1. MAZHAR ALAM KHAN MIANKHEL, J.---This appeal is directed against the judgment dated 12-11-2009 passed by the learned Judge, Special Court (CNS), Peshawar whereby appellant, Rahirn Gul was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to rigorous imprisonment for life with a fine of Rs.50,000 or in default thereof to suffer one year simple imprisonment. Similarly, Criminal Appeal No.614 of 2009 is directed against the same judgment, whereby appellant, Nasrullah was also convicted under the same offence and awarded the same sentence of imprisonment as well as fine. However, benefit under section 382-B, Cr.P.C. Was extended to them. Through this judgment, we propose to decide both the appeals as the same are the outcome of same judgment involving similar facts and question of law.
2. Brief facts of the case are that complainant, Sardar Abdul Waheed, Inspector, on the information conveyed to his high-up by the informer that huge quantity of narcotics would be smuggled in Truck No.GLT-3868 from tribal territory to Punjab via Motorway, laid a picket at Toll Plaza near Nissatta Interchange along with other ANF officials. In the meanwhile, the truck in question was found coming from Charsadda side towards the Toll Plaza, which was accordingly stopped. The truck driver disclosed his name as Nasrullah while the person sitting on the second seat, disclosed his name as Rahim Gul. On search, from the roof cabin of the truck 60 packets of charas `pukhta' were recovered. Out of the recovered packets, 12 packets were having 4/4 slabs in each packet, weighing 1200 grams each, total 14.400 kilograms whereas 28 packets were having 12/12 slabs each slab weighing 1200 grams, total 33.600 kilograms Similarly, 20 packets were having 12/12 slabs in each packet, each slab weighing 1250 grams, total weighing 25 kilograms.
3. The weight of the whole stuff was thus found to be 73 kilograms. From each packet of the recovered charas, a small quantity was separated for chemical analysis and samples of 10/10 grams from each packet, total 60 samples, were prepared and sealed in parcels. The remaining charas was also sealed in three different sacks. On further search of the truck, a route permit in the name of Muhammad Rafiq was recovered from the dash-board. From the personal search of accused Nasrullah, an amount of Rs. 320 and that of Rahim Gui a cash amount of Rs.5,200, along with his identity card, mobile phone set Nokia, various visiting cards and chits were recovered. He arrested the appellants, drafted the murasila and sent to the Police Station for the registration of the case, where F.I.R. No.31 dated 22-3-2008 under section 9(c) of the Control of Narcotic Substances Act, 1997 was registered against the appellants in Police Station Anti-Narcotics Force, Peshawar. After completion of investigation, complete challan was submitted against the appellants to the Court for trial, where copies of the relevant documents as required under section 265-C, Cr.P.C. Were supplied to them. The charge was framed to which the appellants pleaded not, guilty and claimed trial.
4. The prosecution in order to prove the charge and substantiate the allegations levelled against the appellants, produced six (6) witnesses at the trial.
5. Ishfaq Hussain Muharrir, PS ANF, (P.W.1) had received the parcels of samples, remaining case property along with personal belongings of the accused and keys of the truck for safe custody in the Police Station Malkhana. He on the direction of I.O. Had sent the samples to the FSL Rawalpindi through Mushtaq Ahmad along with original application of the I.O. Addressed to the Chemical Examiner and other documents.
6. Ghulam Haider (P.W.2) was present on the spot. The I.O. Had handed him over the original murasila for taking to the PS. Accordingly, he delivered the same to Inspector Mumtaz Hussain, who after incorporating its contents into F.I.R. Handed over back the original murasila along with two copies of the F.I.R., which he delivered to the 1.0. On the spot.
7. Mumtaz Hussain (P.W.3) was present in the PS when P.W.2 brought the murasila, sent and signed by the I.O. He incorporated its contents into F.I.R. After registration of the case, he handed over the original murasila along with two copies of F.I.R. To him for taking the same to the spot.
8. Mushtaq Ahmad, FC (P.W.4) was handed over the parcel of narcotic samples, 60 in number, by the Muharrir of the PS along with application of the I.O., english docket and route permit for taking the same to FSL Rawalpindi. He handed over the samples and documents to the concerned officials at FSL and obtained the acknowledgment receipt, which on return to the PS was handed over by him to the Muharrir.
9. Hayat Shah, HC (P.W.5), besides being an eye-witness of the occurrence, had signed the recovery memo, Exh.P .W.5/1, as a marginal witness.
10. Sardar Abdul Waheed, AD, (P.W.6) had effected the recovery of charas from the truck in question, arrested the appellants, prepared their cards of arrest (Exh.P.W.6/2 and Exh.P.W.6/3) as well as samples for chemical analysis, drafted the murasila, sent the samples to FSL through his application (Exh.P.W.6/4), received its report (Exh.P.W.6/5), verified the particulars of the truck from the Excise Department through letter (Exh.P .W.6/6) and received reply (Exh.P .W.6/7). After completion of investigation, he submitted complete challan against the appellants in Court.
11. On the conclusion of the prosecution evidence, the appellants were examined under section 342, Cr.P.C. Wherein they denied the charge. While answering question No.8 they recorded their reply as under:-- "I am innocent and falsely been implicated in the instant case. Neither I was arrested on the spot nor any recovery was effected from me. I was arrested later on and was involved in the present case. In fact I am daily wager labour and I was busy in cutting of the trees at Nagman Charsadda at 9 clock in the morning along with my co-villager Rahim Gul when in the meanwhile the police mobile came and put us in their police mobile and took us to the PS. At evening they told us about the registration of this case against us. No recovery was effected from me nor from my co-villager nor even in our presence. Regarding my innocence I applied to DG ANF through application for enquiry but so far nothing has been done. Iam requesting the Hon'ble court to do justice with me, acquit me and initiate enquiry against the concerned officials."
12. The learned trial Court, after hearing the parties and appraising the evidence, convicted and sentenced the appellants as stated above.
13. The learned counsel for the appellants argued that the vehicle in question was not the ownership of any of the appellants; neither registration of the truck was recovered nor any driving licence of the appellant was recovered, as such, the recovery allegedly made from its secret cavities had shifted the burden to the prosecution to have established that the appellants were involved in the commission of offence and also were in the knowledge of the same because mere presence of the accused in the truck would not be sufficient for holding them guilty for the crime. Also argued, that the I.O. Had not weighed each and every slab separately thus creating doubt in the prosecution case. The learned counsel in support of their contentions placed reliance on some of the judgments of the superior Court wherein it was held that if the prosecution merely proves presence of accused in the vehicle, it would not involve them in the case unless it is proved that they knew about the concealment of narcotics in the secret cavities. Zahoor Ahmad Awan and another v. The State (1997 SCM R 543), Qaisarullah and others v. The State (2009 SCM R 579), Muhammad Noor and others v. The State (2010 SCM R 927), Gulshan Ara v. The State (2010 SCM R 1162), Haji Inayat and another v. The State (2010 PCr.LJ 825), unreported judgment of this Court in Criminal Appeal No.481 of 2009 (Dilshad v. The State), decided on 2-12-2010.
14. As against that, the learned State counsel argued that huge quantity of charas was recovered from the truck in question and the appellants, one being its driver and the other as his companion, were arrested on the spot. The question of knowledge was never raised before the trial Court and has been raised for the first time in appeals. The I.O. Had weighed all the packets on the spot and had prepared 60 samples in all, which were kept in safe custody and transmitted to the FSL, the report whereof is in positive, therefore, the prosecution has successfully established its case against the appellants and they were rightly found guilty of the charge by the trial Court.
15. We have heard the learned counsel for the appellants as well as the State and have gone through the record.
16. The evidence of the two prosecution witnesses, i.e. Hayat Shah, H.C. (P.W.5) and Sardar Abdul Waheed, AD (P.W.6) would reveal that on 22-3-2008, P.W.6 had received information from his high- ups that narcotics in huge quantity would be smuggled in Truck No.GLT-3868 from tribal territory towards Punjab through motorway. Accordingly a raiding party was constituted under the supervision of P.W.6, including P.W.5 and others, who laid a picket near Toll Plaza of Nissatta Interchange. When the truck in question arrived, it was stopped. One person was sitting on the driving seat, who disclosed his name as Nasrullah whereas the second disclosed his name as Rahim Gul. From the search of the truck, secret cavities were found in its cabin and on opening the same 60 packets charas `pukhta' were recovered. The trend of cross-examination conducted by the defence on these witnesses would indicate that only weighment of narcotics and preparation of samples was doubted. Moreover, suggestions were also put to them that the accused were not arrested on the spot. Both the witnesses have, however, answered the above questions satisfactorily. According to them, from each slab a small quantity was separated and sample of 10 grams from each packet was prepared. The weighment was made on the spot, as the scale was available, for which various bots of 1000, 100, 50 and 10 grams were used. The suggestion that neither the accused were present in the truck nor arrested therefrom was categorically denied. As against that, the plea of appellants taken in their defence, as reflected from their statements recorded under section 342, Cr.P.C, was that they were not arrested on the spot. In fact, they were busy in cutting trees when in the meanwhile the police mobile came, they were boarded in the same and took to the PS where at evening time they were told about the registration of instant case against them. It was also stated that an application for inquiry was moved by them to the D.G ANF. If the version of the prosecution and that of the accused is placed in juxtaposition, the version of the prosecution would seem to be very plausible and appealable to the common sense whereas the version of the accused, being based on denial simpliciter, does not appeal to logic and reason.
17. They neither produced any evidence in support of their plea nor did they themselves opt to record statements under section 340(2), Cr.P.C. Such a huge quantity of 76 kilograms of charas, in the circumstances, cannot be thrust upon the appellants without any serious enmity of the prosecution witnesses, which plea has not at all been taken by the appellants. There is thus no reason to believe that the appellants were falsely involved in the case by letting the actual culprit(s) free. Similarly, they even did not produce the application, which they had allegedly addressed to the Director-General, ANF for inquiry. The prosecution has, therefore, fully proved that appellant, Nasrullah, at the relevant time, was driving the truck in question with whom appellant, Rahim Gul was also present and charas weighing 76 kilograms were recovered from its secret cavities. The argument that the truck in question was not ownership of the appellants is misconceived as it is not the legal requirement of the prosecution to prove the link of accused with the truck in the capacity as owner or driver because each case has to be decided on the basis of facts, which had come on record. The presence of the appellants in the truck at the relevant time, their arrest on the spot and recovery of charas from the secret cavities of the truck thus stands established beyond any reasonable doubt and the trial. Court has rightly discarded the version of defence keeping in view their failure either to produce any evidence regarding their alleged plea or ulterior motive against the prosecution witnesses for their false involvement.
18. The contention of the learned counsel for the appellants about knowledge of the accused about the concealment of narcotics in the secret cavities of the truck, by placing reliance on the case of Zahoor Ahmad Awan and another v. The State (1997 SCM R 543), in the circumstances of the case, is also not worth acceptance, as that case was registered against the accused under the provisions of the Prohibition (Enforcement of Hadd) Order, 1979, whereas the instant case was registered against the appellants under the Control of Narcotic Substances Act, 1997, whereunder once the prosecution has, prima facie, established its case against the accused, then under section 29 of the C.N.S.A., burden shifts 'upon the accused to prove contrary to the plea of prosecution. Moreover, in that case the driver and his companion of the truck had never denied their presence in the truck, whereas in this case the appellants have denied their presence in the truck but with their total failure to prove the same through any cogent evidence. It is well-settled that when a distinct and specific plea is taken by the defence, then the same must be substantiated by leading evidence. Where the B prosecution has proved its version by leading overwhelming incriminating evidence, then denial simpliciter by defence could hardly be sustained. Further, in that case the recovery was made from a truck, loaded with Fodder (bhoosa), and the benefit of doubt was extended to the appellant only on the ground that it might be the act of the owners of the fodder loaded in the truck but in the instant case the truck was not loaded with any such material. The authority thus cited by the learned counsel is distinguishable from the facts and circumstances of instant case. In this case charas weighing 76 kilograms was recovered from the secret cavities of the truck, thus the driver and his companion on a long journey would be supposed to have knowledge of the goods on board.
19. The argument of the learned counsel that the I.O. Had not weighed each and every slab of narcotics separately or that a small quantity from each packet was separated is also without force as both the prosecution witnesses in their statements have volunteered that each packet was weighed. Similarly, non-collection of the samples from the whole lot of recovered narcotics would arise in those matters where a challenge has been made that the recovered item is not narcotics while in the case in hand no such a challenge has been made. Furthermore, the murasila, F.I.R., recovery memos and depositions of P.W.5 and P.W.6 would show that the samples were taken from all the packets with a small quantity from each slab for chemical analysis and the same were found charas by the FSL. Presence of such a direct evidence in absence of any mala fide or enmity is sufficient enough to believe the involvement of the accused in the commission of offence. The driver / cleaner of the vehicle invariably raises the plea of having no knowledge when narcotics or other contrabands are recovered from the vehicle in their possession but this plea had consistently been rejected by the Apex Court in various judgments, wherein it had been observed that driver cannot be absolved from the responsibility if a huge quantity of contraband items are recovered from the vehicle being driven by him. Concealment of huge quantity of narcotics in the secret cavities of a vehicle cannot be possible without the complicity of the two. Reliance can be placed on the case of Kashir Amir v. The State (PLD 2010 SC 1052). As there is no material discrepancy in the testimony of the prosecution witnesses, the well reasoned findings of the learned trial Court, holding the appellants guilty of the charge are, therefore, not open to any exception. The case-law referred to and relied upon by the learned counsel for the appellants is not applicable in the circumstances of the case and are distinguishable.
20. So far as the quantum of sentence is concerned, we find that the appellants appear to be just transporters/carriers of the contraband working for others. The ANF officials have not tried to nab the actual criminals who are playing with health and lives of the people of the country specially the youth. So, the imprisonment for life appears to be a bit harsh. So, by taking a lenient view, their sentence is reduced to imprisonment for ten (10) years' R.I. However, the amount of fine is maintained.
21. For the aforesaid reasons, these appeals are hereby dismissed with the above modification in the quantum of sentence.