P L D 2012 Supreme Court 369 (PLP)

ASIF SAEED KHAN KHOSA, J.

At the outset it has been noticed that Mst. Bushra (one of the appellants) has already died on 14-7-2008 and, thus, this appeal to her extent has already abated.

2. Mst. Jameela appellant was booked in case F.I.R. No.157 registered at Police Station Aza Khel, District Nowshera on 24-5-2004 in respect of offences under section 9 of the Control of Narcotic Substances Act, 1997 and sections 13/14 of the Pakistan Arms Ordinance, 1965. The learned trial court had convicted the appellant for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and had sentenced her to imprisonment for life and fine and she was additionally convicted for an offence under section 13 of the Pakistan Arms Ordinance, 1965 and was sentenced to rigorous imprisonment for five years and fine. The appellant's appeal filed before the Peshawar High Court, Peshawar was dismissed by a learned Division Bench of the said Court through the impugned judgment dated 7-3-2007 with some modifications in the sentences passed by the learned trial court against the appellant. Hence, the present-appeal by leave of this Court granted on 17-7-2009.

3. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance.

4. It is not disputed that the appellant was not driving the vehicle, in question at the relevant time and according to the prosecution itself the appellant was sitting along with another lady on the rear seat of the vehicle at the time of its interception by the police party. It is also the prosecution's own case that nothing had been recovered from the appellant's physical possession and that the narcotic substance and weapons recovered in this case had been recovered from some secret cavities of the motorcar and also from the boot of the same. The law on the subject is quite settled that mere presence of a passenger in a vehicle cannot be treated as sufficient to saddle him with the responsibility of possession of narcotic substance recovered from the vehicle unless the prosecution establishes through independent evidence that such passenger was conscious and aware of availability of narcotic substance in the vehicle. We have gone through the record of this case from cover to cover and have found that not even an iota of evidence had been produced by the prosecution to establish conscious possession on the part of the present appellant. In this view of the matter we have found the learned courts below to be utterly unjustified in convicting and sentencing the appellant for the alleged offences. This appeal is, therefore allowed, the convictions and sentences of the appellant recorded and upheld by the learned courts below are set aside and she is acquitted of the charge by extending the benefit of doubt to her. She shall be released from the, jail forthwith if not required to be detained in connection with any other case. M.W.A./J-2/S Appeal allowed.