' MUHAMMAD QAIM JAN KHAN, J.-These are two criminal appeals under section 48 C.N.S.A. Filed by the appellants against their conviction and sentenced recorded by Additional Sessions Judge-X, Peshawar on 19-12-2006 vide which the appellants have been convicted under section 9 C.N.S.A.
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 (Criminal Appeal No,820 of 2006 and Jail Criminal Appeal No,2 of 2007) are arising out of the same single judgment, therefore, our 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 1400 hours. Syed Usman Ali Shah, S.H.O. Police Station Hayatabad received information that huge quantity of narcotics would be smuggled through Motorcar No,LZH-3642, 2.D, Model 2004 white in colour. On this information, a police party was arranged and they had barricaded the road near Jamrud Choki. At the relevant time, Motorcar 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 through police mobile and was overpowered/stopped near northern market, Phase-I, Hayatabaad, 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 companion disclosed his name as Islam Gul son of Jalaluddin resident of Afghanistan presently living in Sardar Ahmad Jan Colony, Peshawar . One .30 bore pistol without number along with five live cartridges was recovered from the folds of Shalwar of Noor Islam while one .30 bore pistol without number along with 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, ten bags were found full of Pukhta chars weighing 450 Kgs. While one bag was full of opium weighing Kg. 5/5 grams total 45 grams were taken from the chars while 5 gram from opium were taken as samples and sealed in parcels. Retaining narcotic were also sealed in separate parcels.
The narcotic pistols, live cartridges and motor car were taken into possession. Accused were arrested on the spot and a case vide F.I.R. No,663 dated 14-8-2002 under section 9 C.N.S.A. 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 C. N.S.A. 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/S.I. As P.W.3 after which the prosecution closed its case. Abdul Karim Khan DFC-1912 was examined as S.W.1. Accused Noor Islam was examined under section 342, Cr.P.C. He pleaded innocence but he neither produced any defence nor wished to be examined on oath.
Accused Islam Gul was also examined under section 342, Cr.P.C. And he produced one 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 Investigating Officer, has not been produced and no comity of interest is apparent from the record. Further argued that samples have not been separated from each packet and that it is the quality and not 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 nothing 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 chars and 3 Kgs.
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 argued that such a 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 put 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 P.Ws. But that will not mare the prosecution case. On the other hand, the appellants accused in their own statements admitted 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 Kgs. Pukhta chars and 3 Kgs. Opium have been recovered from the boot of the car which was driven by appellant Noor Islam. It is not appealing to the common sense that a driver driving a vehicles 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 he is 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 Criminal Appeal No,820 of 2006 filed by appellant Islam Gul and exonerate him of the charge. He be released forthwith if not required in any other case. Jail Criminal Appeal No,2 of 2007 filed by Noor Islam is dismissed and his conviction and sentence are maintained.