Muhammad Qaim Jan Khan, J.--These are two criminal appeals under Section 48 CNSA filed by the appellants against their conviction and sentence recorded by Additional Sessions Judge X, Peshawar on 19,12.2006 vide which the appellants have been convicted under Section 9 CNSA and sentenced to life imprisonment each and also to pay fine of Rs,, 200,000/- each and in default to undergo simple imprisonment for six months. However, benefit of Section 382-B Cr.P.C. has, been given to both the accused appellants. As the two appeals (Cr. Appeal No, 820/2006 and J.Cr.
Appeal No, 2/2007) are arising out of the same single judgment, therefore, out this single order shall dispose of the two appeals filed by Islam Gul and Noor Islam.
2. Short facts of-the case are that On 14.8.2005 at 14.00 hours, Syed Usman Ali Shah,' SHO Police Station Hayatabad received information that huge quantity of nareotics would be smuggled through Motor Car No, LZH-3642, 2.D, Model 2004, white in colour. On this information, a public party was arranged and they had barricaded the road near Jamrud ChoId. At the relevant time, Motor Car No, LZH-3642 arrived on the spot which was signaled to stop but the driver accelerated the speed and ran away. The car was chased though public mobile and was overpowered/stopped near northern market, Phase,-1, Hayatabad, Peshawar. Two persons were sitting in the car. The driver disclosed his name as Noor Islam son of Nazir Gul resident of Anwar Khan Qilla, Shabqadar while his companions disclosed his name as Islam Gul son of Jalaluddin resident of Afghanistan presently living in Sardar Ahmad Jan Colony, Peshawar. On 30 bore pistol without number alongwith five live cartridges was recovered for the fold of Shalwar of Noor Islam while one 30 bore pistol without number alongwith four live cartridges was recovered from the fold of Shalwar of Islam Gul. On inspection of the car, ten bags were lying in the luggage boot (diggi) of the car and on search, nine bags were found full of Pukhta charas weighing 450 kg while, one bag was full or opium weighing 3 kg. 5/5 grams total 45 grams were taken from the charas while 5 gram from opium were taken as samples and sealed in parcels. Remaining narcotics were also sealed in separate parcels. The narcotics, pistols, live cartridge and motor car were taken into possession.
Accused were arrested on the spot and a case vide F.I.R. No, 663 dated 14.8.2005 under Section 9 CNSA was registered against them in Police Station, Hayatabad, Peshawar.
3. After completion of investigation, challan was submitted in Court. Accused were brought before the Court and formal charge was framed against them under Section 9 CNSA to which they pleaded not guilty and claimed trial. Trial commenced.
4. In order to prove its case, the prosecution examined Syed Manzoor Ali S.I. as P.W. 1, Javed H.C. 3127 as P.W.2., Fateh Roz Khan ASI as P.W. 3 after which the prosecution closed its case. Abdul Karim Khan DFC-1912 was examined as SW-1. Accused Noor Islam was examined under Section 342 `Cr.P.C. He pleaded innocence but he nether produced by defence nor wishes to be examined on oath. Accused Islam Gul was also examined under Section 342 Cr.P.C. and he produced on Hazrat son of Pazwan as D.W.1 in defence. Consequently after hearing the prosecution and defence, the trial Judge passed the aforementioned conviction and sentence.
5. Counsel for the appellants mainly argued that appellants were not aware of the narcotics placed in Diggi as appellant Noor Islam used to bring non-customs paid vehicles from tribal area to settled area while accused Islam Gul is a petty Gandamar who sells cut pieces of foreign cloth and brings the same from tribal area to settled area. Further argued that I.O. has not been produced and no comity of interest is apparent for the record. Further argued that samples have not been separated from each, packet and that it is the quality and no quantity of evidence which matters in criminal cases. It was argued that conscious knowledge is not established and this is also not clear as how many slabs were in each bag.
6. Counsel for the appellant Islam Gul mainly argued that mere presence of the appellant in vehicle cannot term him as accused and noting is proved against his client.
7. On the other hand, learned State counsel mainly argued that ordinary criminal cases should not be compared with narcotics cases. That huge quantity of 450 kgs of Pukhta charas and 3 kg opium have been recovered from the two appellants. Further argued that possession is proved and is fully corroborated by the P.Ws. That the accused in their statements admitted their presence and the recovery and onus has been shifted to them and the accused failed to discharge the said onus.
Further argue that such huge quantity cannot be planted by the police. There is no enmity on the record between the police and the appellants and that the accused appellants are known to each other. Further argued that narcotics is a menace to the whole society.
8. We have heard counsel for the appellants and the state at length and have also perused the relevant record.
9. Admittedly, the prosecution witnesses were up to lengthy and strenuous cross-examination but nothing came out from their mouth which can favour the accused. Although there seems minor concessions by the PWs. but that will not mar the prosecution case. On the other hand, the appellants accused in their own statements admit their presence in the car, recovery has been made in their presence and in the presence of the marginal witnesses. Huge quantity of narcotics i,e,450 kg. Pukhta charas and 3 kg opium have been recovered from the boot of the car which was driven by appellant Noor Islam. It is not appearing to the common sense that a driver driving a vehicle would not have checked his diggi, So far as -the case of Noor Islam appellant is concerned the prosecution has proved its case beyond any doubt against him.
10.As far, as Islam Gul is concerned, from a bare perusal of the record, it seems that he is a mere lift taker as is as a Gandamar who brings small pieces of foreign cloth from tribal area to settled area and seeing a friend got lift from him. He also produced one Hazrat son of Pazwan as D.W.1. whose statement has not been shattered by the prosecution. So to our humble mind, the appellant accused Islam Gul present in the same car although known to the driver seems not connected with the offence.
11. In this background of the case, we accept Cr. Appeal No, 820/2006 filed by appellant Islam Gul and exonerate him of the charge. He be released forthwith if not required in any other case. Jail Cr.
Appeal No, 2/2007 filed by Noor Islam is dismissed and his conviction and sentence are maintained.