This single judgment shall also decide Cr. A. No, 412/05 titled 'Aala Muhammad Vs. The State" because both have arisen out of the same judgment dated 2-6-2005 of the learned Sessions Judge/Special Court whereby both the appellants have been convicted u/S. 9 CNS Act 1997 and have been sentenced to life imprisonment each with a fine of Rs,1,00,000/- each or in default of payment of fine to suffer further 5 years R.I. Benefit of Section 382-B Cr.P.'C was given. Now through these two appeals the convicts have impugned the said judgment.
Arguments heard and record perused.
2. On 4-4-2004 at 11.00 a.m. Car No, 333/BRC was stopped at check post Gora within the jurisdiction of P.S. Ghalegi Swat by Yousaf Ali Khan, SI (PW-4) and his police party. Appellant Aala Muhammad was on the driver seat while appellant Mehboob-ur-Rehman was sitting adjacent to him on the front seat whereas rest of the co-accused since discharged vide Illaqa Magistrate order dated 22- 4-2004, namely, Muhammad Sajjad, Sadiq Shah, Tariq Ali and Irfan students of school and college were sitting on the rear seat. Suspecting something abnormal, the car was searched and from beneath the front and rear of the seats of the car, '17 bags of yellow colour containing charas were recovered which on weighment were found 18,500/- grams. The same were taken into possession there and then after separating samples for laboratory test and were sealed into separate parcels while murasila Ex.PA/1 was sent and on the basis of which case FIR No, 261 was registered by P.S. Ghalegi, During the course of interrogation, the present appellants made some disclosure and expressed that they are ready to confess guilt, therefore, they were produced before Judicial Magistrate Qazi Attaullah (PW-2) where they recorded their confessional statements while rest of the four co-accused after thorough investigation and verification from the elders of locality and their villages were found innocent being on pleasure trip thus their defense plea was accepted by the investigating/prosecution agency and were recommended to be discharged which received approval of the Illaqa Magistrate as mentioned above.
3. After receiving the expert report in the above positive, charge sheet was filed against the appellants and at the trial prosecution examined five witnesses out of whom PW-2 is Qazi Attaullah, Judicial Magistrate who recorded confessional statement of the two appellants, Jehanzeb Khan, ASI who at the time of occurrence was IHC attached to P.S. Ghalegi and is marginal witness to the recovery memo Ex.PW-3/1 through which the bulk of the charas Ex.P1 was taken into possession besides being witness to recovery Ex.P2 through which the motor car used in the commission of offence was taken into possession. The I.O. Yousaf Ali Khan, SI was examined as PW-4 while Abdul Aziz SI was examined as PW-5 who partly investigated the case, arrested Bacha Hussain accused whose name was disclosed in the confessional statement of Aala Muhammad appellant. He obtained custody of the accused and as a result of his investigation he recommended the four co- accused to be discharged from the case being innocent and then submitted the file to SHO.
4. Both the appellants were examined u/S. 342, Cr.P.C. but they denied the charge, however, they admitted that charas were recovered from the car in which they were traveling but have shown ignorance about the same while in their confessional statements both the appellants have blamed each other for the commission of the crime.
5. Judged and seen on the strength of evidence adduced at the trial, it is, established beyond any shadow of doubt, that both the appellants were travelling in the car from which 18,500 grams charas concealed beneath the front and rear seats were' recovered in their presence. The rest of the four co-accused were students and as stated earlier according to their defense plea they were going on pleasure trip to Kalam and were having no connection with the two appellants.
6. Not only the prosecution has established the charge against the two appellants by producing reliable and trustworthy evidence at the trial where all the witnesses have given almost consistent statement on salient features of the case with regard to interception of the car, the recovery of the charas and its weight expect minor contradiction as to how much number of bags were recovered from beneath the front and rear seats which could be attributed to memory lapses due to the passage of time toe of more than one year when they were examined at the trial.
7. The Chemical Examiner has returned the report holding that the contrabands were charas and this aspect of the case has not been challenged by the defense in any manner.
8. Learned counsel for the appellants vehemently argued that the charas were concealed under the seats in the Cavities, therefore, prosecution was required to have tagged that appellants with conscious knowledge, about the presence of the same when it was not visible to them and when no evidence reliable in nature has been led in this regard then the appellants cannot be held guilty on the basis of presumptions, conjectures and surmises which were made basis for the impugned judgment by the trial Court and that if the confessional statement of appellant Aala Muhammad is considered to be' true and admissible in evidence then his liability is confined to 8 KGs and the maximum punishment provided for such quantity is 14 years and not life imprisonment. He further urged that co-accused Bacha Hussain was acquitted albeit he was tried simultaneously with the appellants, therefore, it was not proper for the trial Court of disbelieving a part of the confessional statement and relying on the rest of it as it is settled law that no pick and choose is to be made in the case of confession of an accused and it shall be taken as whole.
9. The learned Advocate General appearing for the State strongly supported the impugned judgment almost on the same reasons given therein.
10. We have minutely perused the confessional statement of both the appellants. In the case of Aala Muhammad appellant, to a great extent, it is inculpatory as he has admitted that he was transporting the C charas for Bacha Hussain, acquitted accused, for which he was paid Rs, 4,600/-.
He has admitted quantity to the extent of one KG which was under his possession and control while the rest belong to Mehboob-ur-Rehman, however, in the concluding part of the confession he has given twist to the story that at the time of recovery the charas were already delivered to Bacha Hussain and from his possession the same were recovered.
11. The confession of Mehboob-ur-Rehman is exculpatory in nature, however, careful scrutiny would show that he too has given sharp twist to the story in a clever manner shifting the burden to Aala Muhammad appellant as it is admitted by him that the car in question at the relevant time was belonging to him which was being driven by Aala Muhammad appellant. He has further stated in the confession that enroute to Swat, the driver (Aala Muhammad) appellant diverted the course of straight journey and adopted a different route and when he, was asked about this sudden change, he was told that the route adopted was a short cut to the place and when they were stopped by the police, Aala Muhammad appellant made an attempt to flee away but was apprehended. He has further stated that the charas was recovered from beneath the driver seat. This last portion of the confession is exculpatory in nature but we are of the view that the appellant has made crude attempt to shift the burden to Aala Muhammad, who appears to he his driver, because during the investigation the registration book of the car was not produced and it was tendered it the statement recorded u/S. 342 Cr.P.C. with an object to show that the car was the ownership of one Fazle Mehmood. No doubt the car was taken on "Superdari" from the Court by the said Fazle Mehmood but it is an established practice in transport business that to avoid Government taxes despite of sale and purchase of car and other vehicles as required under the Motor Vehicles Rules it is not transferred by the purchaser in his name but is used on the strength of signed/blank transfer letter or unregistered sale-deed or on the bases of account of verbal transaction.
12. The only point in the case of Mehboob-ur-Rehman appellant highlighted by the defense counsel was that while recording his confession, to a question, he stated that he was tortured by the police and the Magistrate has also recorded observation about a bluish contusion on his wrest thus according to the defense the confession was a result of police torture and cannot be considered.
13. The principle that statement/confession of an accused is to be taken in toto and no pick and choose process is to be adopted is applicable only in those cases where the other evidence of the prosecution is disbelieved/discarded by the Court which is not the case in hand because not only huge quantity of charas weighing 18500 grams was recovered from the motor car which was by then in active and exclusive control of both the appellants but also that three important witnesses to whom no mala fide, ill-will or personal grudge has been attributed have been evidence against the appellants and their testimony get support from the inculpatory part of the confessional statement of both the accused/appellants.
In the case of the State Vs. Muhammad Hanif and 5 others (1992 SCM R 2047) the Hon'ble Supreme Court while following the rule of caution laid down in Balma Kund's Case (AIR 1931 Alla Abad 1) held that if there is other evidence reliable in nature then a portion of the confession made in the light of that evidence be rejected while acting upon the remainder with other evidence.
14. Under the provisions of Section 29 of the CNS Act once the recovery of contrabands was made from a private car which was by then in control of the two appellants, the burden to explain the possession whether actual or constructive was on the appellants to discharge but neither they have led any evidence in defense nor have appeared in disproof of the prosecution evidence u/S. 340(2) Cr.P.0 thus the charge laid upon them has remained un-rebutted.
15.In the case of Shah Wali and another Vs. The State (PLD 1993 SC 32) it was contended before the apex Court that although the prosecution has failed to prove exclusive possession of either of the two petitioners; that Hazrat Rehman who was sitting on the front passenger seat seems to be less responsible than Shah Wali because as driver of the. Suzuki Car the latter can be held to be responsible for what was recovered from his vehicle, however, this contention was repelled by the apex Court in holding that despite several opportunities to explain the presence of the heroin on the Suzuki seat which was occupied by both of them and none else, neither of them came out with even a shred of truth to assist the Court, therefore, the benefit of doubt sought to be extended was refused. The facts of the present case are at par with the one cited above and can not be distinguished on any premises whatsoever.
For what has been discussed above, we are of the firm view that the prosecution has been able in proving the guilt of both the appellants beyond reasonable doubt, therefore, the learned trial Court was fully justified in convicting and sentencing them to life imprisonment and fine as mentioned earlier.
Accordingly this appeal being devoid of all legal merits is dismissed.