' IRSHAD QAISER, J.---This judgment will dispose of Criminal Appeal No, 533 of 2010 filed by Ali Rehman appellant under section 410, Cr.P.C. Read with section 48 of C.N.S.A., 1997, who was convicted and sentenced to life imprisonment along with fine of Rs,50000 or in default of payment of fine to undergo for further six months S.I. Benefit of section 382-B, Cr.P.C. Was extended vide order/judgment dated 27-5-2010 rendered by learned Judge, Special Court, (CNS), Peshawar.
2. The prosecution story in brief is that on 30-6-2009 Mushtaq Ahmad, S.I. Police Station, ANF Kohat constituted a raiding party and made Nakabandi near Muhajir Camp No, 2 Bypass Road Gulshan Abad Kohat on receipt of information that appellant Ali Rehman and Khan Gul would smuggle huge quantity of narcotics through Truck No, C-2253 Bannu N.-W.F.P. From Sakha Kot Malakand Agency via Kohat. At about 1430 hours the truck apparently loaded by shuttering material was signaled to stop when he reached the place of Nakabandi but despite the signal the driver did not stop the vehicle ultimately he was chased through the official vehicle and over powered. On inquiry the driver disclosed his name Ali Rehman while the other person being cleaner disclosed his name as Khan Gul. During the course of search of the truck seizing officer recovered 28 packets from the secret cavities made on upper portion inside the cabin. On weighment the total chars comes out 33.600 KGs as each packet was of 1200 grams. 10/10 grams from each packet were prepared 28 parcel of samples by affixing 2/2 seals of monogram of MA while the remaining packets -of chars were seal into 1 sack by affixing 4 seals of the monogram MA. The further search of truck as well as personal search of the accused led to the recovery of other articles including one registration book and CNIC. All these articles including the narcotics and truck were taken into possession through recovery memo Exh. P.W.3/1 in the presence of marginal witness. After completion of formalities F.I.R. Was registered against the appellant and challan was submitted.
3. Formal charge was framed which they do not plead guilty and claim trial. Prosecution in support of charge against appellant examined 5 P.Ws. Namely, Mudassir, Falak Niaz, Mushtaq Ahmad, Raja Shoaib and Muhammad Fakhar Abbas. After closing of prosecution case, the appellant was examined under section 342, Cr.P.C. He denied the prosecution allegations. Ali Rehman in his statement contended that he is innocent and has no conscious knowledge regarding the concealment of narcotics in the truck. He produced defence in the shape of DW-1 Akram and also examined himself on oath under section 340(2) Cr.P.C. The learned trial Judge, on the conclusion of trial held the appellant guilty of the charge and convicted and sentenced.
4. Feeling aggrieved of the impugned order and judgment appellant filed this appeal and assailed the impugned judgment on a number of grounds.
5. Learned counsel for the appellant argued that though the appellant was driving the truck at the relevant time but he has no conscious knowledge regarding concealment of narcotics. He has no concern with the truck. He is driver by profession and used to ply the vehicle of different persons at Haji Camp Ada. On the day of occurrence his services were hired by Fazal Mola and Mir Haider at the cost of Rs,600 for taking truck loaded with shuttering material to Kohat. That it is a case of two versions and the version set up by the defence is more probable, convincing and correct but the trial Court has not considered his version. That at the time of recovery from the appellant, I.O. Did not associate the private persons as recovery witnesses and only relied upon his subordinates and further more he himself registered the case and investigated the same. It is further contended that samples were not taken from all the lot. Thus the report of FSL is not with regard to all the recovered contraband. That there are material contradiction in the statements of P.Ws. Reliance was placed on PLD 2012 SC page 38, 2005 PCr:LJ 1151.
6. Learned State Counsel while advancing arguments in support of prosecution case argued that admittedly the appellant was sitting on the driving seat of the truck from where huge quantity of chars was recovered. He had full conscious knowledge about the huge quantity of narcotics concealed in the secret cavities of the truck as when he was signalled he tried to make escape but failed. He pleaded that the recovery of huge quantity of narcotics from the conscious possession from the appellant is proved. Elaborating his view point he stated that prosecution version is fully supported by direct evidence and positive report of FSL. That during investigation all the formalities have been conducted in accordance with law.
7. We have heard the learned counsel for the parties and have perused the record with the able assistance.
8. Admittedly appellant was on the driving seat of above mentioned truck and was driving the same at the time of occurrence. Mushtaq Ahmad who is composer of the case appears as P.W.3.
He has reiterated almost the same story set forth in his report. He was subjected to grueling cross- examination but it was never specifically put to him that appellant has no conscious knowledge of the contraband. Only a question was put to him that no document from the possession of appellant was recovered to show that he had conscious knowledge of the narcotics. P.W.3 further clarified the situation in reply to a question put on him during this cross-examination "appellant disclosed to me that one Said Habib took him to Malakand Dargai and he along with the appellant concealed the narcotics in the truck over there". Similarly the date, time and arrest of the appellant from the spot were not questioned during the course of his cross-examination. Raja Shoaib, A.S.-I.
While appearing as PW-4 has almost toed the line of Mushtaq Ahmad P.W.
9. The ocular account has been furnished by P.W.3 Mushtaq Ahmad and P.W.4 Raja Shoaib. Both prosecution witnesses have made no departure from their early version recorded during investigation. Both the witnesses have fully supported the prosecution story. They have remained fully consistent, coherent and have successfully faced the test of cross-examination. No material contradiction has been pointed out. The minor contradictions pointed out by the learned counsel for the appellant are not serious in nature and these can never be considered sufficient to vitiate the trial or make the recovery doubtful. The mere fact that these witnesses belong to ANF by itself cannot be considered a good ground to discard their statement. Reliance in this respect is made on 2004 SCM R 1361 and 2004 SCM R 988.
10. In rebuttal the appellant has not produced any convincing, straightforward and coherent evidence. Though appellant had produced defence but he failed to prove his version of having no conscious knowledge of narcotics in the truck driven by him. The story narrated by him in his statement under sections 342 and 340(2), Cr.P.C. Does not appeal to the mind of prudent person.
There are material contradictions in his statement recorded under sections 342 and 340(2) Cr.P.C.
Which belied the story of appellant. This story is also negated by DW-1. He did not disclose the name of the owner of the truck. In cross-examination he admitted "I neither know the person nor his whereabouts who came to hotel for hiring a driver for his truck". He also denied the services of Malang as Chowkidar and stated that he is the only Chowkidar of the Ada. Moreover he could not produce any documents etc. Showing him as Chowkidar. Appellant also failed to produce the other alleged Chowkidar and the owner of the Ada. The witness produced by the appellant has not toed the lines of appellant in letter and spirit. He did not know the name of appellant. His version is also half heartedly attempt to rescue the appellant Ali Rehman. It is admitted fact that such like people are available in the market. In such like circumstances the story narrated by the appellant is nothing but a bull and cock story while against him the story narrated by the P.Ws. Is natural, true and supported by the recovery of huge quantity of narcotics and the truck which is under the control of a appellant. Recovery witnesses were not shown to be motivated by any ill will or enmity toward the appellant. Section 29 of C.N.S.A. Is very clear vide which the first the prosecution has to prima facie establish its case then the burden shifts upon the appellant to prove contrary to the plea of prosecution. Though the prosecution proved his case by producing material witnesses but the plea taken by appellant had no foundation and has not been satisfactorily proved. He has failed to prove his case by producing convincing and strong evidence. Reference is made to 2010 SCM R 927, 2011 PCr.LJ Lahore 221.
11. The learned counsel for the appellant by referring to the serious draw-backs in the prosecution case submitted that sample from each slab of contraband was not separated for chemical analysis which made the recovery doubtful quo its quantum. This objection of learned counsel is devoid of force and carries no wait as according to the recovery memo 28 packets each weighing 1200 grams total 33.600 KGs were recovered. 10/10 grams were separated form each packet and 28 samples were prepared and sent to FSL for analysis and report thereof was in positive. This report has not been challenged by the appellant. The report of FSL also corroborated the ocular accounts.
12. Learned counsel for the appellant further contended that there were serious lapses in the process of investigation which had vitiated the trial. That the seizing officer who is also a complainant has investigated the case and this fact makes the case of investigation illegal. This objection .Has also no force because it is settled principle of law that Police official are not prohibited under the law to be a complainant if he is a witness to the commission of offence and also to be an investigation officer, so long as it does not in any way, prejudice the appellant person.
Reference in this respect is made to PLD 1997 SC 408. As noted above he appellant could not point out any mala fide or ulterior motive on behalf of seizing officer to falsely charge him for the recovery of huge quantity of narcotics recovered from the truck which was under his control.
13. The other contention of learned counsel for the appellant is that the recovery was not witnessed by person from general public, we may observe that section 25 of C.N.S.A. Excludes the application of section 103 Cr.P.C. Reliance is placed on PLD 2007 Peshawar 135.
14. Accused admitted that at the time of his apprehension on 30-6-2009 at 1430 hours he was sitting in the truck from where the chars was recovered. It is repeatedly observed by the august Supreme Court of Pakistan that knowledge and awareness would be attributed to the incharge of the vehicle and that the person on the driving seat shall be held responsible for the transportation of narcotics having knowledge of the same as no condition or qualification has been made in section 9(6) of C.N.S.A. That a possession should be exclusive one. Furthermore that when a person is driving the vehicle he is in the charge of the same and it would be under his control and possession, hence, whatever articles lying in it would be under his control and possession. Reliance is placed on 2010 SCM R 927 and 1988 SCM R 1899.
15. Thus for the foregoing reasons we see no substance in the instant appeal and the same is hereby dismissed.