TAJ AKBAR Versus State

IMTIAZ ALI, J .---On 14-6-2008, Nasir Khan IHC/IO (P.W.4) of Police Station Malaknd received secret information that `charas' would be smuggled to Swat in motorcar bearing No.4112/FDY. The police party found the suspected car and, on search, from its secret cavities, 12000 grams of Charas was recovered. The person, who was driving the car, disclosed his name as Taj Akbar, present appellant. He was arrested on the spot and a case under section 9(C) of the Control of Narcotic Substances Act, 1997 was registered against him vide F.I.R. No.15 dated 14-6-2008 in Police Station, Malakand. He was produced before Qazi Attaullah, Civil Judge (P.W.5) on 17-6-2008 and before him, he recorded his confessional statement vide Exh.P.W.5/1 to Exh.P.W.5/3. After completion of investigation, appellant was sent to the Court of learned Sessions Judge/Zilla Qazi, Malakand at Bakhela for trial, who, on its conclusion, sentenced him to suffer imprisonment for twenty five years R.I. with a fine of Rs.1,00,000 or in default, to further undergo six months S.I, vide judgment dated 8-9-2009. However, benefit of section 382-B, Cr.P.C. was extended to the appellant. Hence, this appeal.

2. The learned counsel appearing on behalf of appellant contended that the impugned judgment is based on misreading and non-reading of evidence, was against law and facts of the case and based upon surmises and conjectures; that an official, below the rank of sub-Inspector, is not competent to raid, arrest or search in narcotics cases and Nasir Khan, being an IHC, had laid the nakabandi, searched the vehicle and arrested the appellant, despite of the fact, that senior police officials were available in the police Station at the relevant time, which is clear-cut violation of section 21 of the CNSA; that there are major contradictions between star witnesses of the prosecution i.e. Parvez Shakeel, Muharrir (P.W.3) and Nasir Khan, IHC/IO (P.W.4); that though the alleged recovery was made on 14-6-2008 i.e. on the date of occurrence, but Investigating Officer (P.W.4) sent the samples to the FSL for analysis on 18-6-2008, which makes the prosecution case doubtful; that the so-called confessional statement of the appellant, relying upon which, learned Sessions Judge has awarded the harsh punishment, didn't show that the appellant had any knowledge about the narcotics in secret cavities of the vehicle as he categorically denied possession of narcotics and also ownership of the vehicle. In the end, learned counsel submitted that inflicting punishment of twenty five years rigorous imprisonment is too harsh and not justified in view of the afore-noted infirmities and loopholes in the prosecution case, therefore, appellant be acquitted from the charge levelled against him. Learned counsel in support of his contentions placed reliance on the cases of Nek Muhammad and another v. State (PLD 1995 SC 516) and Sarwar v. State (2003 PCr.LJ 1387).

3. As against this, learned counsel appearing on behalf of the State by highlighting the salient features of the case argued that the appellant was arrested red-handed on the spot while trafficking huge quantity of narcotics and he voluntarily confessed his guilt before the learned Civil Judge (P.W.5); that all the witnesses, examined by the prosecution, were consistent, there being no discrepancy in their evidence; that the chemical examiner report Exh.PZ, is in positive; the charge against the appellant stands proved beyond any shadow of doubt, therefore, the finding of the learned trial Court based on proper appraisal of evidence merits no interference.

4. We have gone through the record carefully and considered the submissions made by the learned counsel for the parties.

5. The prosecution to prove its case examined as many as five witnesses. The main prosecution witnesses i.e. Pervez Shakeel, Muharrir (P.W.3) and Nasir Khan, IHC/IO (P.W.4) have contradicted each other in their respective cross-examinations e.g., Parvez Shakeel (P.W.3) stated in his cross-examination that: while Nasir Khan IHC (P.W.4) contradicted him by stating that:--

Likewise, Pervez Shakeel (P.W.3) in his cross-examination stated that:-- while Nasir Khan, IHC (P.W.4) contradicted him by submitting that:

Similarly, Parvez Shakeel (P.W.3) in his cross-examination stated that:--

While Nasir Khan, IO (P.W.4) contradicted him by stating that:-

There is also contradiction in timing of lodging of the F.I.R. and the writing of murasila etc. Faisal Nadeem, Muharrir (P.W.2) stated in his cross-examination that:--

According to the F.I.R., the time of occurrence was 1100 hours and incorporation of F.I.R. is 1130 hours, then, how it could be possible that Yasir Ali FC reached the Police Station along with murasila at 1115 hours, when the distance between the place of occurrence and the Police Station is about 1-1/2 furlong, that too, when the Investigating Officer himself admitted that he spent in all one hour in legal formalities and thereafter, he sent the murasila to the Police Station.

6. When the date of occurrence is 14-6-2008 and the Investigating Officer (P.W.4) had made recovery on the same date vide Exh.P.W.3/2, then why he didn't send the samples to the chemical examiner on the said date and sent the same with delay of about four days i.e. on 18-6-2010 is another question, which couldn't be plausibly explained by the prosecution, hence makes the recovery doubtful.

7. The vehicle, from which the recovery has been made, was not produced by the prosecution in the Court, which could show that whether there was some secret cavities in the rear seat of it or not and whether 12000 grams of `charas' can be concealed in those secret cavities. The prosecution has failed to explain as to under what circumstances, they could not produce the vehicle in Court, which further makes its case doubtful.

8. It is also not understandable that why the learned trial Court has awarded the maximum punishment to the appellant on the basis of his confessional statement, which could not be termed as confession so far as-recovery of narcotics is concerned. In his so-called confessional statement, appellant has never admitted that he had any knowledge about the narcotics or he was trafficking it from one place to another. His stance rather was that one Amal Khan gave him the motorcar for delivering it to one Akbar, who shall pay him Rs.2,000 for the job. For the facility of reference, the confessional statement of appellant is reproduced hereunder:--

From the above extract of the confessional statement of the appellant, it is crystal clearly that he only admitted the carrying of the vehicle from one place to another in lieu of Rs.2,000. Where the confession appears to be exculpatory and where the appellant has shown his total ignorance about the concealment of narcotics in the vehicle, we are of the view that in the circumstances of the case, concealment of narcotics with conscious knowledge cannot be attributed to the' appellant. Mere recovery of narcotics from a vehicle doesn't automatically connect the appellant with such contraband article, unless the prosecution succeeds in showing that he had conscious knowledge of it. In the cases, where narcotics is found lying concealed in a vehicle, not discoverable on mere inspection of the vehicle in absence of special knowledge about its concealment to recover it, mere presence of a person in such vehicle could not make him liable for conscious possession of such contraband article. It was the duty of prosecution to show that presence of narcotics was within the knowledge of accused 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. So, it can safely be said that the prosecution has miserably failed to prove its case beyond reasonable doubt.

9. For the reasons discussed above, this appeal is allowed. Conviction and sentence. of appellant Taj Akbar son of Gul Haider Khan recorded vide impugned judgment dated 8-9-2009 is set aside. He is acquitted of all the charges levelled against him. He be set free forthwith, if not required in any other case.

H.B.T./278/P Appeal allowed.