' AZMATULLAH MALIK, J.---Convict Waheedullah through this appeal has assailed the judgment and order dated 17-11-2009 passed by Judge, Special Court, C.N.S., N.-W.F.P., Peshawar whereby he was convicted under section 9-C, C.N.S.A. And sentenced to life imprisonment along with a fine of Rs, 100,000 or in default to further suffer one year's S.I.
2. The high-ups of ANF Peshawar on receipt of secret information regarding smuggling of huge quantity of narcotics from Khyber Agency to Punjab through Truck No,P-440 Peshawar via G.T.
Road, constituted raiding party consisting of Sardar Abdul Waheed, AD, P.S. ANF Peshawar and other ANF contingents who on reaching Kund Moor Khyerabad laid a picket. At about 1200 hours the said truck was seen coming from Peshawar side which was signaled to stop. On inquiry the driver of the said truck disclosed his name Waheedullah son of Muhammad Rehman resident of Daag Besood, Nowshera. On cursory examination of the truck the ANF found narcotics in the secret cavities carved between the driver cabin and the truck body as the same was found double. So the truck along with accused was taken to the Police Station ANF, Peshawar where from the secret cavities 59 packets of Charas pukhta, 102 packets of Charas garda and 400 grams opium was recovered. On weighing Charas pukhta stood 59 Kgs while Charas garda 122.200 Kgs. Sardar Abdul Waheed, AD ANF separated 10/10 grams Charas pukhta and prepared parcels for laboratory analysis and the remaining contrabands were also sealed into another parcel. Similarly he also separated 10-grams opium and sealed into parcel and affix 2/2 seal of the monogram SW while the rest of the lot was also sealed by applying 4/4 seals of the same monogram. From the body search of Waheedullah Rs, 1,000 in cash, a driving license and mobile set Nokia was recovered. The recovered narcotics and the article above mentioned were taken into possession by Sardar Abdul Waheed AD, ANF in presence of marginal witnesses and the appellant, where after the case was registered. The samples taken for the chemical analysis were sent to the FSL which were tested positive.
3. After investigation of the case the case was sent for trial to the court of Special Judge, C.N.S., Peshawar who after recording the evidence, of prosecution, statement of accused and after hearing the arguments of both the sides, convicted the appellant vide para-1 of the instant judgment.
4. Learned counsel for the appellant submitted that appellant being innocent has falsely been implicated in the case and the prosecution has badly failed to connect the appellant with the commission of offence for which he is charged with. The prosecution also failed to prove the conscious knowledge and possession of the appellant regarding the, narcotics allegedly recovered from the secret cavities of the truck. She also contended that the appellant is neither owner of the truck nor beneficiary but in fact a passerby who was arrayed in the case as accused because unattended truck was taken into custody by the ANF authorities and the appellant was made a escapegoat. She lastly contended that onus of prove initially lies on prosecution and it never shifts to accused. There are contradiction in the statements of P. Ws. And the benefit of doubt arising out from the said contradictions should have been resolved in favour of appellant. In support of her argument she placed reliance on "PCr.LJ 2010 page 567, YLR 2011 page 411, PCr.LJ 2007 page 843, SCMR 2010 page 1016 and SCMR 2010,page 927 and requested for acquittal of the appellant.
5. As against that learned SPP appearing on behalf of ANF submitted that appellant was arrested from the truck to which he was driving at the relevant time. The recovery of narcotics was affected from the secret cavities carved in the cabin of the truck. He further submitted that recovery of narcotics was established on the record and under section 29 of the C.N.S.A. There is presumption of possession of narcotics and the appellant has failed to rebut the same. He lastly contended that prosecution has fully established his case against the appellant who was rightly convicted and sentenced by the Special Judge, C.N.S., Peshawar. He lastly argued that the appellant was alone person driving the truck at the relevant time and it cannot be presumed that he had no knowledge about presence of narcotics in the truck driven by him.
6. We have heard the learned counsel for the parties and have perused the record of the case.
7. The prosecution in order to prove its case has examined 4 P.Ws. Which includes the statement of Investigating Officer as P.W.3, Asmatullah recovery witness as P.W.4. P.W.2 Mati-ur-Rehman was the person who took parcels to the FSL, Rawalpindi. P.W.1 Ashfaq Hussain Muharrir of Police Station ANF, Peshawar to whom custody of recovered narcotics was given by the Investigating Officer.
Whereafter the statement of appellant under section 342, Cr.P.C. Was recorded. The appellant did not produce any person in his defense nor offered to record his statement on oath under section 340(2), Cr.P.t.
8. The foremost question for consideration before us is whether the appellant Waheedullah was in the knowledge of narcotics recovered from the truck which was being driven by him. From the evidence it has been established beyond any shadow of doubt that the appellant Waheedullah was driving the truck as such he was Incharge of the vehicle therefore, it was under his control and possession. Hence whatever articles lying in it would be under the control and possession of the appellant. Thus a huge quantity of narcotics was recovered from the secret cavities carved in the cabin of the truck for which no other person could be held responsible except the person who is Incharge of the vehicle which he is driving.
9. We could not find any inconsistency in the evidence of P.Ws. Recorded during the trial and despite lengthy cross-examination no contradiction could be pointed out by the counsel for the appellant. As per section 29, C.N.S.A. Which is reproduced as under:- Presumption from possession of Illicit articles.---In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of --
(1) any narcotic drug, psychotropic substance or controlled substance;
(2) any cannabis, coca or opium poppy plant growing on any land which he has cultivated;
(3) any apparatus specially designed or any group of utensils specially adapted for the production of manufacture of any narcotic drug, psychotropic substance or controlled substance; Or
(4) any material which have undergone any process towards the production or manufacture of narcotic drug, psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance or controlled substances has been produced or manufactured, for the possession of which he fails to account satisfactorily.
10. The above section expressly cast a duty upon the court to presume in a trial under this Act that the accused has committed the offence under the Act unless contrary is proved. If the case is 'of possession of narcotic drugs then first prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused then the court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such drugs. Therefore, it is necessary for the prosecution to establish that the accused has some direct relationship with the narcotic drugs or has otherwise dealt with it. If the prosecution proves the retention of the article or physical custody of it then the burden of proving that the accused was not knowingly in possession of the article is upon him. The practical difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made the legislature think that if the onus is placed on the prosecution the object of the Act would be frustrated. It does not mean that the word "Possess" appearing in the section 6 of the Act does not connote conscious possession.
Knowledge is an essential ingredient of the offence as the word "possess" connotes in the context of section 6, possession with knowledge The legislature could not have intended to make mere physical custody without knowledge of offence; therefore, the possession must be conscious possession. Nevertheless it is different thing to say that the prosecution should prove that the accused was knowingly in possession. It seems to us that by virtue of section 29, the prosecution has only to show by evidence that the accused has dealt with the narcotic substance or has physical custody of the same or directly concerned with it, unless the accused proves by preponderance of probability that he did not knowingly or consciously possess the article. Without such proof the accused will be held guilty by virtue of section 29, Act, 1997.
11. In the case of "Ismaeel v. The State" (2010 SCMR Page 27) it has been observed that knowledge and awareness qua presence of articles in the vehicle would be attributed to Incharge of the vehicle, the relevant portion reads as under:-- It is an admitted fact that aforesaid charas and opium was recovered from the four doors of the car which was being driven by the petitioner coupled with the fact that only the petitioner was present in the car. Therefore, Courts below were justified to give finding against the petitioner qua his guilt. Findings of the Courts below are in consonance with the law laid down by this Court in various pronouncements. See--
(i) Muhammad Shah's case PLD 1984 SC 278, (ii) Said Shah's case PLD 1987 SC 288, (iii) Nadir Khan's case 1988 SCMR 1899, (iv) Rab Nawaz's case PLD 1994 SC 858, (v) Ikram Hussain's case 2005 SCMR 1487.
In view of the law laid down by this Court in the aforesaid judgments we are of the opinion that the driver cannot be absolved from the responsibility if the contraband items are being transported in the doors of the vehicles being driven by him. 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 of 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.
12. We therefore while seeking guidance from the dicta laid down by the apex Court are of the considered view that from the facts that the narcotics was secured from the possession of appellant being driver of the truck therefore he is involved in the case and the prosecution has proved the case against him. Consequently, the appeal in hand being without force is hereby dismissed.