SARWAR vs STATE

' TARIQ PARVEZ KHAN, J.--- On 10-9-2000 at 1-30 p.m. While conducting regular checking, Mir Badshah, Inspector Police Station ANF checked Bus No,DNC-2555 at Kotal Check Post. A wooden box was lying on the roof of the bus, the same was suspected and was brought down from the roof of the bus. When the passengers of the bus were asked about the ownership of the box, appellant, Sarwar, is alleged to have claimed its ownership. It is the case of the prosecution that with the key supplied by Sarwar appellant the box was unlocked which was apparently empty but in its secret cavities it contained ten packets of Charas each weighing 1050 grams. The samples were sent to the laboratory for chemical analysis, the report whereof is Exh.P.F. And is in positive.

' During investigation appellant was produced before Mr. Attaur Rehman, Judicial Magistrate on 14- 9-2000 who recorded his confessional statement Exh.P.W.4/3.

2. Case of the accused was sent up for trial to the Court of learned Judge Special Court CNS, Camp Kohat and vide judgment impugned the appellant was found guilty under section 9(c) of the CNS Act, has been awarded sentence of life imprisonment and to pay Rs,One million as fine with benefit of section 382-B, Cr.P.C.

3. The allegation against the appellant is that while travelling in a bus Charas was recovered from a wooden box of which he has claimed the ownership and which box was unlocked through key supplied by him.

4. It is argued on behalf of the prosecution that looking at the volunteer behaviour of the appellant admitting the ownership of the box, production of its key read with confessional statement Exh.P.W.4/3, the possession of narcotic stands proved and appellant is rightly held guilty.

5. Learned counsel appearing for the appellant, however, controverted the charge and states that the narcotic was not recovered from the immediate possession of the appellant, that once the box' was suspected by the ANF Staff no sane person would accept its ownership nor would produce the key to unlock it, that as per statement of Mir Badshah (P.W.3) and Muhammad Qadir Khan (P.W.5) it was the conductor of the bus who disclosed the ownership of the box and such conductor has not been examined by the prosecution.

' It is argued that the perusal of confession would show that it is totally exculpatory and at no stage the appellant has admitted his knowledge regarding contents of the box.

6. After hearing learned counsel for both sides and after we have gone through the evidence minutely, the recovery of contraband from a wooden box cannot be denied. Question, however, would be whether the said box was under the control and possession of the appellant and even if the reply is in affirmative the second question would be whether he was in the knowledge that the box contained narcotic?

7. From the statement of Mir Badshah (P.W.3) it is clear that he has admitted in cross-examination that it was correct that one Aitibar Gul the absconding accused was the real person who is the owner of the Charas. He also admits that Aitibar Gul is a notoriously known person. He also admits that during interrogation the stand taken by the appellant was that he was brought to the bus stand by said Aitibar Gul who also arranged ticket for Sarwar accused-appellant.

8. Admissions so made by P.W. Mir Badshah find total corroboration from confession of the accused-appellant even if such confession is taken as confession.

' It is the statement of the confessing accused that he was approached by Aitibar Gul the absconding accused who informed him that he has arranged an appointment as Watchman for him in Hyderabad, Sindh and that when they both were to board the bus, at the eleventh hour Aitibar Gul slipped away and got loaded the wooden box in the bus. Such confession is totally silent regarding knowledge of the appellant as to what was contained in the box.

9. Where confession appears to be exculpatory and where the appellant has shown his total ignorance about the contents of the wooden box and where such version is supported by the Investigating Officer, we doubt that whether in the circumstances possession of the narcotic with conscious knowledge can be attributed to the present appellant. While so doubting the conscious knowledge of the appellant regarding presence of narcotic in the box and in addition keeping in view that appellant was definitely a man of advance age i,e, more than seventy years and when there is no evidence that appellant himself is involved in drug trafficking as against evidence that it is Aitibar Gul who is a drug dealer, the benefit of doubt is extended to the appellant. His conviction and sentence recorded by learned Special Judge (CNS), Kohat are set aside and he is acquitted of the charge. He be set at liberty forthwith, if not required in any other case.