the name of Anwar Javed was sitting on its front seat, alongside the driver. On search, the information so received was found correct as 45 Kg. heroin was recovered from the secret cavities made in the specially designed wooden planks numbering

30. Both the accused were arrested and the vehicle along with contraband thus recovered were taken into possession. Accordingly, a case under section 9 C.N.S.A. was registered against them, vide F.I.R. No.164, dated 7-4-2011 at Police Station Sarband, Peshawar.

2. After their arrest, during investigation, the accused disclosed the names of their accomplices, namely, Haji Khan, Hakeemullah and Zahidullah, residents of Khyber Agency who have been declared absconders in the case. On completion of investigation, they were sent to the learned Additional Sessions Judge-XIII, Peshawar, for trial, who on its conclusion, sentenced both of them to rigorous imprisonment for 14 years with a fine of Rs.One lac each or in default to undergo six months' S.I. each, also extending them benefit of section 382-B, Cr.P.C., vide judgment dated 19-3-2012.

3. Two Appeals, bearing Nos.159 of 2012 and 212 of 2012 have been preferred against the aforesaid impugned judgment, former by the convict Anwar Javed while the latter by Islam Hussain. Since both the appeals are directed against the same judgment dated 19-3-2012, they are disposed of through this single judgment.

4. The learned counsel for the appellant Islam Hussain by referring to the serious drawbacks in the prosecution case submitted that the manner and mode of alleged recovery of contraband has made the prosecution case full of doubts; that there is no evidence that the vehicle wherefrom the alleged contraband was recovered, was owned by the appellant nor any driving licence has been taken into custody from the possession of the appellant in order to confirm the factum of driving the vehicle by the appellant at the relevant time as alleged by the prosecution therefore, it would be highly unjust to maintain conviction and sentence recorded by the learned trial Court on such state of evidence. The learned counsel appearing on behalf of appellant Anwar Javed submitted that appellant was not the driver of the truck as he had taken lift from the driver Islam Hussain; that there is no evidence on record to show his conscious knowledge qua presence of contraband in the wooden planks nor the prosecution could collect any material establishing his nexus either with the concealed contraband or with other accused charged in the case, therefore, his conviction in the absence of any evidence regarding his involvement in the commission of offence is not tenable in the eye of law as the same is the result of mis-appreciation of evidence which requires to be set at naught by this court in appellate jurisdiction.

5. As against that, the learned counsel for the State by referring to the evidence of the P.Ws. contended that when all the P.Ws. are unanimous as to the factum of recovery and there is nothing in their evidence as could show that they deposed against the appellants falsely or planted false recovery on them, they were rightly convicted and sentenced by the learned trial Judge through a well reasoned judgment which is not open to any exception.

6. We have gone through the record carefully and have also considered the submissions made by the learned counsel for the parties.

7. The prosecution to prove its case against the accused, examined as many as five witnesses, besides DFC as SW but it is the testimony of P.Ws. 3 and 4 which is material for just decision of these appeals. P.W.3 is Abid-ur-Rehman, Inspector who is complainant of the case, who stated that on prior information qua transportation of heroin through Truck bearing Registration No.K-5851/Peshawar, he blocked the road near Khan Lara when in the meantime, the said truck was seen coming from Sarband Side which was stopped. One Islam Hussain was driving the vehicle at the relevant time and on its front seat another person, namely Anwar Javed was sitting. On search, he found the information correct as from 30 wooden planks, heroin weighing 45 Kg. was recovered. He stated that the contraband was in the packets each weighing 500 grams. Accordingly, the accused as well as the contraband and the vehicle were taken into possession. This witness has stated that from each packet one gram of heroin was separated and thus as many as 90 parcels were sealed for chemical analysis. The second material witness of the prosecution is Nisar Ahmad, A.S.-I. who appeared as P.W.4. He is marginal witness to the recovery Memo Exh.P.W.3/1 whereby the I.O. took into possession the contrabands etc. This witness reiterated the same facts given in the F.I.R. as well as uttered by P.W.3. Both the witnesses were subjected to lengthy searching cross-examination but with no fruitful result. 7A. After going through the evidence of the prosecution and hearing the arguments of the learned counsel for the parties, it becomes crystal clear that so far as involvement of appellant Islam Hussain in the commission of offence is concerned, it is undoubtedly proved by the prosecution by leading overwhelming evidence against him and as such he has rightly been convicted and sentenced by the learned trial Court. However, as regards conviction of Anwar Javed, suffice is to say that he was neither driving the vehicle at the relevant time nor there is an iota of evidence to the effect that he was either owner of truck or its cleaner. Similarly, P.W.3 Abid-ur-Rehman, who is complainant of the case has stated in his cross-examination that accused Anwar Javed has not disclosed the factum of concealment of contraband in the secret cavities but it was accused Islam Hussain who was not only driving the truck in question at the relevant time but was also in control and conscious knowledge of the presence of heroin concealed in the wooden planks of the truck. Furthermore, there is also no evidence on record to show that the appellant Anwar Javed was accomplice of the principal accused Islam Hussain or he was in know of the presence of contraband in the truck in question or had any liaison with the absconding co-accused. In these circumstances, he can only be said to be passively sitting in the truck in question with no criminal background as the prosecution evidence suggests so. In this view of the matter, the conviction of the appellant Anwar Javed cannot be sustained.

8. Resultantly, appeal of Islam Hussain stands dismissed while that of Anwar Javed is accepted, his conviction and sentence recorded by the trial Court stand set aside and he is acquitted of the charge. He be set at liberty forthwith, if not required in any other case. MWA/3/P Order accordingly.