' MRS. IRSHAD QAISER, J.---This judgment will dispose of Criminal Appeal No,631 of 2010 filed by Ali Muhammad appellant under section 410 Cr.P.C. Read with section 48 of C.N.S.A. 1997 who was convicted and sentenced to life imprisonment with a fine of Rs,200,000 or in default of payment of fine to undergo further 2 years' S.I. Benefit of section 382-B, Cr.P.C. Was extended vide order/judgment dated 9-6-2010 rendered by learned Judge, Special Court, (C.N.S.), Khyber Pukhtunkhwa, Peshawar.
2. The prosecution story in brief is that on 29-7-2009 Sardar Abdul Waheed, AD, P.S. ANF Peshawar constituted a raiding party including himself and other ANF officials and made Nakabandi at Gilani Manzil Bara Road near Police Check Post Bara Qadeem in their official vehicle on receipt of information that huge quality of narcotics would be smuggled from Tribal Territory Bara to Punjab through truck bearing Registration No, JU 0810/Sindh. At about 1900 hours the truck was sighted coming from Bara side. It was signalled to stop and the driver of the truck was overpowered. He disclosed his name as Ali Muhammad. On cursory search of the truck they detected narcotic in plastic sacks lying hidden beneath the wild grass (Kai) in the body of the truck. Due to security reasons and precautionary measures the truck along with accused was brought to P.S. ANF for thorough search. During the course of search Investigation Officer recovered 198 plastic sacks of charas beneath. The wild grass. On weighing, each packet of chars was of 1 kg. Thus the total recovered charas 198 plastic sacks containing 4947 bags stood 4917 kgs. Investigating Officer separated 10/10 grams from each packet of charas and prepared 4947 sealed parcel of sample for FSL by affixing 2/2 seals of monogram S.W. While the remaining charas was sealed in to the same sacks by affixing 3/3 seals of the monogram of SW. During the course of his personal search I.O.
Recovered different article. All the recovered articles including narcotics, truck were taken into possession through recovery memo Exh.P.W.1/4. The samples were sent to FSL and the report of which is in positive. During investigation accused disclosed the name of Haji Ikhtiar being instigator to carry out the business of narcotics. Proceeding under sections 204 and 87, Cr.P.C. Were initiated against him and after completion of formalities complete challan was submitted. Formal charge was framed which he did not plead guilty and claimed trial. Prosecution in support of charge, against appellant examined 3 P.Ws. After closing of prosecution case, the appellant was examined under section 342, Cr.P.C. Wherein he denied the allegation of prosecution and contended that he was not arrested on the same date, time and place. He stated that he was arrested on 27-7-2009 while on his way for the renewal of his passport at Hayatabad. That he has no concern with the truck. He also recorded his statement on oath under section 340(2), Cr.P.C. The learned trial Judge, on the conclusion of trial held appellant guilty of the charge and convicted him and sentenced vide order dated 9-6-2010. Feeling aggrieved of the impugned order and judgment appellant filed this appeal and assailed the impugned judgment on number of grounds.
3. Learned counsel for the appellant has contended that there is nothing on record to connect the appellant with the crime. The prosecution failed to prove the recovery of huge quantity of charas from the accused. He was not apprehended on the date, time and place mentioned by prosecution witnesses. That there is nothing on record that he has any nexus with the truck. That provision of section 103, Cr.P.C. Had not been complied with. That the witnesses who have deposed against him are officials of ANF and to show their efficiency to their high-ups they have falsely deposed against him. That the report of FSL does not pertain to the samples prepared in the present case. That the samples are not of that alleged recovery. That there are material contradiction in the statements of P.Ws. On the other hand, the learned counsel appearing on behalf of the State supported the impugned judgment, argued that appellant was apprehended red handed while he was driving the truck from where huge quantity of charas was recovered. He had full conscious knowledge about the huge quantity of narcotics concealed behind the wild grass. He pleaded that the recovery of huge quantity of narcotics from the conscious possession of the appellant is proved. Elaborating his view-point he stated that prosecution version is fully supported by direct evidence and positive report of FSL. That during investigation 'all the formalities have been conducted in accordance with law.
4. We have heard the learned counsel for the parties and have perused the record with their kind assistance. All the three prosecution witnesses have demonstrated complete unanimity on all aspects of case. The appellant could not point out any material contradiction in the statement of the prosecution witnesses, so as to create a dent in the prosecution case. No enmity, or grudge has been alleged against the prosecution witnesses to falsely implicate the appellant and despite lengthy cross-examination, their veracity could not be shattered and nothing favourable to the defence could be extracted from their statement. The most important aspect of the case is that huge quantity of chars weighing 4947 kilograms packed in 198 plastic sacks could not be thrust upon the appellant in absence of any tangible and concrete enmity.
' Moreover, it is not possible for the P.Ws. To arrange such a huge quantity of narcotics against the accused having no previous relation, enmity or ulterior motive which has not been proved by defence. The appellant could not point out by misreading or non-reading of evidence resulting into miscarriage of justice.
5. So far as the arguments regarding non-association of the public witnesses at the time of raid by the raiding party is concerned, suffice it to observe that application of provisions of section 103, Cr.P.C. Have been excluded under section 25 of the Act, as laid down by apex Court in case "Fida Jan v. The State 2001 SCM R 36". The prosecution witnesses being members of the raiding party were the natural witnesses and their testimony cannot be discarded merely on the ground that they C were employees of ANF. Reference in this respect may be made to PLD 1976 SC 67, 2003 SCM R 1237, 2004 SCM R 988 and 2004 SCM R 1361. Vide application Exh.P.W.l/4 dated 30-7-2007, I.O.
Sent 4947 samples each having 2 seals of monogram of SW. These were received by FSL on- 31-7- 2009. According to FSL report Exh.P.W.1/9 all 4947 packet contain charas which can be used to cause intoxication. Accused has not been able to rebut this report and was also not able to prove that the samples were not in respect of present recovered contraband.
6. Though in his statement recorded under sections 342 and 340(2), Cr.P.C, accused admitted his arrest by ANF officers but denied his arrest in the same date, time and place. In his statement recorded under section 342, Cr.P.C. He stated that he was arrested on 27-7-2009 while he was on his way for renewal of his passport at Hayatabad while in his statement recorded under section 340(2), Cr.P.C. He did not mention the date and simply stated:-- "I left my house at about 7/8 am and reached Hayatabad at about 930 am where I was going to passport office for renewal of my passport. In the meanwhile a white color Pick-up came and blocked my way and forcibly put me in the said Pick-up after giving me some slaps. After this they put me in the PS lock up. After spending 3/4 nights in the PS I was then remanded to the judicial lock up. I am innocent and falsely charged/roped in the instant case".
' The story narrated by appellant is nothing but a cock and bull story. It is well-settled when a specific plea is advanced by accused then burden shift on him to prove the same but he has not produced any evidence whatsoever. The appellant during trial failed to substantiate that he was not driving the truck No,JU 0810/Sindh from where huge quantity of charas was recovered, therefore, merely raising plea that he was not driving the truck and arrested on 29-7-2009 was not sufficient to exonerate him from the charge.
7. It is provided in section 29 of the Act that it may be presumed, unless and until contrary is proved, that the accused has committed the offence under this Act in respect of any narcotic drug, psychotropic substance or controlled substance and once prosecution establishes recovery beyond doubt then the burden shifted to defence to discharge innocence of the accused and the conviction/sentence recorded by trial. Court then would be unexceptionable when accused fails to discharge burden as per provision under section 29(ibid). The defence version that the recovered charas has been foisted upon the appellant, was not found plausible by the trial Court. The prosecution has been able to prove that at the time of apprehension the truck was under the control of accused and he was sitting on the driving seat. It is repeatedly observed by the august Supreme Court of Pakistan that knowledge and awareness would be attributed to the incharge of the vehicle and that the person on the driving seat shall be held responsible for the transportation of narcotics having knowledge of the same as no condition or qualification has been made in section 9(6) of C.N.S.A. That a possession should be exclusive one. Further more that when a person is driving the vehicle he is in the charge of the same and, it would be under his control and possession, hence, whatever articles lying in it would be under his control and possession.
Reference is made to 2010 SCM R 927 and 1988 SCM R 1899. Thus the prosecution has successfully brought home the guilt of the appellant to hilt by producing the witnesses of the recovery of narcotics material and the report of the Chemical Examiner.
8. In view of the above we find no illegality, infirmity in the impugned judgment of the trial Court which is unexceptionable. For the forgoing reasons, we do not find any substance in this appeal.
Consequently the same is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.