Shahji Rehman Khan, J.--By this single judgment we intend to dispose of (i) Criminal Appeal No, 358/2006 (Faheed Gid alias Fareed Gul vs. The State) & (ii) Criminal Appeal No, 395/2006 (Wali Gul vs. The State) because; similar points of facts and law are involved therein and these Criminal Appeals have arisen out of the same judgment of the trial Court dated 1.06.2006.
2. Convict-appellants namely, Faheed Gul alias Fareed Gul son of Zafar Gul and Wali Gul son of Ziarat Gul were charged for the possession of 398 kilogram charas pukhta vide case FIR No, 26 dated 04.08.2004 registered under Section 9(C) of the Control of Narcotic Substances Act, 1997 at Police Station A.N.F, Peshawar. Both of them were tried by the learned Special Judge (CNS), Peshawar, who vide his impugned judgment dated 01.06.2006 convicted the appellants under Section 9(C) of the Control of Narcotic Substances Act, 1997 and sentenced them to Life Imprisonment with a fine of Rs,5,00,000/- each and in default in the payment of fine, they shall have to suffer further three years simple imprisonment. Benefit of Section 382-B was given to both the appellants. While accused Zahir Shah was acquitted by giving him benefit of doubt.
3. Prosecution story in brief, as unfurled in the FIR (Ex. PW-3/2) lodged by complainant Samin Jan SHO P.S ANF (PW-3) is to the effect that on 04.08.2004 at about 1630 hours the truck bearing No, GLT-7394 was intercepted on the venue of occurrence. per tip of prior information, accused Faheed Gul alias Fareed Gul was on the driving seat while accused Wali Gul was its conductor, there was luggage of Afghan Refugees in the body of the truck, which was unloaded and narcotics were 'identified in secret cavities, therefore, the same alongwith accused were brought to the Police Station, where after thorough search, 398 packets charas pukhta were recovered, each packet having one kilogram of charas, which on weighment stood 398 kilograms. He had separated one gram from each packet and prepared 40 packets for laboratory test while remaining was sealed into 16 bags. Accordingly, he drafted the murasila and in light thereof, the instant case was registered against the accused.
4. On completion of investigation, the convicts-appellants and acquitted co-accused were challaned to the Court for trial. The copies of the relevant documents under Section 265-C, Cr.P.0 were supplied to them. The charge was framed against them, to which they pleaded not guilty and claimed trial.
5. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the convict-appellants etc., produced Four witnesses while Dr. Ibadur Rehman was examined as Court witness. Mati-ur-Rehman FC (PW-1) was the marginal witness to the recovery memo, Ex.W-1/1, vide which, the I.O.. took into his possession a sum of Rs,840/- alongwith small size diary recovered from the possession of acquitted accused Zahir Shah. Bakht Shehzada (PW-2) had deposed that truck bearing No, GLT-7394 was earlier purchased by him from one Ajmal Khan against the payment of Rs,6,00,000/- and thereafter sold to one Khawas Khan and his brother Raza Khan on 26.03.2004. Samin Jan Inspector (PW-3) is the complainant of the instant case and narrated the entire story as referred above. He also conducted the investigation of the instant case.
He arrested the accused and, vide recovery memo, Ex.PW-3/1, took into possession narcotics and other articles mentioned therein; recorded the statements of PWs as well as accused; sent the sample to laboratory for chemical analysis vide application Ex.PW-3/3 and report of the FSL was placed on record, which is Ex.PW-3/6; produced the accused before the Court of Judicial Magistrate for police custody; on the disclosure of accused that the truck alongwith narcotics were the ownership of accused Zahir Shah and Khawas Khan, he made them accused in the instant case; placed on record verification of Motor Registration Authority, which is Ex.PW-3/4; arrested accused Zahir Shah on 14.10.2004 and recovered 840/- from his possession alongwith small pocket diary vide recovery memo, Ex.PW- 1/1; completed proceedings as required under Sections 204 & 87 Cr.P.C. against absconding accused Khawas and placed on record Nagal Made No, 7 dated 15.08.2004 of PS Ghalagi Swat, which is Ex.PW-3/5. Nasir Iqbal Inspector (PW-4) is the eye-witness as well as marginal witness to the recovery memo Ex.PW-3/1 and narrated the whole story as disclosed by PW-3. Dr. Ibadur Rehman appeared as Court Witness and stated on oath that chemical analysis of samples was conducted by him and vide his report, Ex.CW-1/1 found contraband to be Charas.
6. On conclusion of the prosecution evidence, statements of the accused were recorded under Section 342, Cr.P.C. They, in their statements, denied the charges and pleaded innocence. They, however, did not opt to lead any evidence in their defence nor appeared as their own witnesses in terms of Section 340(2), Cr.P.C.
7. The learned Special Judge (CNS), Peshawar, after hearing the arguments of both the parties and on appraisal of evidence, convicted and sentenced the appellants while acquitted Zahir Shah as stated above.
8. Arguments of M/s. Farhana Marwat and Mubarak Zeb Khan Advocates, appearing for the convict-appellants and that of Mr. Salahud-Din Khan, learned Prosecutor for ANF State heard in proper detail and we have gone through the record with their valuable assistance minutely.
9. It was vehemently contended by the learned appearing for the appellants that the impugned judgment is based on misreading and non-reading of evidence and is also against the law and facts of the case, is based upon surmises and conjectures; that the recovered contraband articles and the truck attributed to the appellants were neither produced nor exhibited in the Court; that all the recovery witnesses are ANF officials and the recovery was effected in violation of Section 103, Cr.P.0 from the secret cavities of the vehicle, therefore, is not to be believed and that the convict- appellants being not owners of the vehicle were not in the know of the contraband articles in the secret cavities, therefore, inflicting the punishment of Life Imprisonment is harsh and not justified in view of the afore-noted infirmities and loopholes in the prosecution case, therefore, the convict- appellants be acquitted from the charge levelled against them.
10. Mr. Salah-ud-Din Khan, learned Prosecutor for ANF, supported the impugned judgment and submitted that the convict-appellants were arrested red-handed on the spot while they were trafficking 398 kilograms of Charas pukhta, therefore, their conviction and sentence is justified and legal, be upheld accordingly.
11. We have anxiously considered the arguments of both the parties in the light of material available on record. Admittedly, convict-appellants were arrested on 04.08.2004 from the spot while trafficking huge quantity of 398 kilograms charas pukhta in a truck bearing No, GLT-7394. The material prosecution witnesses are consistent and unanimous on the points of time, place, recovery of contraband charas and its, seizure from the secret cavities of the vehicle. The samples of contraband articles were sent for chemical analysis to the Chemical Examiner, Government of Punjab and were found by, the Chemical Examiner (Dr. Ibadur Rehman CW-1) vide his report, Ex.CW-1/1 to be Charas, which can be used to cause intoxication. The plantation of such huge quantity of Narcotics is next to impossible for the officials of ANF and otherwise too, it was not claimed by the appellants in their respective statements recorded under Section 342, Cr.P.0 that the same was planted against them by the ANF officials. The case of the convict-appellants is of simple denial and they have claimed that nothing incriminating was recovered from them and have not attributed any mala-fide, enmity or dishonesty in investigation to the ANF officials for their involvement in this case.
12. Apart from that, quantity of charas weighing 398 kilograms could not possibility be planted on the accused and the said recovery had not been disputed by them and the explanation furnished by them that they were not in the know of narcotics in the secret cavities of the truck is neither reasonable nor worthy of reliance. The chemical examiner's report has confirmed that the seized material was charas. No illegality, perversity or unreasonableness in the impugned judgment was pointed out, therefore, it is held that the prosecution has brought home charge against the convict-appellants beyond reasonable doubt. It was held by the Apex Court of Pakistan in 2006 SCM R 299 (Khair Muhammad vs. the State) that: "Accused had led to the recovery of 61 Kgs. "Charas" from the secret parts of the Pajero Jeep about which he alone had the exclusive knowledge-Samples sent to the Chemical Examiner were confirmed by him to be "Charas"--No animosity of any sort with the police was shown by the accused, for his false implication or substitution in the case--Such a huge quantity of contraband could not be foisted without any valid reason which was missing in the case--Prosecution evidence was truthful and convincing--Judgments of the Courts below did not suffer from any illegality, misreading or non-appreciation of evidence--Leave to appeal was refused to accused in circumstances."
13. Besides that, it was a case of Nakabandi/checking and the prosecution witnesses were members of the checking party. Thus, their presence at the place was natural. The PWs present at the place of recovery of Charas from the secret cavities of the vehicle under control of the convict- appellants were the officials of ANF. They are the competent witnesses like any other independent witness and their evidence cannot be discarded merely for the reason that they happened to be official of ANF. Reference in this context can be made to the case of Naseer Ahmad vs. The State (2004 SCM R 1361), (ii) Riaz Ahmad vs. The State (2004 SCM R 988), (iii) Fida Jan vs. The State (2001 SCM R 36) and Muhammad Azam vs. The State (PLD 1996 SC 67).
14. For what has been discussed above, we are of the considered opinion that the prosecution has successfully established the guilt of the appellant to the hilt by producing the above-referred evidence. The learned Defence counsel have not been able to point out any error or illegality, misreading or non-reading of evidence in the impugned judgment of the learned trial Court.
15. For the foregoing reasons, the impugned judgment of the learned Special Judge (CNS) is up- held and the Criminal Appeals of convicts-appellants named above being without any merit or substance are hereby dismissed accordingly.