NEK MUHAMMAD Versus THE STATE

1. SAIDUZZAMAN SIDDIQUI, J: --The appellants were tried under Articles Nos. 3 and 4 of the Prohibition (Enforcement of Hadd) Order 1979, hereinafter to be referred `the Order' only. Both the appellants were found guilty by the trial Court under Articles Nos. 3 and 4 of the Order and sentenced to life imprisonment and fine of Rs.25,000 each. In default of payment of fine they were directed to suffer R.I. for one year more. Both the accused were given benefit of section 382-B, Cr.P.C. The learned Federal Shariat Court agreed with the conviction and sentence awarded to the appellants by the trial Court arid accordingly, their appeals were dismissed. Leave was granted in the above case to consider the conviction and sentence of the appellants as follows:---

2. We have gone through the evidence on record in the case with the i help of the learned counsel for the appellants as well as the State and are of the view that the prosecution failed to establish the case against the appellants beyond reasonable doubt. We may observe here that mere recovery of contraband articles from a place or a vehicle does not automatically connect an accused person with such contraband articles unless prosecution succeeds in I8 showing that the accused person had a conscious possession of the contraband articles. It is an admitted position in the case that the two appellants were found sitting inside the public transport and on suspicion they were brought down by Jahan Khan, Excise Sub-Inspector (P.W.1). On personal search of the appellant Nek Muhammad, P.W.1 recovered Rs.730.from the side pocket of the shirt including his National Identity Card. While a sum of Rs.220 was found lying in front pocket of the shirt of appellant Hidayatullah and his National Identity Card was also recovered by P.W.1. Thereafter, P.W.1 made search of the bus and secured registration book of the bus which was in the name of one Jan Muhammad lying on the dash board of the bus. During this search P.W.1 noticed one cavity under the main gate of the bus which was closed by means of bolts. This cavity was opened and it was found to contain six bags of white cloths. One spare wheel and a wheel Pana were found lying at the top of the bus. On opening the cotton bags, heroin powder was found in double `Kaki' envelope wrapped by a plastic cover. Each bag was found containing one kilogram of heroin. 50 grams of heroin was taken out from each bag as sample for chemical analysis and thereafter, the bags containing the remaining quantity of heroin and the samples were separately sealed. There is nothing in the evidence of P.W./1 or any other P.W. examined in the case, to show that either the two appellants pointed out the concealed heroin in the cavity of the bus or that they were aware of the presence of the heroin in the cavity of the bus. It is not even alleged in the statement of P.W.1 that he suspected that the two appellants had concealed the said heroin in the cavity of the bus. P.W.1 also did not allege either in the F.I.R. or in his examination-in-chief that any one of the. two appellants was found. driving the bus but in cross-examination he did say that there were only .2 appellants in the bus, out of which appellant Nek Muhammad was driving the bus while Hidayatullah was sitting near him. The suggestion given to this witness in cross-examination that the bus was driven by one Dayar, was denied. It was also denied by this witness (P.W.1) that the 2 appellants were passengers in the said bus and were in possession of the tickets. This witness (P.W.1), however, admitted in cross-examination that in the . F.I.R. lodged by him in the case he did not disclose that appellant Hidayatullah was either cleaner or a co-driver or an associate of the management of the bus. The two appellants in their statements under section 342, Cr.P.C. had taken a categorical stand that they were travelling in the said bus as passengers and that they had tickets issued to them by the bus company which they produced in the evidence. They also examined some of the bus passengers in support of their contention that at the time the bus was intercepted, there were several other passengers in the bus. Appellant Nek Muhammad in his statement under section 342, Cr.P.C. had. categorically stated that he has been involved in the case because of the altercation and fight with excise people at the time they searched the bus. After going through the evidence in the case, we find that leaving aside the question of conscious possession of heroin by the two appellants, the prosecution even failed to disclose any connection of appellant Hidayatullah either with the bus or with the ownership of the contraband heroin which was recovered from the cavity of the bus after unbolting it. It is also significant that nowhere in the F.I.R. which 'was lodged by P.W.1 the Excise Sub-Inspector, he alleged that appellant No.2 had any connection with the bus. He also did not state so when he was examined on oath before the Court. His statement in cross-examination that Nek - Muhammad was the driver of the bus is clearly an improvement unsupported by any evidence on record. It is significant that no driving licence was recovered from the appellant Nek Muhammad and it was also not alleged that he was driving the bus without any licence. Nek Muhammad has not been challaned for driving the bus without licence. The prosecution failed to lead any evidence in the case to establish the connection of the two appellants with the vehicle from where the contraband heroin was recovered, either as its owner or driver or in any other capacity. We may mention here that in cases where contraband heroin is found lying concealed in a vehicle in a manner that it is not discoverable on mere inspection of the vehicle and it is necessary to have special knowledge about its concealment to recover it then in such cases, mere presence of a person in such vehicle could not make him liable for conscious possession of such contraband article. In such cases, it is necessary for the prosecution to further show that presence of heroin was within his knowledge or that he had such a connection with the vehicle which would make his presence in the vehicle as amounting to his conscious possession of such contraband article lying concealed in the vehicle. After going through the entire prosecution evidence, we have not been able to discover any connection of the two appellants either with the ownership of the bus or their connection with the vehicle as a driver or- cleaner of the bus muchless the possession of the C contraband heroin which was recovered from the body of the bus lying concealed in a cavity. We are constrained to observe that in a number of similar cases coming before us, the Excise people either deliberately or out of sheer incompetence failed to prosecute the persons who were named as owner of the vehicle with the result it became well nigh impossible for the prosecution to connect the person found present in vehicle with the conscious possession of contraband heroin. In the present case it cannot be said on the basis of the evidence on record that the prosecution succeeded in establishing any connection between the two appellants and the contraband heroin, recovered from the body of the bus lying concealed in a cavity which was closed by means p 'of bolts. We, accordingly, allow the appeal, set aside the conviction and sentence of the appellants. They are directed to be set at liberty forthwith unless required by the authorities in some other case.

3. N.H.Q./N-431/S Appeal allowed