2002 P Cr (PLP)

FAZAL ILAHI KHAN, C.J.‑‑‑ State through Advocate‑General, N.-W.F.P. has appealed against the judgment and order, dated 13‑6‑2001 passed by the learned Senior Civil Judge/Judicial Magistrate, Illaqa Qazi Chitral, whereby the accused/respondent namely Hazartullah son of Izzatullah, the accused/respondent, was acquitted of the charge under Articles 3/4' of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to above as the Prohibition Order).

2. The facts briefly stated are that on 16‑9‑1997 on secret information that truck bearing No.2435/SW driven by Hazartullah son of Izzatullah, the accused/respondent, is parked near the Officers Colony, Chitral in a suspicious condition, Sanaullah, S.H.O. Police Station Chitral accompanied by Attaullah, A.S.‑I. and the police party rushed to the spot and found ten cartons of tincture containing 494 bottles in all which were taken into possession vide recovery memo. Exh.P.W.l/2. From each carton 9 ml. tincture was separated and scaled for chemical analysis. He drafted the Murasila Exh.P.W.l/1 and sent it through Gulfaraz F.C. to police station for registration of the case. The accused was arrested and the case was registered against him vide F. I. R. No. 168 dated 16‑9‑1997 under Articles 3/4 of the Prohibition Order. On completion of the investigation the case was put in Court against the accused. Formal charge against the accused was framed to which the accused pleaded not guilty and claimed trial.

3. The prosecution in support of its case examined Sanaullah, S.H:O. (P.W.1), who reiterated the contents of the Murasila EXh,P.W.I/1. He also took into possession truck alongwith its registration book and the billet, and the receipts, which are EXh.P.W.l/6 to Exh. P. W .1 /8. He recorded the statements of the P. Ws. under section 161, Criminal Procedure Code and submitted complete challan against the accused. Attaullah Khan, A.S.‑I. (P.W.2) stated that in his presence the recovery was effected and the S.H.O. took into possession the truck alongwith its registration book and billet receipts. Hussain Wali, Muharrir (P.W.3) registered the case vide F.I.R. Exh.P.W.3/1 against the accused on the receipt of the Murasila Exh.P.W.1/1. Abdur Rehman, (P.W.4) is a shopkeeper in the vicinity who stated that when the truck arrived near his shop, the police arrived and took the same to the police station and recovered tincture from inside the truck. Muhammad Hasham, Constable (P.W.5) is witness 'to the recovery memo. whereby the truck and the billet in the name of Sajid Medicos, were taken into possession.

4. The accused was examined under section 342, Criminal Procedure Code. He admitted the recovery of the cartons from his truck but he stated that he did not know its contents. He being a truck driver by profession as usually was handed over the cartons at goods forwarding agency Batkhela for Chitral alongwith other items and when he reached Chitral he tried his best to reach for the Sajid Medicos in whose name the billets were made when the police arrived and arrested him. He made the same statement on oath under section 340(2), Criminal Procedure Code and produced Haji Sarfraz Khan and Fakhr‑e?-Alam in his defence. Both the D.Ws. are Chemist and Druggist and have deposed that the accused had come to them and had inquired about Sajid Medicos and they have told him that there is no such Chemist and Druggist Shop in Chitral named Sajid Medicos.

5. The learned .trial Judge acquitted the accused for the reason that the accused when arrested possessed of billets and receipts, these are Exh.P.W.I/1 to EXh.P.W.l/8 placed on file which fully support the plea of the accused that the cartons as such were handed over to him at Amandara/Batkhela for delivery to Sajid Medicos at Chitral. The learned trial Judge further held that Abdur Rehman P.W. did not support the prosecution case.

6. After hearing the learned counsel for the parties and perusal of the record, we are inclined to accept this appeal for the reason that the recovery of the cartons from the truck in question and its contents had not been denied by the accused, therefore, even if Abdur Rehman had made confessional statement regarding the place where the recovery was made from the truck is immaterial and has wrongly been considered as a ground for acquittal of the accused. As far as failure of the prosecution to trace the real culprit, who had booked the cartons at Batkhela or at Lahore and also to trace the addressee, no doubt is very serious and objectionable and point towards the incompetency or otherwise of the Investigation Agency, the learned Deputy Advocate‑General rightly pointed out that law is that whoever is found in possession of contraband is guilty of the offence under Article 3 or 4 of the Prohibition Order as the case may be and the person who is found in possession, in order to shift the burden from him, has to lead the prosecution agency to the goods forwarding agency wherefrom he had picked up the carton and further to trace the source wherefrom initially the goods were booked and the billty prepared. The person who runs the goods forwarding agency is bound to verify the identity of the person who had initially booked the goods through the forwarding agency so that responsibility could be fixed in the even contraband goods/articles are forwarded through the goods forwarding agency.

7. For the reason stated above this appeal is accepted, the judgment and order is set aside and the case is remanded to the trial Court with the direction that he shall direct the prosecution agency to trace out the real culprit, i.e. the addressee/proprietor of Sajid Medicos as well as the person who had initially brought the goods to the forwarding agency at Lahore or at Amandara (Batkhela). In absence of making such, investigation it will be impossible to convict a person found in possession of such‑like cartons containing contraband goods on mere statement of a driver carrying such goods that the same were handed over to him by the goods forwarding agency and plead innocence. It is improbable that the addressee could not have been traced if proper investigation was made. A copy of this judgment shall also be sent to the Superintendent of Police. Chitral for taking necessary action in this regard. H.B.T./73/FSC??????????? Case remanded.