' ABDUL AZIZ KUNDI, J.---Naeem Khan son of Muhammad Ismail, convict-appellant, who was an accused in Case No,70/SPC of 2006 of F.I.R. No,120 dated 27-3-2006, for offence under section 9 C.N.S.A., 1997, Police Station Pishtakhara, Peshawar, was tried by Additional Sessions Judge-I/Judge, Special Court, Peshawar and vide judgment dated 21-8-2009, having been found guilty of offence under section 9(c) C.N.S.A., 1997, convicted and sentenced to life imprisonment with fine of rupees one lac, or in default whereof to further imprisonment of one year and also allowing him benefit of section 382-B, Cr.P.C., has through the instant appeal questioned his conviction and sentence.
2. Prosecution case per F.I.R. Exh.PA, registered on the basis of `Murasila' Exh.P.W.3/2 by Ashiq Mir Khan, S.-I. Police. Station Pishtakhara, is that on 27-3-2006, at 7.30 hours the said S.-I. Along with other police personnels was present on special 'Naka Bandi' at Bara Qadeem Check Post, when in the meantime Truck bearing No,2199 SGA, coming from Bara side was stopped for checking, being driven by Naeem Khan, the present appellant, while another man sitting with him on the front seat disclosed his name as Hazrat Muhammad son of Abdul Razzaq. On search of the truck, 250 packets of 'Charas Pukhta' were recovered from secret cavities of the truck, which on weighing came to be one K.G. Each, thus making the total 250 Kgs. The said S.-I. After separating four grams from each of the packets for chemical analysis sealed the remaining 249 Kgs. Charas in a separate parcel and also took into possession the truck and arrested the two persons named above.
3. After completion of the investigation, the present appellant and his co-accused were formally charged on 15-11-2006, but later on case of co-accused Hazrat Muhammad was separated, being juvenile.
4. In support of its case, prosecution produced P. W.1 Muhammad Sher Khan, who had on completion of the investigation submitted complete challan against the accused of the case.
' P.W.2 Burhanuddin S.I. Had on receipt of `Murasila' incorporated the same into F.I.R. Ex.PA, which is in his hand writing and correctly bears his signature.
' Ashiq Mir Khan, S.-I. Who had seized the contraband narcotics was examined as P.W.3, who in his statement detailed the events of recovery of the contraband charas, separation of samples for chemical analysis, preparation of recovery memo Exh.P.W.3/1, drafting of 'Murasila' Exh. P. W.3/2, application Exh. P: W.3/3 for chemical analysis of the samples, prepared the site plan Exh.P.W.3/4 and on receipt of the report of the chemical examiner Exh.P.W.3/6; placed the same on file.
' Siraj Muhammad, Constable was examined as P.W.4, who is the witness to the recovery memo.
Exh.P.W.3/1 and thereafter convict-appellant Naeem was examined under section 342, Cr.P.C.
5. On conclusion of the trial, the Judge of the trial court proceeded to convict and sentence the appellant, as detailed in the opening para of this judgment.
6. Learned counsel for the appellant, after taking us through F.I.R. Exh.PA., report of Chemical Examiner Exh. P. W.3/6 and statements of the witnesses, argued that the charge against the convict-appellant had not been proved in accordance with law and that the Judge of the trial court while mis-reading and non-reading the evidence, convicted, and sentenced the appellant, which is not sustainable.
' It was also argued that no driving license of the convict-appellant or registration documents of the vehicle were recovered and that the contraband charas had been recovered from the secret cavities of the truck in question and thus convict-appellant had no knowledge muchless conscious of the contraband charas in the secret cavities because he was only a driver. In support of his arguments, he place reliance on the judgment reported as PLD 1995 SC 516, (Naik Muhammad and another v. State). Learned counsel while reading the evidence tried to persuade us to take notice of the minor contradictions in the evidence available on the record of the case.
' As against that, learned counsel for the State argued that convict-appellant, while driving truck in question was intercepted by the police and on search huge quantity of charas weighing 250 Kgs.
Was recovered and that the report of Chemical Examiner Exh.P.W.3/6 has proved the recovered contraband to be charas and further that the convict-appellant admittedly being the driver of the truck was having the conscious knowledge of the contraband narcotics concealed in the secret cavities and thus guilty of the offence for which he has been convicted and sentenced. In support of his contentions, learned counsel placed reliance on 2010 SCM R 927, (Muhammad Noor and others v. The State).
' Arguments heard. Record perused.
7. Not only that the recovery of contraband charas has been proved by the prosecution through the statements of P.W.3 Ashiq Mir Khan, S.-I. And P.W.4 Siraj Muhammad Constable, but convict- appellant himself has in his statement under section 342, Cr.P.C. Recorded on 4-7-2009, admitted the recovery of contraband narcotics and for the sake of ready reference, question No,1 and answer thereto in his statement under section 342, Cr.P.C. Is reproduced hereunder:-- "Q]. It is in the evidence that on 27-7-2006 at 7-30 hours at Bara Qadeem Check Post within the criminal jurisdiction of Police Station Pishtakhara you being driver and" the other Cleaner of the Truck bearing Registration No,2199 SGA while coming from Bara Qadeem Check Post were stopped by the local police and during search of the said truck 250 packets of Charas Pukhta weighing 250 Kgs. Were recovered from the secret cavities of the same truck which you were trafficking the same from Bara T.T. Towards settled area. What do you say about it?"
' Ans. It is correct to the extent that the truck bearing Registration No,2199 SGA was being driven by me on 27-7-2006 and beside me Hazrat Muhammad was sitting as a Cleaner in the Truck in question which was stopped by the local police and contraband was recovered from the secret cavity, however I had no knowledge of the concerned contraband which was kept clandestinely in the secret cavity of the truck by the accused Nasir Khan, Nisar Khan, Azeem Khan, Aitbar Shah, Liaq Shah and Jamshed. On 26-3-2006 at evening time one Jamshid gave me Telephonic call for whom I was working as Driver, and was employed at a salary of Rs,5000 per month for bringing bricks for sale from different brick kilns of Peshawar. He asked me on telephone to come on 27-3- 2006 with dawn and bring bricks from bread kilns for sale, on this I went to Bara at the Hujra of said Jamshid, there Nisar Khan, Nasir Khan, Azeem Khan Aitbar Shah, Laiq Shah and accused Hazrat Muhammad were already present and truck bearing Registration No,2199 SGA was parked there, the key of the truck was handed over to me by the said Jamshid and I started for Peshawar to bring bricks from Kilns along with accused Hazrat Muhammad. The truck was intercepted by the police at Bara Qadeem check post and after search the contraband was recovered from the secret cavity in the truck in question. I had neither knowledge of the secret cavities of the truck nor it was known to me that the contraband has been kept concealed in those cavities by the persons named above."
' Thus the recovery of the contraband charas weighing 250 Kgs. Stands admitted and the same was further proved to be charas, vide report of Chemical Examiner Exh.P.W.3/6 and it can thus safely be held and rightly held so by the trial Court that the convict-appellant was intercepted when he was trafficking the aforesaid contraband charas.
8. The other argument of the learned counsel that being merely a driver of the truck, convict- appellant had no knowledge, much less conscious of the contraband charas concealed in the secret cavities is also without any substance. In the case of Naik Muhammad and another v. The State (PLD 1.995 SC 516 relied upon by the learned counsel for the appellant, a Full Bench of the Hon'ble apex Court held as under:- "The prosecution failed to lead any evidence in the case to establish the connection of the two appellants with the vehicle fromwhere the contraband hereoin was recovered, either as its owner or driver or in any other capacity. We may mention here that in cases where contraband heroin is found lying concealed in a vehicle in a manner that it is not discoverable on mere inspection of the vehicle and it is necessary to have special knowledge about its concealment to recover it then in such cases, mere presence of a person in such vehicle could not make him liable for conscious possession of such contraband article." (Emphasis supplied).
' Similarly, in the case of Muhammad Noor and others v. The State (2010 SCM R 927), again a Full Bench of the Hon'ble apex Court after surveying the entire case-law on the subject in paras-8 and 9 of the said judgment (pages 935 and 936), proceeded to hold as under:-- "(8) As regards Driver of the vehicle, it is important to note that when he is driving the vehicle, he is Incharge of the same, therefore, it would be under his control and possession. Hence, whatever articles lying in it would be under his control and possession. The liability of the driver, in view of provisions of section 27, P.P.C., has been considered by this o in the case of Sherzada v. State 1993 SCM R 149; wherein it was observed as under:-- "The next point raised by the learned counsel was that it is provided in section 27, P.P.C. That when property is in the possession of wife, clerk or servant on account of that person, it is in that person's possession within the meaning of this Code. The learned counsel argued that the appellant was a driver, hence an employee of the owner of the car and even if he is admitted to be in possession of the contraband article on behalf of the owner, he cannot be said to be liable for that possession.
But this argument of the learned counsel is without force on the face of it because section 27, P.P.C.
Is confined to the Pakistan Penal Code only, as the words "within the meaning of this Code" appearing in that section clearly indicate. This section has not been made applicable to the Prohibition (Enforcement of Hadd) Order, 1979 as is evident from Article 26 of that Order where certain other provisions of the P.P.C. Have been made applicable."
' This Court in the case of Adil Ahmad v. Deputy Collector, C&CE 1991 SCM R 1951 has observed that in view of the provisions of Customs Act, the drivers and owners were both responsible.
' In the case of Rab Nawaz v. The State PLD 1994 SC 858, the liability of drivers was again considered and lenient view was taken, as they expressed their ignorance about the contents and claimed to be simple carriers. In the present case the appellant did not claim to be carrier.
' This Court in the case of Nadir Khan v. State 1988 SCM R 1899 has observed that knowledge and awareness would be attributed to the Incharge of the vehicle. The relevant portion reads as under:- - ' "We have gone through the evidence on record and find that the petitioners had the charge of vehicle for a long journey starting from Peshawar and terminating at Karachi. They had the driving licence also. As being person Incharge of the vehicle for such a long journey, they must be saddled with the necessary knowledge with regard to the vehicle and its contents."
9. Keeping in view the above principles of law, the appellant Muhammad Noor is Driver, therefore, he is in possession of the vehicle and also in possession of the articles whatever lying in it. The allegations against the appellant Muhammad Ramzan is that on his information secret cavities of the vehicle were opened and Charas was secured. Thus, from such information it has been established that he had knowledge of the availability of Charas in the secret cavities of the vehicle.
Therefore, the appellant Muhammad Ramzan is also involved in the case along with the appellant Muhammad Noor. Hence, the case has been proved against both the appellants Muhammad Ramzan and Muhammad Noor." (Emphasis supplied).
10. The above law settled by the Hon'ble apex Court leaves no doubt in one's mind that the convict- appellant, who was admittedly driver of the vehicle in question was sufficiently connected with the crime and had a conscious knowledge of the contraband concealed in the secret cavities.
' We, thus, see no reason much less good to interfere with the impugned judgment of conviction and sentence of the appellant and accordingly while maintaining the same, the instant Criminal Appeal is dismissed.