' MUHAMMAD NOOR MESKANZAI, J.---Instant appeal is directed against the judgment dated 21st October, 2008 passed by the learned Special Judge, Control of Narcotics Substances, Quetta (hereinafter referred to as Special Judge) whereby the appellant was found guilty under section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred to as Act, 1997) and was sentenced as under:--
(i) to suffer life imprisonment with fine of Rs, 200,000 (Rupees two lacs only).
(ii) In default of payment of fine to further undergo for a period of one year's S.I. Benefit of section 382-B, Cr. P. C. Was extended in his favour.
2. Facts relevant for disposal of instant appeal are that on 10th November, 2007, complainant Shahid Qadeer ASI P.S Airport, lodged F.I.R. No,221 of 2007 under section 9(c) of the Act, 1997, alleging therein that on the fateful day he received a credible information regarding trafficking of narcotics from Gulistan to Quetta via Baleli Check Post, Quetta in a white colour Landcruiser bearing Registration No,BC-8502. On such information they started surveillance/checking of vehicles and suspects vigilantly. At about 3-45 p.m. They found a vehicle being driven by appellant accompanied by co-accused Wali Muhammad sitting on front seat. The same was intercepted and checked. During search they recovered 150 slabs (weighing 150-kgs) baked charas, which was concealed in the secret cavities of vehicle. The appellant along with co-accused were arrested and accordingly a Murasla was sent for registration of case. After registration of case, the investigation commenced. On completion of investigation, challan of the case was submitted before the 'Special Judge, Quetta for trial.
3. On 9th April, 2008 charge was framed to which the appellant did not plead guilty and claimed trial. Prosecution to substantiate the accusation against appellant produced P.W.1 Shahid Qadeer ASI (complainant), P.W.2 Muhammad Zahir H/C the recovery witness and P.W.3 Ayaz Haider the (Investigating Officer). Thereafter the appellant was examined under section 342, Cr.P.C., wherein he denied the incriminating pieces of evidence. However, neither he opted to record his statement on oath as envisaged under section 340(2), Cr.P.C. Nor produced any witness in his defence.
4. The learned trial Court after evaluating the evidence and hearing the parties found the appellant guilty under section 9(c) of the Act, as such convicted and sentenced him as mentioned above, however, co-accused was acquitted of the charge, hence instant appeal.
5. We have heard Mr. Tahir Hussain Khan Advocate for appellant whereas Syed Pervaiz Bukhari, Additional P.-G. Represented the State.
' Learned counsel for appellant argued with great vehemence that on same set of evidence, co- accused was acquitted of the charge but the appellant was convicted. Learned counsel stressed that appellant has been substituted for Naimatullah whereas in fact the appellant is Nazar Gul.
P.W.2 is a stock witness of prosecution, Learned counsel emphasized that according to F.I.R. In all, 150-Kgs baked charas was recovered from the vehicle whereas according to P.W.1 after separating samples for chemical analysis, still the quantity of recovered charas was 150-Kgs. He further argued that the samples were sent for Chemical Expert's report after delay of five days which throw serious shadow of doubt on prosecution case entitling the appellant to be acquitted of the charge by extending benefit of doubt his favour. The evidence produced by the prosecution was not of such standard which could constitute reasons for recording conviction against appellant but the trial Court failed to take into consideration this important aspect of the case and illegally convicted the appellant. He stressed that undue weight was given to prosecution evidence. The recovery was not testified by any independent witness. He relied upon 2010 SCMR 841 and 2010 SCMR 927.
' Whereas, on the other hand learned Additional. P.-G. While controverting the contentions advanced by learned counsel for appellant seriously opposed the appeal and submitted that the appellant has not disputed his presence and arrest from the vehicle. So much so recovery of contraband item i,e, charas from the vehicle has not been disputed by the appellant. The Expert's positive report proved that the substance recovered from the vehicle was charas, as such it cannot be said that prosecution failed to prove the charge against appellant. He stressed that the prosecution has fully established the guilt of appellant to the hilt and once prosecution succeeds in establishing recovery, the burden shifts upon accused to prove his innocence. He next argued that the recovery was witnessed by P.Ws. And the prosecution produced eye-witnesses of the recovery.
The learned trial Court after proper appraisal of evidence has convicted the appellant, as such; the judgment impugned herein is not open to any exception. The defence has failed to make out a case for acquittal, as such; the appeal is liable to be dismissed.
6. We have considered the contentions put forth by the parties' learned counsel and have gone through the record of the case minutely. It may be observed that as per F.I.R. The police personnel were on duty at Baleli Check Post. They received secret information regarding smuggling of contraband items from Gulistan to Quetta by means of vehicle bearing Registration No,BC-8502. At about 3-45 p.m. They found a vehicle being driven by appellant accompanied by co-accused Wali Muhammad sitting on front seat. The same was intercepted and checked. During search they recovered 150 slabs (weighing 150-kgs) baked charas, which was concealed in the secret cavities of vehicle. To prove the accusation prosecution produced P.W.1 Shahid Qadeer ASI (complainant) produced Exh. P/1- A F. I. R. , P. W .2 Muhammad Zahir H/C the recovery witness produced recovery memo Exh.P/2-A and P.W.3 Ayaz hlaider the (Investigating Officer) produced Exh.P/3-A Expert's report. All the prosecution witnesses were cross-examined at length but the defence failed to create any dent or doubt in prosecution A case. The P.Ws. Fully supported the prosecution case.
Despite lengthy cross-examination the P.W.s remained firm and could not be shaken during the cross-examination. F.I.R. Was lodged promptly. Report of B Ballistic Expert further proved that the recovered item were Charas. The trial Court after proper appraisal of evidence and taking all aspects of the case in to consideration has found the appellant guilty and by delivering a well- reasoned judgment rightly convicted the appellant. Perusal of judgment reveals that there is no defect in the same nor the defence could point out any illegality or irregularity in the judgment impugned. So far the contention of learned counsel that samples were sent to Chemical Expert after five days is concerned, it may be observed that the said argument is not helpful to the defence for the reasons. Firstly, the defence failed to point out that the samples have been tampered with and C secondly; in our perception the same is not fatal to the prosecution because the safe custody of samples have not been disputed by the defence. The next contention of learned counsel that the appellant has been substituted for Naimatullah whereas he is Nazar Gul has too no force because the defence has not produced an iota of evidence which could prove such contention. Such a plea was raised for the first time before this Court, which, in our considered opinion is neither plausible nor believable. Suffice to observe that legally if the accused raises a special plea, he is bound to prove the same there is no material whatsoever to support the argument. The learned trial Court after proper appraisal of entire evidence has reached to a proper conclusion. There is no misreading or non-reading of evidence. The prosecution has succeeded to establish the guilt to the hilt. Appellant was intercepted at a blockade, therefore, in such like cases, there is hardly any occasion for availability of private witnesses. Furthermore, this is a judicially recognized fact that in such like eases the general public remains reluctant to become a witness and non-association of private witness is not fatal to the prosecution case. In narcotics cases approach of the Court should be dynamic and minor irregularity or discrepancies must be overlooked. In this regard we are fortified by the dictum laid down in the judgment titled as Ismaeel v. The State' reported in SCMR 2010 page-27. Relevant observations therefrom are reproduced hereinbelow:-- "It is now settled proposition of law by flex 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".
7. As far as the acquittal of co-accused on the same set of evidence is concerned, this point is not helpful to appellant because the learned trial Court has dealt with this aspect of matter very competently by holding as under:- "So far as the case of co-accused Wali Muhammad is concerned, who according to defence plea after taking lift was on his way to Quetta, arrested by the police and involved in the instant case,.
In my opinion his case is on different footings as there is no direct or indirect evidence connecting him with the commission of crime nor his knowledge about the concealment of contraband could be brought on record nor any documentary evidence with F regard to the ownership of vehicle etc. Could be recovered from his particularly with the allegation of his having knowledge of concealment of contraband rather his defence plea was supported. Furthermore he is an old age person of more than 65 years having no relationship with the accused Naimatullah nor he is of his tribe person. Apart from this a letter dated 14-11-2007 is also available on record submitted by the relatives of accused Wali Muhammad before SHO Police Station Airport, Quetta wherein they complained the disappearance of accused, who was on his way from Kuchlak to Quetta---for which in my opinion he should be benefited plus during the course of arguments learned ADA did not controvert the arguments advanced by the learned counsel for accused Wali Muhammad with regard to his innocence with the submissions that no concrete evidence connecting the accused with the commission of crime is available on record."
8. We have no reason to differ with the findings recorded by the trial Court which are legal, plausible and justifiable.
9. Even otherwise, the courts are required to sift the grain from chaff. Applying this principle, it can safely be concluded that the appellant being in conscious possession as driver of the vehicle was correctly found guilty and rightly sentenced.
' In the light of what has been discussed hereinabove, we are of the considered opinion that the prosecution has fully established the guilt of appellant to the hilt; whereas the defence has failed to make out a case for interference in the judgment impugned. Thus; the appeal lacking legal weight is dismissed, whereas; the conviction and sentence awarded by the learned trial Court vide judgment impugned dated 21st October, 2008 is maintained.