' MUHAMMAD NOOR MESKANZAI, J.---This appeal was filed against the judgment dated 29th September, 2007 passed by learned Special Judge, C.N.S. Balochistan, Quetta (hereinafter referred to as the Special Judge, C.N.S.). The appellants were convicted and sentenced in the following term: -- "Under section 9(c) of C.N.S. Act, 1997 to suffer R.I for life each with fine of Rs,200,000 each, or in default thereof to further undergo six months' S.I. Each. Benefit of section 382-B, Cr. P. C. Was also extended in favour of appellants."
2. Briefly stated, the facts of instant appeal are that on 18th July, 2007, the ANF party under the supervision of Lt. Colonel Irfan Ahmed, Joint Director, ANF along with other ANF officials, Quetta, pursuant to spy information regarding smuggling of huge quantity of narcotics from Quetta to Turbat in a Coach bearing No,PB-0051 installed a Naka at Lakpass and started surveillance. On the fateful day, the Coach bearing No,PB-0051 came from Quetta side, which was intercepted on the pointation of informer. The driver Jangi Khan and Bashir Ahmed Conductor (appellants) were interrogated. During interrogation Jangi Khan and Bashir Ahmed became confused and disclosed that narcotics have been concealed in the secret cavities of Bus. It is alleged that duringsuch interrogation, a third person aged about 57 years made his escape good, however he was named as Abdul Raheem by informer, who was claimed to be identified on seeing. The driver Jangi Khan son of Abdul Qadir and conductor I3ashir Ahmed son of Ghulam Haider caste Lehri were arrested on the spot. It is alleged that the Bus was brought to ANF Police Station by ANF personnel due to security reasons and non-availability of proper arrangements, the search was conducted in ANF Police Station. At the pointation of Jangi Khan driver five (5) packets were recovered from secret cavities, whereas on the pointation of Bashir Ahmed 25 packets were recovered from other secret cavities. From both the secret cavities total 30 bags wrapped in white cloth were recovered, which were opened and opium was recovered. The recovered opium was weighed in presence of witnesses. The total 30 bags, 29 bags contained 10 kilograms each and one bag contained 8 kilograms opium total 298 kilograms opium was recovered. It is alleged that 4-4 grams opium from each bag, (total 120 grams) were separated for chemical analysis. Whereas the remaining recovered opium was sealed in the parcels and parcels Nos.2 to 31 were prepared. It is alleged that after recovery of opium, the accused Bashir Ahmed made a disclosure that the said recovered opium belong to accused Haji Abdul Raheem Jattak and they had to supply the opium to one Obaid-ur-Rehman son of unknown caste Baloch resident of Mand Ballo. The recovered opium and Bus were taken into possession through separate Fards.
3. After investigation challan was submitted in the Court of Special Judge, CNS Balochistan, Quetta.
The charge was framed and read over to the appellants, to which they pleaded not guilty and claimed trial. The prosecution in order to substantiate the accusation produced the following three P.Ws.:-- ' P.W.1 Naib Subedar Shabir Hussain Anjum, Complainant of the case.
' P.W.2 Constable Nazeer Ahmed, Mushir of the recovery memos.
' P.W.3 Naib Subedar Muhammd Rafique, Investigating Officer.
4. At the end of prosecution evidence, the appellants were examined under section 342 Cr.P.C, wherein they denied the incriminating pieces of evidence. However, the appellants neither opted to record their statements on oath as envisaged under section 340(2), Cr.P.C. Nor produced any D.Ws.
In their defence.
5. On conclusion of trial, the learned Special Judge, CNS found the appellants guilty of the offence and sentenced them as mentioned hereinabove, hence this appeal.
6. The learned counsel for the appellants submitted that the appellants had no knowledge regarding concealment of contraband items in the Bus nor they were aware of any secret cavity made by the owner of the Bus. It was maintained that the appellants did not escape/abscond because they were absolutely ignorant of any contraband items concealed in the secret cavities of the Bus, which can be treated as a circumstance qua the innocence of the appellants. The Bus was not produced before the trial Court during trial, as such the omission on the part of prosecution is a circumstance sufficient in itself to vitiate the trial. It was next contended that there is no independent recovery witness. The case of prosecution is full of doubts and the material available on record is not sufficient to warrant conviction. The trial Court has misread the evidence and the facts have been misconstrued/misappreciated. Admittedly the appellants are neither owners of the bus/coach nor they have got any concern with the recovered opium. The owner of the said contraband items was provided a chance to make his escape good and appellants have been wrongly dragged in the case. It was strenuously urged that the meagre quantity taken for samples does not constitute a valid ground for recording conviction in an offence under section 9(c) of the C.N.S. Act, 1997. To substantiate his view, the learned counsel for the appellants placed reliance on the following judgments and requested for acceptance of appeal by acquitting the appellants:-- ' MLD 2009 Peshawar page 122 MLD 2000 Quetta page 618 YLR 2009 Karachi 1724 2009 SCMR 431 PCr.LJ 2002 Karachi page 1086 ' Unreported judgments of this Court passed in Criminal Appeal No,226 of 2006 (titled as Hafeezullah and another v. The State).
' On the other hand, the learned Special Prosecutor vehemently opposed the contentions so put forth by the learned counsel for the appellants. It was submitted that the prosecution has proved its case against the appellants by producing independent and confidence inspiring evidence. It was maintained that both the appellants are admittedly driver and conductor of the Bus respectively and it is beyond imagination that the driver and conductor were unaware of the secret cavities made in the Bus. It was maintained that the recovery has been effected on the pointation and instance of the appellants and in this respect disclosure memo was prepared. The learned Special Prosecutor submitted that the objection with regard to the samples is of no avail, ,because the prosecution has collected the samples from each bag and secondly the recovery and the nature of the contraband items have not been disputed by the defence. The learned Special Prosecutor finally requested for dismissal of the appeal.
7. We have considered the contentions put forth by the parties learned counsel and have gone through the record minutely.
8. The case of prosecution as per the record is that a credible information was received by the ANF Officials, Quetta on 18th July, 2007 that through Bus bearing No,PB-0051, huge quantity of narcotics is being smuggled from Quetta to Turbat. Upon this information, a raiding party was constituted under the supervision of Lt. Colonel Irfan Ahmed and at 2-00 p.m. The raiding party left for Lakpass and started surveillance. From Quetta side a Bus bearing No, PB-0051 was seen coming and on pointation of informer, the Bus was intercepted. The driver Jangi Khan and conductor Bashir Ahmed were arrested. Upon interrogation, the accused disclosed that in secret cavities of the Bus contraband items are available. Taking the benefit of passengers Abdul Raheem made his escape good. At the site on account of security reasons and lack of arrangement to pull out the narcotics from the secret cavities made in the Bus, the Bus was brought to ANF Station. Where on the pointation of Jangi Khan, from the secret cavities of the Bus, five white bags were recovered, whereas at the pointation of Bashir Ahmed 25 other white bags were recovered, which were opened and checked. In all 298 kilograms opium were recovered, 29 bags containing 10/10 kilograms each and one bag containing 8 kilograms were found in secret cavities. From each bag 4-4 grams was separated for chemical analysis and the bags were sealed. Bashir Ahmed disclosed that the narcotics belonged to accused Abdul Rahim Jattak and they had to supply the said narcotics to one Obaid-ur-Rehman at Mand Ballo. The recovered articles-were taken into possession vide Exh.P/1-A and the vehicle through Exh.P/1-B. Personal search of the accused were conducted vide search memo Exh.P/1-C and Exh.P/1-D. The Fards were prepared at ANF Police Station as Exh.P/1-C. P.W.1 acknowledged his signature on all the memos and F.I.R. In cross- examination he stated that all the passengers were brought to ANF Police Station. The informer also made pointation of the passengers but none of the passengers were made witness to the recovery. In reply to another question, he expressed his ignorance that the contraband items were concealed in secret cavities of the Bus by Abdul Rahim. In reply to another question, the witness expressed his ignorance that the driver and conductor boarded the Bus when the same was ready for departure in all respect. It was denied that the accused did not make disclosure. It was also denied that the accused have got no concern with the contraband items. It was also denied that the accused did not make pointation regarding narcotics.
' P.W.2 and P.W.3 made almost the same statement recorded by P.W.1 in all respect. Despite lengthy cross-examination, the defence failed to create any dent or extract anything favourable to appellants. The appellants got recorded their statements under section 342, Cr.P.C. For ready reference questions Nos.4, 5 and 11 and answers whereof are reproduced:-- Relevant questions put to appellant Jangi Khan while recording statement under section 342, Cr.P.C.
Q.No,4. Is it correct that 30 sealed bags Art/1 to Art/30 of opium which were recovered on your and on the pointation of co-accused produced before the court as Art/1 to Art/30 and opium was identified by P.W.2 packed in 30 packets as art/31?
Ans:- I do not know. Q.No,5. Is it correct that Bus No, PB-0051 was taken into possession vide memo Exp/1-B and your personal search memo was prepared by the complainant as Expa -D?
Ans:- Yes Sir.
Q.No,11. Do you want to say something else?
Ans:- I am innocent. I was not in knowledge of anything/ narcotics concealed in said Bus and that has been done by the owner of the Bus. I came in bus when everything was ready on 18-7-2007.
Relevant questions put to appellant Bashir Ahmed while recording statement under section.342, Cr.P.C.
Q.No,4. Is it correct that 30 sealed bags Art/1 to Art/30 of opium which were recovered on your and on the pointation of co-accused produced before the court as Art/1 to Art/30 and opium was identified by P.W.2 packed in 30 packets as art/3I?
Ans:- I do not know. Q.No,5. Is it correct that Bus No, PB-0051 was taken into possession vide memo Exp/1-B and your personal search memo was prepared by the complainant as Expa -D?
Ans:- Yes Sir.
Q.No,11. Do you want to say something else?
A n s -I am innocent I was not in knowledge of anything/narcotics concealed in said Bus and that has been done by the owner of the Bus. I came in bus when everything was ready on 18-7-2007.
9. Admittedly appellant Jangi Khan was the driver of the Bus, whereas Bashir Ahmed was conductor. Soon after their arrest, they made a disclosure regarding the secret cavities of the Bus and pursuant to the potation so made by the appellants, recovery of contraband items were effected. The disclosure so made followed by the recovery was something not in the knowledge of the ANF officials, therefore, in our considered view, the disclosure followed by the recovery is a circumstance within the meaning of Article 40 of the Qanun-e-Shahadat Order, 1984 and can be used against the defence by the prosecution. Secondly the recoveries of contraband items stand established not only through the evidence of the prosecution rather the defence has not A disputed the recovery from the Bus. So in such circumstances, the burden otherwise shifts upon the defence to prove the fact that the appellants were not aware of the contraband items, concealed in the secret cavities of the Bus.
10. The scrutiny of record further confirms that the prosecution has successfully proved the recovery of contraband items from the Bus. The appellants have not entered into witness box to record their statements under section 340(2), Cr.P.C. Nor they have produced any defence witness.
However they have recorded their statements under section 342, Cr.P.C, wherein the recovery from the Bus has not been denied except the lack of knowledge on the part of appellants. There is no cavil with the legal proposition that an accused is not bound to take special plea qua his innocence, even in normal cases once an accused takes special plea then he is required to prove the same. As far as the cases under C.N.S. Act are concerned, the prosecution is required to discharge the initial burden, whereas in this case appellants do not dispute the recovery except lack of knowledge on their part. Since the appellants are respectively driver and conductor of the Bus, therefore, they were under legal obligation to have satisfied the conscious of the court by creating reasonable circumstance justifying the inference that both of them were in fact not aware of concealment of contraband items, as they figure only when the Bus is ready for departure. Here in this case not only the appellants have failed to attract any such circumstance to create a doubt in the case of the prosecution qua their involvement rather they made disclosure regarding the concealment of contraband items as discussed hereinabove (supra). The business of narcotics is a menace for the entire society and requires to be curbed through iron hands, therefore, the Courts must have dynamic and pragmatic approach. If the conscious of the Court is satisfied regarding involvement of an accused then the technicalities to be avoided. By holding the view, we are fortified by the judgment reported in 2010 SCMR page 27 (titled as Ismaeel v. The State relevant at page 31). Relevant observations therefrom are reproduced hereinbelow "It is now settled proposition of law by afflux of time that in the case of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country, if the case stands otherwise proved the approach of the Court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of the cases. The Court should consider the entire material as a whole and if it is convinced that the case is proved then conviction should be recorded notwithstanding procedural defects as observed by this Court in Munawar Hussain's case 1993 SCMR 785".
11. Coming to the argument regarding the ownership of Bus, there is no cavil with the fact that the appellants are not the owners of the Bus nor for that matter this is the case of prosecution that the appellants were the owners of the Bus. The liability within the ambit of section 6 of C.N.S. Act, 1997 extends to a person, who is in possession of contraband items. Section 6 of the Act, 1997 besides its other ingredients specifically prohibits the possession, transportation and , delivery of narcotics and the case of appellants falls within the four corners of section 6 of the Act, 1997. Therefore, the argument that the appellants are not owners of the Bus has no force. As far as the lack of knowledge on the part of the appellants is concerned, according to the prosecution case, the recovery from the secret cavities was effected at the pointation of both the appellants. Secondly, there is no evidence on the part of appellants that they were having no nexus with the Bus. Thirdly the appellants even did not bother to enter in the witness box to confirm or substantiate their version that they had no nexus and concern with the Bus except the time of departure, therefore, in view of overwhelming evidence of prosecution, it is not only difficult rather impossible to believe that the appellants were having no knowledge of contraband items. As far as non-preparation of pointation memo, the F.I.R. Specifically finds mention that both the appellants have made disclosure and pursuant to their pointation, the recoveries were effected. Moreover, there is a disclosure memo prepared at the instance of appellant Bashir Ahmed. Under such circumstances, the argument raised by the learned counsel for the appellants lacks legal weight/sanctity, as such is repelled. The non-production of Bus before the Court is not fatal to the prosecution case as the appellants admitted their presence in the Bus as well as recovery of contrabands from cavities of the Bus. The learned counsel placed reliance on the unreported judgment of this Court i,e, Criminal Appeal No,226 of 2006 titled as Hafeezullah and another v. The State. As far as the dictum laid down in Criminal Appeal No, 226 of 2006 is concerned, in that case both the appellants had disputed their status as driver and cleaner. Moreover, in that case P.W.1 could not describe the place where the occurrence took place. P.W.1 has stated the time of reaching of Police at the venue at 12-45 a.m. And the F.I.R. Was stated to have been lodged at 3-00 a.m., whereas according to P.W.2, the Police party reached at the venue at 10-30 p.m. And the party reached back at Police Station at 12-30 a.m. Seizure memo was prepared at 1-00 a.m., so in that case, the non-production of the Truck was not the sole ground for acquittal. Moreover, in that case the P.Ws. Were unable to describe the colour, model and name of owners of the Truck, whereas in this case, there is no such lacuna. As far as the question of samples and the citations referred to and relied upon are concerned, the samples have been taken from each and every packet, therefore, the citation so referred to, are inapplicable in the instant case.
In view of what has been discussed hereinabove, we find no ID merit in the instant appeal, which is dismissed accordingly.