Sheraz Khan Vs The State

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

Cr.A No. 402-P/2025

Sheraz Khan... ...............................Appellant Vs The State.......................................Respondent Present: Mr. Nasrum Minallah, Advocate for the appellant.

Mr. Muhammad Khalid, Special Prosecutor ANF.

Date of hearing: 07.10.2025

JUDGMENT

MUHAMMAD IJAZ KHAN, J.- Through this appeal, appellant namely Sheraz Khan son of Jawaz Khan has called in question the order and judgment of his conviction and sentence passed by the learned Addl:

Sessions Judge-I/ Judge Special Court, Kohat dated 19.03.2025, vide which appellant was convicted under Section 9-D/17 of The Control of Narcotics Substances Act, 1997 and sentenced to rigorous imprisonment (R.I) for life along with fine of Rs.

5,00,000/- (Five Hundred Thousand only). In default of payment of fine, appellant has further to suffer simple imprisonment (S.I) for a period of six (06) months. Benefit of section 382-B Cr.PC was extended to the appellants.

2.As per prosecution story as set in the murasila, is that on 09.02.2020, at the relevant time, the complainant, Jawad Altaf Raja received spy information regarding the transportation of narcotics in a tanker. Acting on this, the complainant along with other personnel of Excise Police laid a barricade on the spot, when in the meanwhile, an orange color oil tanker reached there, which was signaled to stop. The driver and the front seater were deboarded, who respectively disclosed their names as Muhammad Sheraz Khan and Muhammad Zubair. After cursory interrogation, the front seater, namely Muhammad Zubair revealed that “Charas” and “Heroin” have been concealed in the secret cavity made in the space between the connecting pin and the engine of the vehicle. The pointed location of the vehicle was opened, which led to the recovery of 44 packets of contraband, wherein, 35 packets Charas each weighing 1200 grams, total 42 KG and 09 packets heroin weighing 1000 grams each, total came out to be 09 KG were found. Out of the recovered stuff, 10 grams Charas and 10 grams heroin were separated from each packet for FSL and sealed into parcels, while, the remaining stuff was sealed into separate parcels by

affixing monogram on each parcel. ‘Murasila’ was drafted which was later-on reduced into FIR No.

02/2020 dated 09.02.2020 registered under section 9- C, 14/15, of The Control of Narcotics Substances Act, 1997 at Police Station, ANF, Kohat.

3.After completion of investigation, complete challan was submitted before the Court u/s 173 Cr.PC.

The appellant then accused was summoned by the learned trial Court and charge was framed against him, to which he pleaded not guilty and claimed trial. The prosecution was invited to produce its evidence, who accordingly examined as many as six (06) witnesses in support of the case. Thereafter, statement of accused was recorded under section 342 Cr.P.C and on conclusion of the trial in the case, the appellant was convicted and sentenced by the Court of learned Addl:

Sessions Judge-I/ Judge Special Court, Kohat vide the impugned order/ judgment dated 19.03.2025. The appellant has now challenged the aforesaid judgment by filing the instant appeal before this Court.

4.It would be relevant to mention here that after full-fledged trial the co-accused namely Muhammad Zubair, who was the front-seater has filed criminal appeal No. 403-P/2025, however, during pendency

of the said appeal, the said Zubair has died, therefore, to his extent his appeal No. 403-P/2025 was abated by this Court vide order dated 04.06.2025, whereas, the appeal No. 402-P/2025 of the present appellant is to be decided through the instant judgment.

5.Arguments of learned counsel for the appellant as well as learned Special Prosecutor, ANF were heard in considerable detail and the record perused with their able assistance.

6.It is the case of prosecution as set up by P.W 4, Jawad Altaf Raja in Murasila (Ex-P.A) that on the date and time of occurrence, he was present in the police station when he received credible information from an informer that one Zubair Afridi and Sheraz Khan would smuggle a huge quantity of narcotics through a tanker to Karachi, and as such acting on the said information he along with other police personnel laid nakabandi at the place of occurrence, when in the meanwhile, the said orange color tanker appeared, which was signaled to top and the two persons were deboarded. The person who was on the driving seat disclosed his name as Sheraz Khan s/o

Jawaz Khan (present appellant) whereas, the front seater disclosed his name as Zubair and on further interrogation, the said front seater introduced himself as the owner of the said tanker and then he also disclosed that he has made secret cavity in the tanker, where the contraband are present and as such, on the opening of the said secret cavity 44 packets were recovered, out of them, 35 packets were of Charas, whereas, 09 packets were of heroin. On weighment, the Charas turned out to be 42 KG, whereas, the Heroin turned out to be 09 KG and after preliminary formalities i.e. separation of samples, preparation of parcels and drafting of Murasila, the Murasila was sent through constable Mr. Faheem Ullah, hence, the instant FIR.

7.Before analyzing the legal and factual aspects of this case, it would be relevant to mention here that mere possession of the contraband, as envisaged under section 9 of The Control of Narcotics Substances Act, 1997, is not an offence but such possession must be in the conscious knowledge of the accused. It would be relevant to mention here that conscious knowledge means that the accused knew about the presence of the narcotic substance in his possession/ custody or control

or if the contraband is found near a person or in the vehicle in which he is travelling and the prosecution has to show that the person was aware of its presence.

As against this, if a person had no knowledge that Narcotic were in his bag, car or premises, then the criminal intent i.e mens rea would be missing and thus in such eventuality, neither the conviction could be awarded nor the same could be sustained. With this legal and judicially approved concept, now this court proceeds to analyze the evidence produced by the prosecution.

8.In order to prove the levelled allegations, as set by the prosecution in the Murasila (Ex-P.A), the prosecution has produced as many as six (06) witnesses, however, mere reading of the Murasila (Ex-P.A), would show that at the time of alleged recovery from the tanker, the present appellant was on the driving seat, and he was also accompanied by the owner of the said tanker namely Muhammad Zubair, the co-accused and it is very much spelling out from the contents of the Murasila (Ex-P.A) that it was the co- accused, Muhammad Zubair, who introduced himself to be the owner of the vehicle and who also disclosed to the seizing officer that he has made secret

cavity in the said tanker and as such on his pointation the alleged contraband has been shown recovered from the said tanker, therefore, in the given facts and circumstances, we confronted learned Special Prosecutor, ANF namely, Muhammad Khalid that whether the prosecution has been able to prove that as to whether the present appellant was having any conscious knowledge of the contraband concealed in the secret cavity of the said tanker or not, however, he was unable to make reference to any such material or evidence, so as to prima facie establish any mens-rea or conscious knowledge on the part of the present appellant.

9.The record would further show that two important prosecution witnesses namely Faheem Khan, who was present on the spot at the relevant time and he was also shown as marginal witness to the recovery memo Ex-P.W 4/1 and the seizing officer namely Jawad Altaf Raja, who has appeared in the witness box as P.W-4 have categorically admitted that when the subject vehicle was signaled to stop, it was the co-accused namely Muhammad Zubair, who introduced himself to be the owner of the said tanker and it was the said Muhammad Zubair, who disclosed the existence of secret cavity

and the presence of contraband therein and both these P.Ws have not uttered a single word with respect to the present appellant qua his disclosure or pointation of any contraband, therefore, it is spelling out from their statement as well that in fact the contraband was in the conscious knowledge of the co-accused Zubair, who also happened to be the owner of the vehicle. It is also part of the record and as spelling out from the very contents of the Murasila Ex-P.A as well that the co-accused Muhammad Zubair, has introduced himself as the owner of the vehicle, however, as per the seizing officer P.W-4, the brother of the co- accused Zubair is registered owner of the said vehicle and thus, it is proved beyond any doubt that the said vehicle belongs to the co-accused Muhammad Zubair or his brother, as the case may be.

10.It may be reiterated that generally, in Narcotic cases when recovery is effected from the secret cavities of a vehicle then the driver of the vehicle is to be considered in the conscious knowledge of the contrabands, so recovered from the secret cavities of the vehicle, however, this case is a classical example of exception to the said established principle as as stated hereinabove that at the relevant time the present

appellant was though on the driving seat but the owner of the vehicle namely Zubair (who has died during pendency of this appeal) was accompanied the appellant and it was the said co-appellant, who introduced himself to be the owner of the said vehicle and who also disclosed to the seizing officer that there is secret cavity in the vehicle and presence of contraband in the same. It is also an admitted fact that the said recovery has not been made from a visible place of the said tanker rather the same has been made from the secret cavities. It is also an admitted fact that it was the co-accused Muhammad Zubair, who owned the vehicle, the making of the secret cavity as well as the recovery of contraband on his pointation, therefore, it is evident that it was the co-accused Muhammad Zubair, who was in the knowledge of the said contraband. In a case 1, the apex court has adjudicated that, it has been pointed out before us that according to the evidence brought on the record Abdul Sattar appellant also knew about existence of a cavity in the body of the relevant vehicle but nothing had been said by any prosecution witness about the said appellant having the requisite knowledge “Hussani Shah and others Vs. the State, reported as PLD 2020 Supreme Court, 132.

about availability of narcotic substance in such cavity of the vehicle. As a matter of fact, no evidence worth its name had been brought on the record to establish that the said appellant was conscious about availability of narcotic substance in a secret cavity of the relevant vehicle in which he was traveling along with its driver. The law is settled by now that if the prosecution fails to establish conscious possession or knowledge in this regard then a passenger cannot be convicted solely on the basis of his availability inside a vehicle at the relevant time. Similarly, in another case2, the apex Court has held that, it is also the prosecution's own case that nothing had been recovered from the appellant's physical possession and that the narcotic substance and weapons recovered in this case had been recovered from some secret cavities of the motorcar and also from the boot of the same. The law on the subject is quite settled that mere presence of a person in a vehicle cannot be treated as sufficient to saddle him with the responsibility of possession of narcotic substance recovered from the vehicle unless the prosecution establishes through independent

“Mst. Jameela and another Vs. the State” reported as PLD 2012 Supreme Court, 369

evidence that such person was conscious and aware of availability of narcotic substance in the vehicle.

11.It would also be not out of place to mention here that since Control of Narcotics Substances Act, 1997 provides for harsher and harder punishment, therefore, the prosecution is correspondingly bound to prove its case as per the required standard of proof. The prosecution is equally bound that it has not only to prove that the accused was in possession of the contraband but it has also to prove that he was in the conscious knowledge of the same and thus, if the prosecution fails to prove this essential ingredient of the offence, i.e. mens rea/ conscious knowledge then in such eventuality, the punishment as provided for in the Control of Narcotics Substances Act, 1997 could not be awarded. In a case3, the apex court has held that in a stringent law such as the CNSA, where capital punishment or imprisonment for life can be awarded even on the testimonies of police officials, in order to bring home guilt against an accused, it is necessary for the prosecution to prove their case through reliable, unimpeachable, and confidence-inspiring evidence “Ahmad Ali and another Vs. the State” reported as 2023 SCMR 781

beyond any reasonable doubt. The harder the punishment, the stricter the standard of proof. In this regard, reliance can be placed on the judgment of this Court reported as Ameer Zeb v. The State (PLD 2012 SC 380), where it was observed that:

"Punishments provided in the Control of Narcotic Substances Act, 1997 were quite stringent and long, if not harsh, and, thus, a special care had to be taken that a court trying such an offence had to be convinced that the entire quantity allegedly recovered from the accused person's possession was indeed narcotic substance. We, reverently and respectfully, tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: "The harsher the sentence the stricter the standard of proof." (Underling is provided by us for emphasis.)

In the said Ameer Zaib's case it was also observed by the apex court that:

"We may also observe that in such cases it is the accused person who is at the receiving end of long and stringent punishments and, thus, safeguards from his point of view ought not to be allowed to be sacrificed at the altar of mere comfort or convenience of the prosecution."

12.It is settled law since long that even a single doubt or single circumstance which creates doubt in the mind of a prudent man is sufficient for the acquittal of an accused person. In the case 4, the Hon’ble Apex Court has held that for the accused to be afforded the “Saghir Ahmed vs. The State and others” reported as 2023

SCMR 241.

right of benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner. Similarly, in the case5, the Hon’ble Apex Court has held that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable; trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt. Likewise, in the case 6, the Hon’ble Apex Court has held that Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence and any doubt arising in prosecution's case is to be “Bashir Muhammd Khan v/s The State” reported as 2022

SCMR 986

“Muhammad Samiullah vs. The State” reported as 2022

SCMR 998.

resolved in favour of the accused. In the case 7, the Hon’ble Apex Court has reiterated the same rational by observing that in these circumstances, a dent in the prosecution's case has been created, benefit of which must be given to the appellant. It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Reliance could also be made on the following judgments; -

(1)“Amir Muhammad Khan v/s The State” reported as 2023 SCMR 566.

(2)“Sarfaraz and another v/s The State” reported as 2023 SCMR 670.

(3)“Muhammad Ashraf alias Nikka v/s The State reported as 2022 SCMR 1328.

(4)“Kashif Ali alias Kalu v/s The State and another reported as 2022 SCMR 1515

(5)“Tajamal Hussain Shah v/s The State and another reported as 2022 SCMR 1567.

13.For what has been discussed above, this court is of the firm view that the prosecution has failed to prove its case against the appellant beyond reasonable “Khalid Mehmood alias Khaloo v/s The State” reported as 2022 SCMR 1148,

doubt, therefore, his conviction cannot be maintained.

Resultantly, while extending him the benefit of the doubt this appeal is allowed and the impugned order/ judgment of conviction and sentence dated 19.03.2025 recorded by the learned trial Court is set aside and consequently, the appellant is acquitted of the charges levelled against him.

Above are the detail reasons of our short order of even date.

Announced on:

(Sher Hassan)

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(D.B) Hon’ble Mr. Justice Sahibzada Asadullah J, & Hon’ble Mr. Justice Muhammad Ijaz Khan, J