' SHAH JEHAN AKHUNZADA, J.---The appellant was tried, found guilty, convicted under section 9(c)
C.N.S.A., 1997 and sentenced to imprisonment for life with a fine of Rs,100,000 or in default to suffer further one year's S.I. By the learned Judge Special Court (C.N.S.) Peshawar vide his judgment dated 13-1-2010.The sentence in case of non-payment of fine was ordered to run consecutive to the substantive sentence. He was, however, extended the benefit of S.382-B, Cr.P.C. The seized Motorcar No,LEF 7279, used in the commission of offence, has been confiscated to the State. Whereas the lady co-accused was bailed out by the trial Court, but she did not turn up and thus was declared proclaimed offender through proceedings under section 512, Cr.P.C. And perpetual warrant of arrest was issued against her. Now the appellant has challenged his conviction and sentence through the appeal in hand.
2. Brief facts, but relevant for the disposal of this appeal are that there was secret information that smugglers of narcotics would try to smuggle huge quantity of narcotics from Tribal Territory to Punjab in Motorcar No,LEF 7279. Accordingly barricade was laid on Ring Road near Pishtakhara Chowk on 29-4-2008. During the course of Nakabandi, the said Motor Car appeared coming from Bara towards Peshawar and was thus stopped b1 the ANF staff. The Driver on inquiry disclosed his name as Gulzala, the present appellant. A lady sitting in the front seat of the vehicle on inquiry disclosed her name as Sardar Bibi wife of Ameer Abdullah resident Of Jinnah Colony Mianwali, whereas the three minor kids were also sitting in the rare seat of the Car. On thorough search of the Motorcar in question by the SI SIC Sulman Hundal (P.W.3) narcotics were detected in the CNG Cylinder, which was opened, out of which 30 packets charas garda, wrapped in plastic envelope, were recovered. Each packet weighing 1200 grams and total charas weighing, 36 Kgs.. Were recovered. From each packet of the recovered charas 10 grams were separated for chemical analysis. From physical search of the convict-appellant Rs,3900 in cash (P.3), photocopy of NIC (p.4) and Nokia Mobile phone set along with sim (p.5) were recovered by Sulman Hundal P.W.3.
Similarly from the physical search of the lady accused by lady Constable Rukhtara Rs,6700 (P-6), Nokia Mobile phone set along with sim (p.7), and a hand purse (p,5) were recovered. All the narcotics, the articles of the body search of the accused, Motorcar in question, and CNG cylinder were taken into possession by Sulman Hundal vide recovery memo Exh.P.W.3/1 in presence of marginal witnesses and on his report in the shape of Murasila Exh. P.W .3/2 a case Vide F. I. R . No .
49 dated 29-4-2008 under section 9(c) C.N.S.A. Was registered against both the accused at Police Station ANF Peshawar and they were arrested red handed on the spot. Sulman Hundal P.W.3 then prepared cards of arrest Exh.P.W.3/3 and 3/4 recorded the statements of the P.Ws. Who were present on the spot at the time of recovery of the contraband charas. He also drafted application Exh. P.W .3/5, for chemical analysis of the samples, to verify as to whether the recovered contraband were actually charas or otherwise.
3. During the course of interrogation the appellant stated that the recovered contraband .Were given to them by one Haji Nazeer of Bara and Abdul. Aziz of Peshawar City, however due to lack of, their complete addresses, the I.O. Could not trace them out. FSL report placed on file is Exh.P.W.3/6, which is in positive and the Registration copy of the seized Motorcar available on file is Exh.P.W.3/7.
He also drafted a letter Exh.P.W.3/8 to the concerned MRA for verifying its owner, but no reply has been received from the quarter concerned.
4. After completion of investigation in the case challan was submitted in the learned trial Court, who after delivery of necessary/relevant documents within the meaning of sections 241-A/265- J(c), Cr.P.C. To the accused, charge sheeted him for the commission of the offence in question and formal charge was framed against him, to which he pleaded not guilty and claimed trial. Thus, trial commenced.
5. The prosecution in order to prove its case against the appellant produced in all five witnesses before the trial Court.
6. P.W.1 Azhar Hussain FC Police Station ANF D.I.Khan was present with the 1.0. Who handed over that Murasila to the Moharrir concerned for incorporating the same into the F.I.R. He also handed over 30 sealed parcels containing samples of charas to the FSL at Rawalpindi. P.W.2 Sardar Abdul Waheed AD ANF Peshawar submitted complete challan against the accused in the trial Court. P.W.3 Suleman Hundal, S.I. SIC Police Station ANF Peshawar investigated the case and completed all the legal formalities as stated earlier. P.W.4 Asmatullah was the member of the team, who accompanied the I.O. To the spot, he watched the whole proceedings of the recovery of contraband charas and reiterated the whole story in his statement. P.W.5 Ishfaq Hussain Moharrir received the Murasila, which he incorporated into the F.I.R. Exh.P.W.5/1.
7. After recording evidence of the above witnesses, available on the file of the trial Court in detail, the accused-appellant was examined under section 342, Cr.P.C. Wherein he denied all the allegations made against him by the prosecution. He neither opted to give statement on Oath under section 340(2), Cr.P.C. Nor wanted to produce any evidence in his defence. After conclusion of the trial accused-appellant was convicted and sentenced, details of which are mentioned in the earlier part of this Judgment.
8. Muhammad Jamil Khan Khattak, the learned counsel for the appellant contended that how in the CNG Gas kit 36 Kgs charas can be put through Nozzle having half an inch hole and how it could be brought out of it. He also argued that nothing has been recovered from the immediate/personal possession neither of the appellant nor during the course of investigation the L 0. Has collected any material to prove that the appellant is the owner of the seized Motorcar nor he is in possession of any valid document, on the basis of which one could presume that he is owner of the vehicle in question. He further contended that the convict-appellant has no knowledge as to what has been kept in the secret cavities of the vehicle in question; that the prosecution has failed to lay hands upon the actual owners of the contrabands tecovered from the vehicle. He lastly contended that the convict-appellant is a heart patient, therefore, he may be released on the ground of sentence already undergone by him.
9. On the other hand the learned State Counsel vehemently opposed the arguments of the learned counsel for the appellant saying that the arguments advanced by the, learned counsel for the appellant have no substance, being baseless; that the appellant has been arrested red handed on the spot after having been .Found in possession of a huge quantity of charas weighing 36 Kgs.
From the secret cavities of the Motorcar bearing Registration No,LEF 7279, driven by the accused- appellant, which led to the recovery of contrabands, taken into possession vide recovery memo.
Exh.P.W.3/1, which was duly testified by Sulman Hundal S.-I. Police Station ANF (P.W.3), who recorded his statement before the Court, which was not at all shattered during lengthy cross-examination and that is the reason that the learned counsel for the appellant could not point out any glaring contradiction or deliberate improvement in the statements of the P. Ws. To discard his testimony. It was also contended that the FSL report in respect of the samples, which were separated from the recovered stufts, is in positive and no question during cross-examination has been put to the I.O.
Regarding its tampering by the prosecution. Thus, under section 29 of the C.N.S.A. The burden shifts to the accused to disprove that he is innocent, but he has failed to discharge his burden in this regard. Lastly he contended that 'appraisal of the entire evidence on file leads him to state at the bar that the learned trial Court has fully and correctly appreciated the evidence on record and thus its judgment is' well reasoned and well founded and so needs no interference by this Court.
Reliance is placid on Ismaeel v. State (2010 SCM R 27). He also contended that the contention of the learned counsel for the appellant that how is it possible that 30 packets of charas garda could be put through the narrow Nozzle of the CNG Kit, is not tenable, because it was the appellant, who skillfully put the said contraband charas in the CNG Kit. Thus, the mode and manner to put it in the CNG Kit must be best known to him and the contention that the appellant is a heart patient is also without force, because no such evidence has been produced by the appellant, documentary or oral. Moreover, a huge quantity of contraband charas has been recovered from the secret cavities of the seized Car, which was being driven by this accused and a person having been found in possession of 10 K.Gs. Contraband charas/ heroin, is liable to be awarded punishment of not t less imprisonment for life.
10. After appraisal of evidence and material available on file we have come to the irresistible conclusion that the learned trial Court after appreciation of evidence has rightly held that the prosecution had undoubtedly established the recovery of contraband in the shape of charas garda weighing 36 kgs from the secret cavities i,e, (CNG Kit) driven by convict-appellant, regarding which he had full knowledge and in this respect arguments advanced by counsel for the appellant has no force. Witnesses appeared in the trial Court against the appellant had no enmity or malice against him. Thus, though they are official witnesses of ANF, but in the absence of above said enmity or grudge, they are as good witnesses as other public witnesses and their testimony could not be discarded or brushed aside on the sole ground that they are members of ANF. It is evident from the evidence on record that all the witnesses of the prosecution who had witnessed the recovery of the contraband mentioned above from the Motorcar mentioned above, which was being driven by the appellant, have remained consistent, so far as the time, place and mode of recovery is concerned, despite lengthy cross-examination of the defence. Hence we find no reason to discard their testimony. Furthermore, it is established from the evidence on file that the learned trial Court had 'rightly rejected defence version of the appellant after considering each and every piece of. Evidence on record before recording conviction against the appellant, therefore, we are of the considered view that the prosecution has successfully established its case through confidence inspiring evidence of eye-witnesses recorded before the trial Court, which was not at all shattered by the defence during cross-examination. Needless to mention here that the FSL report in respect of the samples separated from lot of contraband is in positive. Moreover the appellant has also not discharged his burden within the meaning of section 29 of C.N.S.A.
' So in view of the above discussion we hold that the impugned judgment and order of the trial Court are well founded and need no interference by this Court. Wisdom in this respect can be sought from Ismaeel v. State (2010 SCM R 27). Consequently the conviction and sentence of the appellant is maintained and the appeal in hand being devoid of force is hereby dismissed.