' SAGHEER AHMAD QADRI, J.---Waheed Gull, appellant was apprehended by Syed Mushtaq Hussain, Excise Inspector (P.W.3) who was present at Check Post MuIlan, Attock along-with other officials where he received spy information that huge quantity of narcotics is being smuggled from N.- W.F.P. Through Suzuki Khyber white colour having Registration No,LXJ-5344 coming from Peshawar side being driven by the appellant which was stopped and from its secrete cavities underneath the driver seat got recovered 60 packets Charas each containing one kilogram Charas hence total weight of the recovered narcotics became 60 K.G. And after separating sample from each packet for chemical analysis the instant case under section 9(c) of the Control of Narcotic Substances Act, 1997 was registered vide F.I.R. No,190 dated 30-10-2004 at Police Station Attock Khurd.
2. After investigation report under section 173, Cr.P.C. Was submitted in court and the appellant was charged in the aforementioned offence to which he pleaded not guilty and claimed trial.
3. Prosecution examined as many as five witnesses in order to prove the charge. P.W.1 Muhammad Sabir, Constable carried the sealed parcel to the office of Chemical Examiner which was provided to him by P.W.2 Faiz Ahmed, HC/Moharrir. P.W.2 Faiz Ahmad, HC has chalked out the formal F.I.R.
(Exh.PA/1). He also received three sealed parcels allegedly containing charas and other case property which he kept in safe custody and then handed over the same for onward transmission to the office of Chemical Examiner intact. Syed Mushtaq Hussain, Inspectorcomplainant/I.O. Appeared as P.W.3 who reiterated the stand mentioned in the FIR (Exh.PA/1). P.W.4 Rab Nawsz, HC is also one of the recovery witnesses who fully supported the prosecution case. P.W.5 Saleem Ullah, S.I.
Conducted the investigation of the case. He after preparing necessary police papers submitted challan in court.
4. After closure of the prosecution evidence the learned trial court examined the appellant on 19-7- 2006 under section 342, Cr.P.C. Wherein he asserted his false implication in this case as nothing was recovered from his possession.
5. The learned trial court after conclusion of trial vide judgment dated 26-4-2008 convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to undergo imprisonment for life with imposition of fine of Rs,2,00,000 and in default of payment thereof to undergo further rigorous imprisonment for two years. Benefit of section 382-B, Cr.P.C.
Was, however, extended to the appellant.
6. Feeling aggrieved by that judgment the appellant has challenged his conviction and sentence through this criminal appeal.
7. Learned counsel for the appellant agitated that the appellant is innocent who has falsely been involved in the case; that no narcotics was recovered from his possession; that the statements of the witnesses are full of material contradictions; that as per the complainant four parcels one of the sample and three of the remaining quantity were prepared but as per the statement of P.W.2 Faiz Ahmed, HC he had received only three parcels; that the vehicle has not been produced before the court; that P.W.5 Saleem Ullah, S.I./I.O. Has started the investigation of his own without any entrustment hence all the proceedings are illegal. Prayed that this appeal be accepted and the appellant be acquitted of the charge.
8. On the other hand learned Deputy Prosecutor General has vehemently opposed this appeal on the grounds that huge quantity of Charas has been recovered from the secret cavities of the vehicle being driven by the appellant at the relevant time which cannot be termed as fake recovery; that the recovery was proved through the statements of P.W.3 Syed Mushtaq Hussain Shah, Inspector/complainant and P.W.4 Rab Nawaz, Constable; that the report of the Chemical Examiner is positive; that no defence evidence was led to falsify the prosecution story, therefore, the prosecution was able to prove the charge under section 9(c) of the Control of Narcotic Substances Act, 1997, therefore, he was rightly convicted. Prayed that this appeal be dismissed.
9. We have considered the contentions raised by learned counsel for the parties and perused the record thoroughly.
10. It is alleged by the prosecution through statement of P.W.3 Mushtaq Hussain Shah, Excise Inspector, complainant who got recorded complaint (Exh.PA) on the basis of which subsequently F.I.R. (Exh.PA/1) was registered at Police Station Attock Khurd that on 30-10-2004 on spy information he along with other P.Ws. Were present at Mullan Mansoor, Excise Check Post when at 9.30 a.m. The appellant who subsequently disclosed his name as Waheed Gul reached there by suzuki car having number plate LXJ-5344 which was stopped and when car was checked from inside it underneath front side as well as driving side two secret cavities were found which when opened it recovered 60 packets of Charas each containing one K.G. Charas total weighing 60 K.G. And out of all the packets small quantity of 10 grams Charas was separated and made into three sealed parcels vide memo. Exh.P2-1/3 along with car Exh.P2 vide memo. Exh.PB attested by P.W.4 Rab Nawaz, Excise Head Constable and Muhammad Altaf, Constable (given up P.W.)
11. In order to prove the charge the prpsecution examined total five witnesses out of which P.W.3 as already mentioned was complainant Mushtaq Hussain Shah, Excise Inspector who proved the recovery of narcotics as mentioned above. To support him Rab Nawaz, Excise Head Constable was produced as P.W.4 who corroborated all material aspects of the prosecution version in respect of the recovery process. The investigation in this case was conducted by P.W.5 Saleem Ullah, S.I. Who also narrated his part of evidence in respect of investigation which he conducted subsequent to the effecting of recovery of Charas as alleged by the complainant and other recovery witnesses.
The learned trial court while passing the impugned judgment whereby the appellant was sentenced has considered all aspects and objections raised by the learned defence counsel at the trial stage. Learned counsel for the appellant although raised same objections as were raised by the learned defence counsel at the trial stage, however, main stay of the arguments advanced by the learned counsel for the appellant was that there was no evidence available on record to connect the appellant with the recovery of car Exh.P2 where from allegedly Charas weighing 60 K.G.
Was shown recovered. The second main objection/argument raised by learned counsel for the appellant was that out of total recovered substance only a small quantity of the Charas was secured as sample from each packet. It is not possible to secure at least meagre quantity of 10 grams Charas out of total 60 packets and one can infer that such process did not take place and P.W.3 Syed Mushtaq Hussain Shah, complainant has deposed falsely in this respect. We have considered these aspects in the light of the record available. If the statement of accused- appellant under section 342, Cr.P.C. Is seen he in reply to a specific question "why this case against him and why the P.Ws. Deposed against him" he replied as under:-- "Two days prior to registration of this case I was apprehended by police party who kept me in the Police lock up and after two days I was produced before a Magistrate whom I told the whole story that nothing was recovered from my possession. However, I told that I am a cloth career and police took into possession the cloth recovered from me when I was taking the cloth from Peshawar to Rawalpindi. The police has concocted a false story against me and planted recovery of fake charas and other articles against me. My real name is Ashiq Muhammad whereas the Identity Card alleged to have been recovered from me is of Waheed Gul."
12. If the above mentioned defence version as raised by the appellant in his statement under section 342, Cr.P.C. Is seen he has completely denied any recovery of narcotics from his possession.
He, did not led any evidence to prove his version as he alleged that he was apprehended two days prior to the 'alleged recovery. It is now settled law that until and unless an accused during trial raised a specific plea about the recovered Substance i,e, narcotics and challenging the veracity of the prosecution version that substance was not narcotic and also raised a specific objection about the 'admissibility of the report of Chemical Examiner that samples were not secured from each and every packet or small quantity of the substance was secured for sample either from the whole bulk or from any one of its parts such like objections cannot be entertained. Reference in this respect can be seen from a judgment of the apex Court in Nadir Khan and others v. The State (1988 SCM R 1899) wherein in such like circumstances when samples were not taken from each of the 49 bags recovered their lordships of the Hon'ble Supreme Court of Pakistan held that "it was not necessary to take samples from every one of the packets and the required evidence has been produced to connect the report with the sample notwithstanding the omission to produce the carrier of the sample".
13. In the present case if the trend of cross-examination on the witnesses by learned defence counsel is seen nowhere it was agitated nor any such objection was raised by the defence that recovered substance was not Charas as alleged by the prosecution. Herein the accused-appellant only raised a plea of denial/innocence. Although vehicle/car out of which the alleged recovery was produced and exhibited but no objection whatsoever raised about its ownership. Even otherwise ownership of vehicle is not necessary to prove the charge under section 9(c) of the Control of Narcotic Substances Act, 1997 which is a penal provision to provide a sentence to a person who violates the provisions of sections 6, 7 and 8 of Control of Narcotics Substances Act, 1997. Herein only possession of narcotic substance is necessary to prove., As the appellant' was found driving the car in question and he was apprehended at the relevant time in possession of the vehicle out of which 60 K.G. Charas was recovered, therefore, it can safely be presumed that the appellant was in possession of the vehicle containing narcotics. Thus recovery of narcotics was effected from his possession. The question of ownership of the vehicle can be relevant for the purposes of confiscation of case property i,e, the car under .Reference. However, it has no bearing on the conviction of a person if he found in possession of vehicle containing narcotics. Even otherwise under section 29 of the Control of Narcotic Substances Act, 1997 if any such plea is raised presumption goes against an accused person who is found in possession of the vehicle/narcotics and in case initial burden of proof is discharged by the prosecution then the accused is to rebut the same. As no such plea was ever raised by the appellant during trial, therefore, this argument advanced by the learned counsel for the appellant is also without any force.
14. Resultantly, we find no merits in this appeal, which is hereby dismissed.