2011 PLP 411 (YLR)

MAZHAR ALAM KHAN MIANKHEL, J.

Through instant judgment, we intend to dispose of Criminal Appeal No. 341 of 2009 and Criminal Appeal No. 352 of 2009 both arising out of the same judgment whereby the three appellants in both the appeals were convicted by the Judge Special Court (CNS.), Peshawar vide his judgment dated 24-6-2009 and convicted the appellants under section 9(c) C.N.S.A. and sentenced them to life imprisonment along with fine of Rs.50,000 each or in default of payment of fine to further undergo one year' S.I. Benefit of section 382-B, Cr.P.C. was also extended to the appellants.

2. The ANF staff Kohat on secret information regarding smuggling of huge quantity of narcotics from tribal territory to Punjab via Kohat, intercepted a truck bearing registration No. MNT-2555 at collective check post Kohat coming from Darra Adam Khel side. On cursory examination of the truck, the ANF staff found narcotics in the secret cavities made in the cabin of the truck, so the truck along with the appellants was taken to police station ANF Kohat and after thorough search, 283.250 kg chars Pukhta, 51.600 kg of chars Gurda and 30 kg of opium contained in different packets was recovered from the secret cavities of the truck. 10 gram from each packet of chars Pukhta, chars Gurda and opium were separated for chemical analysis and the remaining chars Pukhta was sealed into 8 bags, chars Gurda in 2 bags and opium in one bag. Then a case under section 9(c) C.N.S.A. was registered against the accused vide F.I.R. No. 8 dated 30-6-2006 and formal arrest of the accused was made. The samples taken for chemical analysis were sent to the FSL which were tested positive.

3. During investigation, the confessional statements of all the three appellants were also recorded before the Court of Judicial Magistrate wherein appellants of Criminal Appeal No. 352 of 2009 i.e. Muhammad Rafique and Shahid confessed their guilt whereas the appellant Gul Meer, appellant in Criminal Appeal No. 341 of 2009 recorded his confessional statement before the Judicial Magistrate wherein he narrated the actual story which gets support on material facts of the occurrence from the confessional statements of other two appellants.

4. After investigation of the case, the case was sent for trial to the Court of Special Judge (CNS) Peshawar who after full-fledged trial convicted the appellants as above.

5. Learned counsel for the appellants submitted that the appellants being innocent have falsely been implicated in the case. The prosecution has also badly failed to connect the appellants with the commission of offence they were charged with. The prosecution also failed to prove the conscious knowledge and possession of the appellants regarding the incriminating articles allegedly recovered from the secret cavities of the truck. He further submitted that the Court may presume the innocence of the appellants from their conduct which reveals that they had no knowledge of the presence of the narcotics in the truck. If they had any such knowledge, they must have tried to escape from the spot.

6. As against that, learned Special Public Prosecutor appearing on behalf of ANF, submitted that all the three appellants were arrested from the truck. At the relevant time, Gul Meer appellant was at the driving seat, Muhammad Rafique was on the front seat of the truck as its owner and Shahid appellant was lying in the cabin of the truck where from the recovery of the incriminating articles was effected from the secret cavities made in the cabin for the purpose. He further submitted that prima facie recovery of the narcotics was established at the record and under section 29 of the C.N.S.A., there is presumption of possession of incriminating articles and the appellants have failed to rebut the same rather they have confessed their guilt. He submitted that the prosecution has fully established its case against the appellants and were rightly convicted and sentenced by the learned Special Judge (CNS) Peshawar and requested for dismissal of their appeals by maintaining the conviction and sentence.

7. We have heard the learned counsel for the parties and have gone 'through the record of the case. The prosecution to prove its case has recorded the statements of five P.Ws. which included the statements of I.O. as P.W.2 and recovery witness as P.W.3. P.W.1 was the person who took the parcels of incriminating articles to the FSL and P.W.4 was the person to whom custody of the recovered, articles was given and P.W.5 was the Judicial Magistrate who recorded the confessional statements of the appellants. The appellants besides recording their statements under section 342, Cr.P.C., the appellant Shahid recorded his statement on oath under section 340(2), Cr.P.C. and also produced two witnesses in defence whereas appellant Gul Meer also recorded his statement on oath under section 340(2), Cr.P.C.

8. A huge quantity of the incriminating articles were recovered from the secret cavities of the truck intercepted by the ANF staff Police Station Kohat. The nexus of both the appellants of Criminal Appeal No. 352 of 2009 with the truck has also been established on the record that Muhammad Rafique was sitting on the front seat alongside the driver as its owner and Shahid appellant was lying in the cabin of the truck as its first driver. No doubt, the said truck is registered in the name of some one else but ownership of truck in the name of Muhammad Rafique appellant is established on the record. The parcels/ packets separated for the chemical analysis were tested positive by the FSL. Besides, the above all, both the appellants have recorded their confessional statements before the Judicial Magistrate. Although the confessional statements were recorded on 4-7-2006 after delay of four days of the registration of the case but the same would reveal that the statements' were voluntarily recorded and without any duress and compulsion and apparently there is no reason to disbelieve them. Their presence as discussed above has even been admitted by Muhammad Rafique in his statement under section 342, Cr.P.C. The other appellant Shahid besides his statement under section 342, Cr.P.C., recorded his statement under section 340(2) and produced two witnesses in defence but was unable to rebut the presumption of possession of incriminating substance recovered from the truck. All the above discussion would lead us to a definite conclusion that the prosecution has established without any reasonable doubt the presence of huge quantity of incriminating substance recovered from the secret cavities of the truck which was well within the conscious knowledge of both the appellants and mens rea of both the appellants in the circumstances of the case is also established on the record. The prosecution witnesses are consistent in their version with no material contradiction in their statements. When it is established on the record that the recovered material is narcotics, then it becomes the turn of the person who is booked for the offence to rebut the material brought against him by the prosecution. The defence version given by the appellants is also not helpful to them as they have failed to rebut the evidence against them.

9. Now coming to the case of appellant Gul Meer, appellant in Criminal Appeal No. 341 of 2009, the prosecution evidence as discussed above, his own statements recorded under section 342 Cr.P.C. as well as 340(2), Cr.P.C. would lead us to the fact that he was unaware of the conscious knowledge of the presence of the narcotics in the truck. His stance gets verification from the record of the case. The prosecution in its case has also failed to establish as to whether he had knowledge of the presence of narcotics in the secret cavities of the truck or not. No doubt, he was on the driving seat at the time of recovery and he too, has admitted this very fact but his mere presence in the truck would not ipso facto be a proof of concealment of narcotics in the secret cavities and having conscious knowledge of the same. Only his presence and his admission as such would not be sufficient to connect him with the recovery of narcotics. Mere recovery of narcotics from a vehicle driven by the appellant at the relevant time, as far as case of the appellant is concerned, would not be sufficient to connect him with the commission of offence unless there is something material available on the record which could justify the involvement of the appellant. The evidence led by the prosecution is deficient in this regard while the evidence of the appellant referred above is confidence inspiring and prosecution has failed to establish a case under section 9(c) C.N.S.A. against Gul Meer appellant which makes his case distinguishable from that of the other two appellants as discussed above. His involvement in the case becomes doubtful benefit of which under the law cannot be refused to him.

10. For the reasons discussed above, we dismiss Criminal Appeal No. 352 of 2009 Muhammad Rafique and one other v. State and thereby maintain the conviction and sentence recorded by the trial Court and allow Criminal Appeal No. 341 of 2009 Gul Meer v. State and hereby set aside conviction and sentence of Gul Meer appellant recorded by the trial Court, so, he be released forthwith if not required in any other case. These were the reasons for our short order dated 26-8-2010. H.B.T./297/P Order accordingly.