Muhammad Sajid Vs The State

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr. A No. 668-P/2025

Muhammad Sajid Vs The State

JUDGMENT

Date of hearing: 26.11.2025

Appellant by: Mr. Sohail Akhtar, Advocate.

The State by: Mr. Mushtaq Rahim, AAG.

SAHIBZADA ASADULLAH, J.- Through this single judgment, we shall also decide the connected Cr.A No. 807-P/2025 titled “Muhammad Faisal vs The State” as both the appeals are arising out of one and same judgment dated 24.06.2025 rendered by the learned Additional Sessions Judge-IX/ Judge Special Court, Mardan delivered in case FIR No. 41 dated 16.09.2024 under sections 9-D Control of Narcotics Substances Act (“the Act”) of police station Excise, District

Mardan, whereby the appellants were convicted and sentenced as follows: - U/s 9-(D) CNSA, 2019 to imprisonment for life each with a fine of Rs.500,000/- (rupees five lac) each or in default whereof to further suffer simple imprisonment for six (06) months each.

Benefit of section 382-B Cr.P.C has been extended in favour of the appellants.

2.The prosecution story as

contained in the murasila is that on 16.09.2024, complainant Inspector Ajmal Khan, reported the matter to the effect that he alongwith other police officials during routine gusht were present at the place of occurrence, when in the meanwhile, a white color Suzuki motorcar bearing registration No. LOQ-9840 coming from Nowshera Road was stopped for the purpose of checking; that the driver disclosed his name as Muhammad Sajid son of Wakeel Khan whereas, the front Seater as Muhammad Faisal son of Muhammad Ishaq;

that search of the motorcar led to the recovery of one white color plastic sack containing 12 packets chars Pukhta each weighing 1200/1200 grams total 14400 grams from its rear seat. The complainant separated 05/05 grams from each packet as test samples for chemical analysis whereas, the remaining chars was packed and sealed in another parcel hence, the present FIR.

3.After completion of

investigation, complete challan was put in court. Provisions of 265-C Cr.PC were complied with and the appellants were charge sheeted to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced and examined as many as 06 witnesses. After closure of prosecution evidence, statements of appellants were recorded under section 342 Cr.PC, wherein they professed innocence, however, neither they wished to be examined on Oath as required under section 340 (2) Cr.PC, nor wanted to produce evidence in defence. The learned trial Court, after full-fledged trial

convicted and sentenced the appellants vide the impugned judgment hence, this appeal.

4.Arguments heard and available record scanned through.

5.It is the case of the prosecution that during routine checking, a white motorcar bearing registration No. LOQ-9840 approached the spot and was signalled to stop. Upon its interception, the person driving the vehicle disclosed his name as Muhammad Sajid, while Muhammad Faizan was found seated on the front passenger seat. A search of the vehicle was thereafter conducted, during which huge quantity of narcotics weighing 14400 grams was allegedly recovered from the rear seat. Test samples were separated at the spot, while the remaining case property was duly packed and sealed into separate parcels. The accused alongwith the recovered contraband and the vehicle, were then taken to the police station, where the relevant entries were made in the prescribed registers. Subsequently, the test samples were forwarded to the office of the

Chemical Examiner. Upon completion of the trial, the learned trial court, having applied its judicial mind to the facts and circumstances of the case, found the accused guilty of the charged offence and accordingly recorded their conviction and sentence through the impugned judgment.

6.This Court is now called upon to examine whether the learned trial court correctly appreciated the evidence available on record and whether the prosecution succeeded in discharging the burden cast upon it by law. It is a well-settled principle that where an offence carries severe punishment, the prosecution is required to establish its case through cogent, independent, and confidence-inspiring evidence. The learned trial court is under an obligation to subject the entire evidence to the strictest scrutiny, so that criminal liability is fixed firmly, fairly, and beyond reasonable doubt. There is no dispute as to the fact that, at the time of interception, the vehicle was being driven by Muhammad Sajid, while

Muhammad Faizan was occupying the front passenger seat. However, the determinative question is whether mere presence inside the vehicle is, by itself, sufficient to fasten criminal liability upon either of the accused, particularly upon the driver, when the recovery was admittedly effected from the rear seat of the vehicle. Under the relevant provisions of the Act, the prosecution is required to prove not only physical custody but also conscious possession and conscious knowledge of the contraband. This Court must, therefore, examine what nexus, if any, has been established between the recovered narcotics and the accused; whether such knowledge can safely be attributed to both of them; and whether the evidence on record is sufficient to conclude, beyond doubt, that they were in conscious possession of the recovered substance. In order to properly appreciate these pivotal aspects, and to ensure that no miscarriage of justice is occasioned, it has become imperative for this Court to re-

evaluate the entire evidence on record with the utmost care.

7.The points for determination before this Court are whether the recovery of the contraband was lawful and legally sustainable; whether the prosecution has established the individual or joint liability of the accused; whether the chain of custody, from recovery to police station, and from there to the Chemical Examiner, has been duly proved and whether the prosecution has proved the guilt of the appellants beyond reasonable doubt.

8.In order to properly appreciate the attending circumstances of the case, this Court deems it essential to examine the statements of the prosecution witnesses and to assess whether the facts relied upon by the prosecution stand established. This includes determining whether both accused were, in fact, present in the motorcar at the time of interception, whether the vehicle was intercepted in the manner alleged, and whether the recovery of the contraband was

effected lawfully and in accordance with established procedure. Equally important is the need to evaluate whether the witnesses remained consistent on the material aspects of the prosecution case. For this purpose, the Court has examined the statements of the complainant, the marginal witness, the Moharrir of the police station, the police official who transported the test samples to the office of the Chemical Examiner, and the Investigating Officer. The complainant, examined as PW-01, narrated in detail the circumstances in which he intercepted the vehicle, signalled it to stop, deboarded the accused, effected the recovery of the narcotics, separated the test samples, arrested the accused, and sent the case property, alongwith the accused, to the police station through ASI Irshad Khan and another official, namely Siyab Nasir. The marginal witness, PW-2, corroborated the material aspects of the recovery. Both witnesses were subjected to lengthy cross-examination, during which the defence sought to extract contradictions

favourable to the accused. Upon careful perusal, it appears that there is no serious dispute that the vehicle was intercepted at the stated time and that the contraband was recovered therefrom. The crucial question, however, is whether the prosecution has established beyond reasonable doubt the safe custody of the recovered narcotics and the untampered transmission of the test samples, from the spot to the police station and then to the office of the Chemical Examiner. The witnesses regarding the recovery and transportation of the case property were generally consistent. Yet, a material discrepancy emerges upon examining the testimony of the official who transported the test samples to the Chemical Examiner. This witness stated that the samples were delivered on 16.09.2024, whereas the Moharrir of the police station testified that the samples were handed over on 18.09.2024. Even if this variation is considered minor, it casts doubt on the accuracy of official records and reflects adversely on the conduct of the police

officers. In cases carrying severe punishment, even such discrepancies cannot be lightly ignored, for they touch upon the reliability of the chain of custody. Another important aspect arises from the testimony of the Investigating Officer as during cross- examination, he could not satisfactorily explain the destination of the accused, nor could he establish how they obtained the vehicle. It is undisputed that the contraband was recovered from a sack lying on the rear seat of the car. Consequently, the prosecution bore the heavy burden of establishing conscious possession, conscious knowledge, and, where applicable, joint association of the accused with the recovered narcotics. It is further admitted that one accused resided in Qambar Khel, Bara, while the other resided in Railway Police Lines, Peshawar. Taking into account the geographical separation and distinct districts of residence, it becomes all the more essential for the prosecution to produce evidence showing a meeting of minds, or at least, how both accused had

knowledge of the narcotics in the vehicle. In the absence of such evidence, mere presence of the accused in the vehicle cannot, by itself, establish conscious possession or joint liability. The law is explicit, where severe punishment is prescribed, the standard of proof is correspondingly high. The prosecution witnesses were under a strict obligation to produce independent, reliable, and cogent evidence establishing safe custody, safe transmission, conscious knowledge, and conscious possession of the contraband. Failure to discharge this heavy responsibility necessarily gives rise to serious doubts, which, under settled principles of criminal jurisprudence, must go to the benefit of the accused.

9.There is no dispute, nor can it be denied, that the accused were apprehended from the motor car however, this fact, standing alone, is insufficient to hold the accused responsible for the commission of the offence. The prosecution remained under a strict obligation to establish to whom the

recovered contraband belonged, particularly where the recovery was not made from secret cavities, circumstances which might ordinarily be attributed to the driver or owner, rather from a sack lying openly on the rear seat of the vehicle. It is evident from the record that the appellants have not made any pointation regarding the presence of the sack.

The recovery memo similarly reflects that the contraband was discovered during a general search of the vehicle, rather than on the disclosure of either accused. Consequently, no presumption of exclusive knowledge can be drawn from the circumstances of recovery.

In such circumstances, it was incumbent upon the prosecution to establish, through cogent evidence, the material aspects i.e. the relationship and association between the two accused; the source or origin of the vehicle;

the origin of the narcotics; and any prior association between the accused suggesting a joint venture. When examined on these aspects, the complainant admitted his inability to provide such information.

Similarly, the Investigating Officer acknowledged that no evidence had been collected establishing a nexus between the accused, nor showing that they were previously known to each other, or were acting pursuant to a common design or shared intent. It was further admitted that one accused resided in District Khyber, while the other resided in District Peshawar, geographically apart. In the absence of evidence showing intimacy, association, or prior linkage, it was essential for the prosecution to establish how, where, and for what purpose the accused had come together.

In the absence of such evidence, the crucial question arises: to whom did the recovered narcotics belong? Had the contraband been recovered from the personal possession of either accused, attribution of liability would have been straightforward however, recovery from the rear seat, open to general view, required the prosecution to establish conscious possession, conscious knowledge, and joint association. It is a settled principle

that joint liability cannot be presumed merely from joint presence. The reasoning that both accused were in the vehicle and the narcotics lay on the rear seat, therefore both must be held responsible, is legally unsustainable unless supported by independent evidence of shared knowledge and conscious control.

With respect, the learned trial court appears to have adopted a simplistic approach, fixing joint liability without ensuring that the essential ingredients of such liability were satisfied. Unlike cases involving secret cavities, where liability may, in certain circumstances, be attributed to the driver, the trial court held both accused responsible primarily because the contraband was lying openly on the rear seat and both accused were present in the vehicle. It further appears that the magnitude of the recovery weighed heavily with the trial court. While the quantity of contraband is relevant, it cannot substitute for the legal requirement of proof, particularly when the consequence is life imprisonment. Where stringent punishment is

prescribed, the standard of proof is high, the degree of scrutiny heightened, and the duty to collect and assess evidence correspondingly grave. This case demanded careful inquiry into whether the accused shared a common purpose, acted pursuant to a common design, and exercised conscious dominion over the contraband. No such inquiry was meaningfully undertaken. The Investigating Officer admitted his inability to trace any relationship or prior association, and no evidence was produced to establish joint planning or knowledge. The contraband could plausibly have belonged to either accused individually, yet the trial court proceeded to fix joint responsibility. In our considered view, this approach does not accord with settled principles. The learned trial court appears to have taken the easiest course, influenced by the seriousness of the offence and the large quantity recovered, without fully appreciating that the inevitable consequence would be imposing life imprisonment upon two individuals without

meeting the requisite standard of proof.

Under criminal law, it is not the gravity of the allegation alone that governs the outcome, but the cumulative effect of all attending circumstances. Courts are duty-bound to determine liability only when conscious possession, knowledge, and ownership, whether individual or joint, are established through independent and reliable evidence, particularly where recovery is not from exclusive possession. Where these requirements are absent, courts must apply the settled principles governing joint liability with utmost caution in order to avoid miscarriage of justice. The bonafide of the prosecution witnesses are neither disputed, nor is this Court inclined to view their testimony with suspicion. The real question, however, is not one of credibility but of sufficiency: whether the evidence collected by them is adequate to establish the liability of both accused, particularly their responsibility for the narcotics allegedly recovered from the motor car, and whether

the prosecution has succeeded in proving joint association, joint venture, and common intention. The prosecution was under an obligation to show that the accused had jointly purchased the contraband, jointly transported it, and acted pursuant to a shared design, such that, upon successful completion, both would have been

beneficiaries. Yet, nothing on record substantiates this crucial aspect. Neither the complainant nor the Investigating Officer was able to adduce material confirming a prior association, a joint enterprise, or coordinated conduct between the accused. The

Investigating Officer admitted that he could neither ascertain any previous relationship between the two accused, nor obtain any call data or other evidence of connectivity between them. He further conceded his inability to determine with certainty from where the accused were coming or to where they were proceeding. In these circumstances, the crucial question is whether the doctrine of joint liability can lawfully be applied to the

facts of this case. If joint liability is inapplicable, the Court must next examine what, if any, inference can be drawn regarding the individual liability of each accused. It is true that one of the accused was driving the vehicle, and in cases of similar nature, the driver is sometimes held responsible on the premise of control over the vehicle. However, this principle cannot be applied here, as the recovery was not from a secret cavity but from a sack lying openly on the rear seat. The case involves two accused, hailing from different districts and different villages, with a single sack allegedly containing narcotics recovered from the rear seat. These circumstances required the trial court to carefully examine whether the principle of joint liability was attracted and whether both accused could lawfully be held responsible for the offence. Although the learned trial court invoked the doctrine of joint liability and convicted both accused, but it failed to articulate the legal tests applied. It did not explain how the essential ingredients

of joint liability, such as prior association, common intention, or shared enterprise, were established from the evidence. Upon reviewing the approach adopted by the trial court, we are persuaded that the requisite legal tests were not applied. The correct test, in the circumstances of this case, was to determine the existence of joint association, intimacy, or prior relationship between the accused. When the most material prosecution witness, the Investigating Officer, expressly denied the existence of such factors, the foundation for joint liability collapsed. It appears that the trial court, apprehensive of the large quantity of narcotics allegedly recovered from a vehicle occupied by both accused, opted to apply joint liability, rather than either acquitting the accused or fixing individual responsibility, so such an approach is legally unsustainable, hasty, and devoid of lawful justification. It disregards settled principles governing criminal responsibility and results in grave injustice, as both individuals stand sentenced to life

imprisonment without any clear

determination as to who possessed the contraband or who placed it in the vehicle. In these circumstances, the trial court was duty- bound to examine which of the accused, if any, could be connected with the recovered contraband. Since, the prosecution failed to collect evidence establishing joint association or individual culpability, the conviction cannot be sustained. Once the prosecution admitted its inability to trace evidence of association or connectivity, the Court is left with no option but to examine individual liability, an exercise which similarly yields no incriminating result. Where neither joint liability can be lawfully applied, nor individual liability established, the benefit of doubt inevitably arises. It is a settled principle that such benefit must be extended to the accused. Consequently, both appellants are entitled to the benefit of doubt, and the impugned judgment cannot be allowed to stand. In a case of “Tariq Mehmood vs The

State” reported in 2025 SCMR 780, the Hon’ble Supreme Court has held as under:

“We are of the considered view that this approach of the learned appellate court is a complete departure from the principles settled for the administration of justice in criminal cases.

According to these principles, once a single loophole/ lacuna is observed in a case presented by the prosecution, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused.

10.The attending circumstances of the present case leave this Court with no option but to hold that the prosecution has failed to prove its case against the accused, whether in respect of joint liability or individual culpability. Consequently, conscious possession cannot be attributed to either accused, nor can it be determined with certainty which of the two, if any, was in possession of the alleged contraband, particularly when it stands admitted on record that the accused were neither related to each

other nor shown to have any prior association.

The learned trial court failed to appreciate these vital aspects, and the impugned judgment is thus found to suffer from inherent legal and factual infirmities, warranting interference by this Court.

11.Resultantly, this and the

connected Cr.A No. 807-P/2025 titled “Muhammad Faisal vs The State” are allowed. The appellants are acquitted of the charge and shall be released forthwith, if they are not required in connection with any other criminal case.

Above are the detailed reason of short order of even date.

Announced

JUDGE

JUDGE

*Muhammad Fiaz* *D.B* Hon’ble Mr. Justice Sahibzada Asadullah, J Hon’ble Mr. Justice Dr. Khurshid Iqbal, J