Ijaz-ul-Hassan, J.--This Criminal Appeal is directed against the judgment dated 9.2.2005, passed by learned Additional Sessions Judge, Kohat, whereby he convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life with a fine of Rs. 1,00,000/- and in case of default in payment of fine to further undergo six months S.I. The appellant was also given benefit under Section 382-B Cr.P.C.
2. The facts which led to this appeal are, that on receipt of prior information on 14.2.2002 by the Customs officials, regarding smuggling of huge quantity of contraband charas by an international gang of, smugglers, from 'Maga ghair' to Karachi via Kohat D.I.Khan, through motor car bearing fake registration No. 5395-A Peshawar, two raiding parties were constituted for the purpose of arrest of the accused. The parties laid `Naka bandies' at Gulshan Abad Chowk Kohat and near KDA Kohat. At about 10.30 'hours, the pointed motor car was sighted coming. A signal was given, to the driver to stop the car but he did not care and accelerated the speed. The raiding parties chased the car. Near MP gate Kohat, the car while negotiating a turn, collided with a Suzuki pick up and hit a wall and stopped. The driver of the car succeeded to make good his escape in the nearby `Abadi'.
A person was found sitting on front seat of the car. On enquiry he disclosed his name and parentage as Aamir Khan son of Lal Bakhil, resident of Torkhel Atari Qamber Khel Bara Khyber Agency. The search of the car led to recovery of contraband charas from its secret cavities. The charas was weighed and found 586 K.Gs. Out of the seized property, ten grams each was separated, sealed into a parcel and sent to the office of Chemical Examiner, Peshawar for analysis.
The remaining was also sealed in separate parcels. The accused was arrested and a case was registered under Section 9(c) of Control of Narcotic Substances Act, 1997, vide FIR No.18 dated 14.2.2002, Police Station Customs, Kohat.
3. The Investigating Officer after completion of Investigation submitted the challan before the learned trial Court. Formal charge was framed. The accused pleaded not guilty and claimed trial.
The prosecution during trial examined four witnesses viz Muhammad Yaseen (PW.1), Incharge Stateware House, Kohat, Constable Aqleein Dad (PW.2), Inspector Khawa Muhammad Iqbal (PW.3) and Inspector Sher Dad Wazir (PW.4). The accused also got recorded his statement under Section 340.(2) Cr.P.C. He did not produce evidence in his defence. In answer to a question, as to what is your statement and why are you charged', he gave the following reply:-- "I am innocent and has falsely been implicated in this case. 1 have studied upto primary 2nd class. I am labourer by profession on daily wages. Before the, occurrence, I was working/labouring at Peshawar. There were abundance of Afghan Refugees at Peshawar. Then I came to Kohat and was labouring in KDA surrounding of Kohat city since for the last three months before the occurrence. I usually stayed in mosque and in the occurrence, I could not get work at KDA. I stated to Kohat city for labour when I reached near MP Gate, Kohat in the meanwhile, a car was being chased by the Customs officials and the said motor car collided with the Suzuki Excise staff and customs other staff arrived to the spot. The driver of the said motor car decamped from the spot. I alongwith 4/5 other persons were arrested from the spot on suspicion and were put in an official vehicle and were taken to the customs office at Kohat. We were interrogated one by one. All the other arrested accused were let free by the customs officials one by one. I was also released but when I came to Customs Gate, it was evening time, I was again summoned by the customs sepoy to the office where I heard the customs officials saying that some one is to be shown arrested in the instant case. On their direction, I was again arrested in this case. My father is an aged person and is of unwound mind. He cannot work. I am a poor fellow. Neither I am owner of same vehicle nor does the seized good belong to me. I have been involved previously in such like cases of narcotics or any criminal case throughout my life. I am in judicial up for the last three years in this case."
4. Considering the material available on record, learned trial judge found the appellant guilty of the offence and convicted and sentenced him through the impugned judgment as mentioned and detailed above.
5. Learned counsel for the appellant Mr. Noor Alam Khan, Advocate, contended that case against the appellant is made up and motivated by malice; that actual culprit i.e. driver of the car was let off and the appellant was implicated in the case; that the prosecution did not succeed to prove that the appellant had the knowledge that contraband material was concealed in the secret cavities of the motor car and prosecution has not produced evidence to demonstrate that it was in the exclusive knowledge of the appellant that charas was kept in the car in question; that the recovery is doubtful as the mandatory requirements of Section 103 Cr.P.C. had not been complied with by the Investigating Officer and the witnesses being officials of Customs Department cannot be relied upon in the circumstances of me case; that the case property has not been produced in the Court during the trial nor the destruction certificate has been proved; that the appellant was neither owner of the vehicle nor the alleged recovery was effected on the pointation of the appellant and that the appellant was convicted on very highly flimsy, doubtful and interested witnesses of prosecution. In this regard, reliance was placed on Johar Ali and another Vs. The State (2003 PCr.LJ 680 Peshawar), Muhammad Uzair Siddiqui Vs. The State (PLD 2005 Peshawar 81).
6. On the contrary, Mr. Salahuddin, learned Deputy Attorney General, representing the State, supported the impugned judgment of conviction, maintaining that sufficient material has been brought on the file to connect the appellant with the commission of offence and the plea raised by the appellant is an after thought and cannot be taken into consideration. The defence plea appears not only unnatural but also unbelievable being unsubstantiated through any corroborative evidence. To argument the contentions, he placed reliance on Fida Muhammad Vs. The State (2006 P.Cr.L.J. 316 Peshawar).
7. The prosecution in order to prove the apprehension of the appellant and recovery of contraband charas from the secret cavities of the car in question, has produced two witnesses, namely, Constable Aqleem Dad (PW.2) and Inspector Khawaja Muhammad Iqbal (PW). The former is one of the marginal witnesses of the recovery memo through which the contraband charas was taken into possession, whereas the latter is the Investigating Officer. We have noticed that though these witnesses were subjected to lengthy and searching cross examination, but nothing favourable could be gained from them. They are consistent on all material particulars and their statements are worthy of credence. The contention of the learned appellant's counsel that the appellant is innocent and falsely charged in the present case, has no substance as he could not show that the, statements of these witnesses were motivated by or enmity towards the appellant.
The testimony of these witnesses inspires confidence and has been rightly relied upon by the trial Court. The learned counsel has not been able to point out any discrepancy or flaw creating dent in the prosecution story. The discrepancies highlighted by the learned counsel in the statements of prosecution witnesses, are minor in nature and cannot be considered sufficient to vitiate the trial.
8. The contention of the learned counsel that the recovery was not witnessed by person from public, we may observe that Section 25 of the Control of Narcotic Substances Act, 1997, excludes the application of Section 103 Cr.P.C. Sardar Khan.. Vs.. The State (PLD 2005 Peshawar 167).
9. Learned counsel for the appellant next contended that neither the case property was produced in Court nor destruction certificate was placed on file nor the question regarding destruction of case property was put to the appellant during his examination. The contentions of the learned counsel have no substance at all. Non-production of destruction certificate at the trial had not prejudiced the case of the appellant in any manner, which at ,the most could be considered as an irregularity curable under Section 537 Cr.P.C. and would not affect the factum of recovery from the motor car under reference. In this view of the matter, we are fortified by the observations made by this Court in Wajid Ali Shah Vs. State (2002 MLD 1982).
10. Adverting to the plea raised by the appellant regarding his innocence and false implication, it is settled law that when /ceased takes a specific plea, the onus shifts on accused to prove such plea. The mere assertion of the appellant that real culprit i.e. driver of the car was allowed to slip away by the custom staff and the appellant was involved in the case, without a positive attempt on his part to substantiate the same, is of no consequence.
11. The provision of Section 29 of the Control of Narcotic Substances Act, 1997, raises a legal presumption against an accused person found in possession of narcotics until the contrary is proved.
12.In the case of Ibrahim Hussain Vs. The State (2005 SCMR 1487), while considering the legal import of Section 29 of the Act, it was held:-- "Ss. 9 (c) & 29 (d)--Presumption--Failure to discharge the burden of proof of recovery against accused--Recovery of one kilogram and forty grams of Charas--Accused was employee at octroi post and narcotics was recovered from him at the post--Trial Court convicted accused but sentence of fourteen years of imprisonment awarded by trial Court was reduced to seven years by High Court--Plea raised by the accused was that he recovered the narcotics from a person who managed to escape and he prepared a report regarding octroi evasion--Validity-- Presumption under S. 29(d) of Control of Narcotic Substances Act, 1997, would be that the person who was found in-possession of narcotics had committed an offence unless otherwise proved--Accused failed to discharge the burden to show that he was not in possession of the narcotics and he simply relied upon the report prepared by him--Accused was rightly found guilty of the commission of offence and judgment being unexceptionable admitted no interference by Supreme Court--Leave to appeal was refused."
13. Having considered the matter from all angles, in the light of the material on the file, we are satisfied that the prosecution had proved the guilt of appellant beyond all reasonable doubt and had successfully discharged its burden through consistent and confidence inspiring evidence. It was his statutory burden under Section 29 of the Act to have discharged through cogent evidence in order to prove him innocent. We are unable to understand why the appellant was falsely implicated in the above case, particularly in an incident where high custom officials, while acting on spy information, were performing official duties, having no animosity with appellant. His simple denial and allegations against the custom officials of false involvement is not enough to exonerate him from the charge and discharge him from the statutory burden. Huge quantity of charas his been established through cogent and convincing evidence. The contraband charas was hidden in the secret cavities. It is difficult to believe that the appellant had no knowledge 6f the contraband charas and was totally unaware of it.
14.For the reasons mentioned above, the appellant has rightly been found guilty for the commission of the offence and the impugned judgment being unexceptionable admits no interference by. this Court. The appeal fails, which is hereby dismissed. The impugned judgment of conviction is maintained. However, benefit admissible under Section 382-B Cr.P.C. shall remain available to the appellant.