SHAHZADA vs THE STATE

' RAHMAT HUSSAIN JAFFERI, J.--- This judgment will dispose of Criminal Appeals Nos.381 and 382 of 2009, as they arise out of a common judgment.

2. The present appeals, by leave of the Court, are directed against a common judgment dated 8-1- 2007, passed by Peshawar High Court, Peshawar, by which the conviction for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred to as 'the Act') and sentence of imprisonment for life as also fine of Rs,200,000 or in default thereof to suffer S.I. For two years with benefit of section 382-B, Cr.P.C., awarded to both the appellants, by the learned Judge, Special Court (C.N.S.) N.-W.F.P, Peshawar, was maintained.

3. Brief facts giving rise to the present appeals are that on 14-7-2004 at about 8 p.m., a Car bearing Registration No,IDM-2699 was intercepted at Jamrod Road Peshawar near Hayat Abad Chowk but the driver accelerated the speed of the car in order to take away it but the police party chased the same and ultimately it hit with the official vehicle of A.N.F., resulting the stoppage of car of the culprits. The Driver ran away from the scene of incident whereas the appellants, who were sitting on the rear and front seats of the car were apprehended. The car was taken to the police station where on search, from its Digi 180 kilograms of Charas and one kilogram of opium were secured.

Samples were drawn for chemical analysis; such memo of arrest and recovery was prepared in presence of two official witnesses. After completing the investigation, the appellants were challaned in the Court, where they were tried and convicted, as mentioned above.

4. At the trial, the prosecution examined three witnesses, including the complainant and Mashir of recovery.

' They fully supported the prosecution case. From the evidence, it is clear that the appellants were not driving the car but the Driver of the car ran away from the scene of incident, whereas the allegation against the appellants is that they were sitting in the car.

5. In these circumstances, learned counsel for the appellants has argued that the car was not in possession of the appellants, as the same was driven by the Driver, who ran away, therefore, whatever was available in the car was in possession of the Driver; that the property was not lying open within the view and knowledge of the appellants, therefore, they had no knowledge of the property lying in the Digi of the car, as such they cannot be held to be in conscious possession of the property, therefore they are not liable for the possession of the property as in the case of the Driver. Conversely, learned Special Prosecutor General for A.N.F. Has stated that both the appellants were travelling in the car with huge quantity of Charas and opium lying in the Digi of the car, therefore, they are in joint possession with the Driver of the car, hence they are also responsible for the offence along with Driver of the car, who ran away from the scene of the incident.

6. We have heard the learned counsel for the parties and have perused the record of this case very carefully. As regards the appellants, who were simply sitting in the car, their case is distinguishable from the case of the Driver and for involvement of such persons the prosecution is required to lead some evidence to show that they had knowledge of the property lying in the car or they had abetted or conspired with the Driver in the commission of the crime. No such evidence has been led by the prosecution to prove the above aspects of the case so as to make the appellants responsible for the commission of the crime along with the Driver. If the property would have been lying open within the view of the appellants or they knew the placement of the property then the situation would have been different. In such a situation, the appellants were required to explain their position, as required under Article 122 of Qanun-e-Shahadat Order, 1984 and without such explanation their involvement in the case would have been proved. As the property was not within their view and they had no knowledge of the placement of the property, therefore, they cannot be held responsible and in joint possession of the property with the Driver. As such the case of the prosecution against the appellants is highly doubtful.

7. In the light of what has been discussed above, the conviction and sentences awarded to the appellants along with the impugned judgment, passed by the learned MO Court, were set aside by our short order dated 18-1-2010. These are the reasons of the said short order, which reads as under:--- "For the reasons to be recorded later on, while allowing these appeals, the conviction and sentences of the appellants, recorded by the Courts below, are set aside. They are acquitted of the charges and be released forthwith, if not required in any other case."