' SHAH JEHAN AKHUNDZADA, J.---The appellant was tried, found guilty, convicted under section 9(C)
CNSA, 1997 and sentenced to imprisonment for life with a fine of Rs,200,000 or in default to suffer further two years' S.I. By the learned Judge Special Court (CNS) Peshawar vide his judgment dated 27-1-2010.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 382-B, Cr.P.C. The seized Motorcar No,LOX 3717 has been confiscated to the State. 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 to the highups of the ANF on 27-8-2008 that smugglers of narcotics would try to smuggle huge quantity of narcotics from Tribal Territory to Peshawar and then to Abbottabad by Motor Car Centro Hyundai Silver Colour bearing Registration No,LOX 3717. Accordingly picket was laid on Bara Road at Pishtakhara Chowk. During the course of Nakabandi, the said Motor Car appeared coming towards Peshawar side and was signaled to stop, which was stopped. The Driver after parking the vehicle tried to escape from the scene, but he was overpowered by the ANF Staff. On inquiry the Driver disclosed his name as Naveed Shahzad, the present appellant. On search of the Motorcar in question by the SI Mumtaz Hussain (P.W.4) four packets of heroin, weighing 4 K.Gs. Wrapped in cloth and plastic envelops were recovered from beneath the front seat. On further search of the vehicle. From its rare seat, 99 K.Gs charas garda was also recovered. From each packet of the recovered heroin 5/5 grams were separated and from each packet of charas 10/10 grams were separated for chemical analysis.
' From physical search of the appellant Rs,500 were also recovered. A case vide F.I.R. No,80 dated 27-8-2008 under section 9(C) CNSA was registered against the appellant at Police. Station ANF Peshawar. He was arrested red handed on the spot. All the recovered materials, the Motorcar with its key were taken into possession by Mumtaz Hussain P.W.4, vide recovery memo Exh.P.W.4/1 in presence of the marginal witnesses. He also prepared the Murasila Exh.P.W.4/2 and sent the same to the Police Station for registration of the case through Shahidur Rehman constable. He then prepared the card of arrest of the accused-appellant Exh.P.W.4/3 and recorded the statements of the P.Ws. Who were present with him at the time of recovery of the contraband heroin and charas.
He also drafted application Exh.P.W.4/4, for chemical analysis of the samples, to verify as to whether the recovered contraband were actually heroin and charas or otherwise.
3. 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 the accused- appellant pleaded not guilty and claimed trial. Thus, trial commenced.
4. The prosecution in order to prove its case against the appellant produced in all five witnesses before the trial Court.
5. P.W.1 Shahid Ali constable handed over four sealed parcels of heroin and 99 packets of charas to the FSL at 'Rawalpindi. P.W.2 Sardar Abdul Waheed submitted complete challan against the appellant in the trial Court. P.W.3 Ishfaq Hussain, received the Muasila, which he incorporated into the F.I.R. Exh.P.W.3/1. P.W.4 Mumtaz Hussain S.-I. Police Station AN Peshawar investigated the case and completed all the legal formalities. P.W.5 Hayat Shah HC Police Station ANF Peshawar) was the member of the team, who accompanied the I.O. On the spot. He watched the whole proceedings of the recovery of contraband heroin and charas, therefore, he was made witness to the recovery memo Exh. P. W .4/1.
6. 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 trial accused-appellant was convicted and sentenced, details of which are mentioned in the earlier part of this Judgment.
7. Ms. Farhana Marwat, the learned counsel for the appellant argued that nothing has been recovered from the immediate/personal possession of the appellant nor during the course of investigation the I.O. Collected any material to prove that the appellant is the owner of the seized Motorcar Centro Hyundai Silver Colour bearing Registration No,LOX 3717, 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. She 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 those persons, who were actual owners of the contrabands recovered from the vehicle. In support of her contentions she relied upon Muhammad Shah v. State (2010 SCM R 1009) and Gul Meer v. State (2011 YLR 411).
8. 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 has 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 heroin weighing 4 K.Gs. And charas weighing 99 K.Gs. From the secret cavities of the Motorcar Centro Hyundai Silver Colour bearing Registration No,LOX 3717, driven by the accused-appellant, which led to the recovery of contrabands, taken into possession vide recovery memo. Exh.P.W.4/1. The recovery of the narcotics from the vehicle being driven by the appellant was duly testified by Mumtaz Hussain S.I. Police Station ANF (P.W.4) and Hayat Shah HC Police Station ANF (P.W.5) in their statements before the trial Court, which was not at all shattered during cross-examination and that is the reason that the learned counsel for the appellant could not point out any glaring contradiction or elaborate improvement in their statements to discard their testimony. It was also contended that the FSL report in respect of the samples, which were, separated from the recovered stuffs of the contrabands from the secret cavities of the vehicle driven by the appellant is in positive and no question during cross-examination has been put to the I.O. Regarding its tampering by the prosecution. He further contended that section 103, Cr.P.C. Is not applicable in such like cases and the prosecution has reasonably established its case beyond any shadow of doubt Thus, under section 29 of the CNSA 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 file and thus its judgment is well reasoned and well founded and so needs no interference by this Court. Reliance is placed 'on Ismaeel v. State (2010 SCM R 27).
9. 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 charas weighing 99 K.Gs.
And heroin powder weighing 4 K.Gs. From the secret cavities 'of Centro Hyundai Silver Colour Motorcar bearing Registration No, LOX 3717, driven by convict-appellant, regarding which he had full knowledge. Witnesses appeared in the trial Court against the appellant had no enmity or malice against him. Thus, though they are official witnesses of ANF, however, in the absence of above said enmity or grudge, they are as competent 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 on record 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 accused, therefore, we are of the considered view that the prosecution has successfully established its case through confidence inspiring evidence of eye-witnesses, namely Mumtaz Hussain S.-I. Police Station ANF (P.W.4) and Hayat Shah HC Police Station ANF (P.W.5) 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 Exh.P.W.4/6 in respect of the samples separated from lot of contrabands is in positive. Moreover the appellant has also not discharged his burden within the meaning of section 29 of CNSA. Thus we are of the view that the arguments advanced by the learned counsel for the appellant has no force in the light of available evidence on record and the judgment cited by the learned counsel for the appellant having distinguishable facts and circumstances from that of the facts and circumstances of the case in hand is also not taken into consideration.
' So in view of the above discussion we hold that the impugned judgment and order of the trial court is well founded and needs no interference by this court. In this regard reliance is placed on Ismaeel v. State (2010 SCM R 27). Consequently the conviction and sentence of the appellant is maintained arid the appeal in hand being devoid of force is hereby dismissed.