' MUHAMMAD HASHIM KHAN KAKAR, J.---This appeal is directed against the judgment dated 29th July, 2008 passed by the Special Judge, Control of Narcotic Substances Act, 1997, Quetta, whereby appellant Samiullah son of Habibullah was found guilty for committing an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (the C.N.S. Act) and sentenced to suffer R.I. For life and to pay a fine of Rs,100,000 (rupees one lac only), in default whereof to further undergo SI for one (01) year, with the benefit of section 382-B of the Cr.P.C.
2. Brief facts of the case, as given by Manzoor Ahmed Tareen, IP/SHO, in the F.I.R. (Exh.P/3-A), are that on 24th July, 2008, he, along with his fellows, was on special checking at Hazar Ganji, Quetta.
After receiving spy information regarding trafficking Of hashish in a 2.OD car from Quetta to Karachi, they started the checking of the vehicles vigilantly. At about 3-30 p.m., they stopped a 2.OD car, gray colour, bearing Registration No,ABE-5691 Sindh, being driven by accused Samiullah.
On checking of the vehicle, recovery of 40 packets hashish, weighing 40 kilograms, was effected from the backside of rear seat, consequently, the appellant was arrested and a case vide F.I.R.
No,82 of 2008, under section 9(c) of the C.N.S. Act was registered against him at Police Station, New Sariab, Quetta.
3. A formal charge for possession of narcotics against the appellant was framed, which he did not plead guilty. The prosecution, in order to prove its case, produced three witnesses in all, viz, Manzoor Ahmed, IP/SHO (P.W.1), Amjad Pervaiz ASI (P.W.2) and Muhammad Ashraf IP/Investigating Officer. After recording of prosecution evidence, the accused was examined under section 342 of the Cr.P.C. He also recorded his statement on oath under section 340(2) of the Cr.P.C, wherein he repudiated the prosecution allegation and claimed to have been falsely charged. Accused also produced Mehrullah in his defence as D.W.1.
4. Upon consideration of the evidence, adduced by the parties in support of their respective contentions, the trial Court held that the prosecution has succeeded to prove its case against the accused beyond reasonable doubt and having held so; he convicted and sentenced the appellant, as noted above.
5. Mr. Muhammad Aslam Chishti, learned counsel for the appellant, while commenting on the evidence of prosecution side, inter alia, contended that the prosecution has failed to prove its case beyond reasonable doubt and the trial Judge failed to apply his mind to the evidence on the record and passed the impugned judgment against all norms of justice, which is unwarranted; that the prosecution evidence is full of doubts and contradictions; that the evidence produced by the appellant is more reliable and trustworthy qua the prosecution evidence and that no recovery has been effected from the conscious possession of the appellant; that the recovery is doubtful, being made in violation of the mandatory provisions of section 103 of the Cr.P.C.
6. On the contrary, Haji Liaquat Ali, Advocate, representing the State, submitted that the appellant was arrested from the vehicle on the relevant date and time and was found at the driving seat, wherefrom the recovery of the incriminating article was effected from the backside of rear seat. He further submitted that, prima facie, recovery of the narcotics was established on the record and under section 29 of the C.N.S. Act, there is presumption of conscious possession of incriminating articles and the appellant had failed to rebut the same, rather he had not denied his presence in the said vehicle. He submitted that the prosecution has fully established its case against the appellant and he was rightly convicted and sentenced by the trial Court. He requested for, dismissal of the instant appeal.
7. In a criminal case, the burden of proving each and every ingredient of the offence, with which an accused person is charged, lies entirely on the shoulders of the prosecution. It is the primary duty of the prosecution to prove its case beyond reasonable doubt and its burden is not shifted under the presumption contained in section 29 of the C.N.S. Act. It only says that once the prosecution establishes recovery beyond doubt, it is then that the burden is shifted. Section 29 of the C.N.S. Act, A does not absolve the prosecution of its primary duty to prove its case beyond doubt. However, it may be added that in case a plea is taken, the Court has to see its probability and legal value, dependant upon the circumstances of each case.
8. While applying the aforesaid yardstick and having gone through the prosecution evidence as well as impugned judgment, we have arrived at a confident conclusion that the prosecution has proved its case against the appellant beyond reasonable doubt. The impugned judgment, which is based on valid reasons, does not suffer from any illegality or material irregularity and the same is neither perverse, nor arbitrary. The appellant was arrested from the spot, while travelling in a vehicle bearing Registration No,ABE-5691 Sindh. The provision of section 103 of the Cr.P.C. Has no application to the narcotic cases as per provisions contained in section 25 of the C.N.S. Act, thus, mere non-association of a private witness would not vitiate the recovery or the prosecution case.
So far as the evidence of police officials is concerned, it may be noted that the police witnesses are as good witnesses as any other citizen, unless any mala fide is established against them. The deposition of a police official cannot be brushed aside simply on the bald allegation that he belongs to the police department. They have furnished a straightforward and confidence-inspiring account and their evidence does not suffer from any contradiction, discrepancy or inherent infirmity. There is nothing on record to show that they are deposing against the appellant maliciously or out of animus. The connection of the appellant with the car has also been established on the record, as he was found alone on the driving seat. No doubt, the said car is not registered in the name of the appellant, but, as stated above, he was sitting on the driving seat of the car. The appellant has admitted his presence in the car and the samples separated for the chemical analysis was found to be hashish by the Forensic Science Laboratory. All the above discussion leads us to a definite conclusion that the prosecution has established the recovery of narcotic substance from the car, which was in the possession and control of the appellant.
9. Learned counsel for the appellant contended that even if the recovery of narcotics is admitted to have been effected, yet it cannot be presumed to be effected from actual and conscious possession of the appellant. We are not impressed by the said contention of learned counsel, as, admittedly, the appellant was travelling in the vehicle in question and that contraband material was recovered from it. By holding this view, we are fortified from the observation of Hon'ble Federal Shariat Appellate Bench in the case of "The State v. Shawal Khan" reported, in 1998 SCM R 1107, relevant portion whereof is as under:-- "There was no requirement according to the law declared by the superior Courts in such cases to strictly prove that the accused persons were in possession of a particular article physically. The presence of the accused persons in the Pick-up where huge quantity of narcotics and large number of arms, ammunition had been placed which were being carried coupled with the act of the co-accused of opening fire and to run away, furnished 'sufficient evidence to establish that they would be deemed to be involved in carrying or transporting the narcotics or possessing arms and it was not necessary in such circumstances to prove recovery from their persons or that they should physically possess such articles and arms, ammunition. They would be presumed to be conscious about the presence of these articles in the Pick-up and it was for them to explain that the said Pick-up at the relevant time was plying as ordinary passenger vehicle or it was not booked specially for this purpose. In their statements, they only pleaded innocence and stated that they were involved on account of enmity with some police officer about which they did not lead any evidence. The approach of the Federal Shariat Court for requiring in such cases strict proof of recovery of such' articles from the person of the accused-respondents was not in accordance with the principles laid down by the superior Courts as regards the appraisal of evidence in such cases. Initial presumption would be that all those persons who were present in the pick-up shall be deemed to be possessing and carrying these articles unless they otherwise produce evidence to prove that they were not in the knowledge of the presence of the objectionable articles.
10. Adverting to the defence plea, we are of the opinion that the occurrence had partly been admitted by the appellant. He raised the plea of false implication. It is the case of the appellant that the vehicle in question was handed over to him by his brother, which was parked at the garage of D.W.1 Mehrullah for repair of cushion. He was on his way to Quetta, when apprehended by the police. The police demanded bribe and since SHO Manzoor Tareen had previous grudge with his brother, an employee of police, as such, the narcotic was foisted against him and he was falsely involved in the case.
11. A bare perusal of the version, introduced by the appellant, shows that this plea in the facts and circumstances of the case is merely an attempt to hide his own guilt and it does not appeal to prudence for the following reasons:-- ' Firstly, he did not examine his brother in support of his claim, who, allegedly, handed over vehicle to him; ' Secondly, he has failed to examine his brother, who is police employee, having alleged enmity with IP/SHO Manzoor Tareen; ' Thirdly, the plea has not been suggested to the prosecution witnesses during cross-examination; ' Fourthly, it is repellant to common sense that the customer had parked his vehicle at the garage of D.W.1 for repair of cushion, knowingly loaded with narcotics; and ' Fifthly, it cannot be believed that officials would plant narcotic in such quantity on the accused from their own sources.
Thus, the defence plea seems nothing, but a cock and bull story. The version put forth by the prosecution seems to be more plausible and nearer to truth, so, we have no hesitation in excluding the story, introduced by the appellant for the first time before the trial Court, out of consideration.
' Having given our anxious thought to the arguments of learned counsel for the parties, we feel that preponderance of the evidence on record as rightly appreciated by the trial Court, is sufficient for holding the appellant guilty of the charge. There is hardly any substantial ground for lawfully challenging impugned judgment. The appeal is dismissed and impugned judgment is maintained.