' NISAR MUHAMMAD SHAIKH, J.---Through this appeal, the appellant has impugned the Judgment dated 28-9-2009 passed by learned Judge, Special Court I (CNS) Karachi in Special Case No,92 of 2005 whereby the appellant was convicted for the offence punishable under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for life and pay a fine of Rs, 1,00,000 and in case of default in payment of fine, to suffer S.I. For 6 months more.
However, the benefit of section 382-B, Cr.P.C. Was extended to him.
2. The case of prosecution, in brief, is that on 19-8-2005 Inspector Jehangir Khan of Police Station ANF, Gulshan-eIqbal, Karachi, alongwith other officials of ANF, was busy in patrolling when he received a spy information that the narcotic smugglers namely Shah Wali, Mudasir Shah (appellant) and Ashiq Hussain have brought huge quantity of charas by concealing in the secret boxes of Bus No,C-1211 from Peshawar to Karachi and they are about to travel from Sohrab Goth to Surjani Town for its delivery. The complainant party through their official mobile, proceeded towards Sohrab Goth where they saw the aforesaid Bus which was got stopped by them. The driver and three other persons present in such bus were overpowered by them. The passersby when asked for, did not agree to act as witness therefore, HC Jaffar Nadeem and PC Pervez Shah, being members of the raiding party, were made witnesses. On enquiry, the driver of the bus disclosed his name as Atif Shahab, while.The remaining 3 persons sitting in the bus disclosed their names as Mudasir Shah, Shah Wali Khan and Ashiq Hussain. The Inspector then proceeded to search the bus and the driver also permitted for the same but the remaining 3 persons resisted to it. Thereafter, during the search, 100 packets of charas were found in the secret box of the bus. Each packet was weighed and found to be of one kilogram. Total 100 kilograms of charas was sealed for chemical examination. The recovered charas and the bus with its keys as well as the articles secured on personal search of the accused, were seized and all the 04 accused were arrested under a memo prepared at the spot in presence of the said witnesses. Such case/F.I.R. No,9 of 2005 for the alleged incident took place on 19-8-2005 at 4-00 p.m, was then registered on the same day at 7-00 p.m. By the Inspector Jehangir Khan at Police Station ANF, Gulshan-e-Iqbal, for the offences under sections 6, 9, 12 and 14 of CNS Act, 1997..
3. On completion of investigation of the case, all the four arrested accused were challaned on 1-9- 2005. Thereafter the alleged owner of the bus namely Askar Khan alias Jehangir, who was shown absconder in the challan, was also arrested and sent up with supplementary challan to face trial in the above case. In the meantime, one of the accused namely Shah Wali Khan, after grant of his bail, absconded away.
4. The accused pleaded not guilty to the charge framed by the trial Court. The prosecution then examined 3 witnesses i.e, Inspector Jehangir Khan, the complainant/ I.0 who produced the F.I.R. And Chemical Examiner's Report, PC Pervez Hussain Shah, mashir/recovery witness who produced memo of arrest and recovery and Mir Badshah, Assistant Director ANF who produced memo of arrest of accused Askar Khan alias Jehangir. The accused in their statement under section 342 Cr.P.C. Denied all the allegations claiming to have been falsely implicated in this case. However, they did not examine themselves on Oath though asked for the same during their such statement.
After hearing, the learned trial Court finding the appellant Mudasir Shah as well as co-accused Ashiq Hussain and Atif Shahab, guilty of the charge, convicted and sentenced them to life imprisonment and fine of Rs,1,00,000 each. However the charge against the alleged owner of the bus namely Askar Khan alias Jehangir was not proved therefore he was acquitted, while the case of absconding accused Shah Wali Khan was kept on dormant file till his arrest.
5. We have heard learned counsel for appellant and learned Special Prosecutor for ANF and also perused relevant record.
6. It is a matter of record that Criminal Appeals No,229 of 2009 and 230 of 2009 filed by the accused/appellants Atif Shahab and Ashiq Hussain respectively, challenging conviction and sentence awarded to them under the same impugned judgment, were already heard and decided on merits, by a Division Bench of this Court vide a common Judgment dated 14-7-2010 whereby the appeal of Atif Shahab was allowed and he was acquitted of the charge, while the appeal of Ashiq Hussain was dismissed and the conviction and sentence awarded to him was maintained. He then assailed such decision of this Court through a Jail. Petition No,414 of 2010 but the same was also dismissed by honourable Supreme Court vide order dated 9-12-2010.
7. In order to examine the relevant question, as to whether the case of present appellant Mudasir Shah is identical to that of the case of acquitted accused Atif Shahab or convicted accused Ashiq Hussain, it would be advantageous to reproduce the relevant parts of the aforesaid judgments. In this regard, paras 1.7 and 18 of the impugned judgment dated 28-9-2009 passed by the trial Court, read as under:-- "17. Both P.Ws. Have fully implicated all the accused to connect with the commission of offence, they were subjected to the cross-examination by the learned Defence Counsel respectively, but their evidences were found unshaken and consistent regarding the date, time, place of recovery, quantity of recovered contraband, sealing of property, arrest of the accused with overt act, the mode and manner in which the property had been effected, no serious and important contradictions, discrepancies, improvement and exhortation have been noticed in the testimony of the P.Ws., nor any substantive material has come on record to demonstrate the P. Ws. Have had any reason or dispute with the accused to implicate them falsely and thrust upon huge quantity of the Charas weighing one hundred kilograms.
18. The defence has not disputed the nature of the recovered substance nor any material has come on record to show that the report of Chemical Examiner was the result of the tampering or manipulation. The ocular unimpeachable testimony of the P.Ws. Coupled with the chemical report proved the factum of the recovery of the Charas weighing one hundred kilograms beyond any reasonable doubt."
8. The relevant para-11 of the common judgment dated 14-7-2010 passed by a Division Bench of this Court in connection with appeal of Atif Shahab, is reproduced below:- "In the case in hand, it is an admitted fact that the spy informer did not give the name of the appellant Atif Shahab as one of the smugglers nor the prosecution has placed on record any confidence inspiring evidence to connect the appellant Atif with the contraband items seized from the said bus. It is also to be noted that the owner of the bus awas not involved in the case. If the appellant Atif was driver of the said bus then he was in the employment of the owner of the bus and this fact should have been proved by involving the owner of the bus either as an accused or as a witness. However, and very surprisingly, the owner was not at all connected with the case and was completely ignored. There is also the statement of complainant Inspector Jehangir Khan that appellant Atif did not object to the search of the vehicle while the other inmates of the bus objected to the same. Thus, there is no incriminating material against the present appellant which may be made basis for his conviction and sentence as neither the factum that the said appellant was driver of the bus was proved beyond any reasonable doubt nor it was proved that he was connected with the recovered charas in any manner as even if it is presumed that he was driver of 'the bus there is the statement of the complainant/ S.H.O. That he did not object to the search of the vehicle and the fact that his name was not disclosed by the spy informer as one of the smugglers. We have also noted that during interrogation co-accused. Shah Wali has disclosed that appellant Atif Shahab was hired as driver of the bus for one trip only. It is not clear from the record as to who drove the bus from Peshawar to Karachi as it has also come on record that the actual driver of the bus namely Askar Khan alias Jehangir Khan, who has already been acquitted of the charge vide the impugned Judgment, was the actual driver of the bus, who has driven the bus from Peshawar to Karachi and on reaching the last stop i.e, Sohrab Goth, left the bus and it is alleged that appellant Atif took his place. The Prosecution has not made any effort to show whether it was Askar Khan or appellant Atif Shahab who had driven the bus from Peshawar to Karachi. It may again be pointed out here that the spy informer has specifically stated that "Narcotic dealer Shah Wali, Mudasir Shah and Ashiq Hussain have brought huge quantity of Charas" and has not even said that some other persons are also with them."
9. However, for the appeal of Ashiq Hussain, the relevant para-13 and 14 of the said common judgment of this Court, read as under:-- "13 The Prosecution has proved its case against appellant Ashiq Hussain beyond any reasonable doubt and the learned counsel for the appellant Ashiq Husain has not been able to shake the evidence produced by the Prosecution with regard to date, time and recovery of contraband items and presence of appellant Ashiq Hussain in the bus at the time of recovery of the Charas. Learned counsel for the appellant Ashiq Hussain has not been able to point out any material contradiction/discrepancy in the evidence recorded against the said appellant. No substantial material has come on record to show that the P.Ws. In this case have any enmity or against appellant Ashiq Hussain and that for such reason he has been falsely implicated in this case. The report of the Chemical Examiner also fully supports the case of the Prosecution. Thus, the Prosecution has proved its case against appellant Ashiq Hussain beyond any reasonable doubt.
14. For the above reasons, we accept Criminal Appeal No,229 of 2009 filed by appellant Atif Shahab, set aside the conviction and sentence passed against him by giving him benefit of doubt and acquit him of the charges levelled against him. He shall be released forthwith if not required in any other case, however, we dismiss Criminal Appeal No,230 of 2009 and maintain the conviction and sentence passed against appellant Ashiq Hussain."
10. Whereas the relevant part of the order of a Division Bench of Honourable Supreme Court, passed on 9-12-2010 in Jail Petition of accused/petitioner Ashiq Hussain, is in the following manner:-- "Opinion of First Judge.
(1)
(2) The arrest of the accused from the bus stands established. At the time of arrest of the four accused, there was no other passenger in the bus and it is prosecution case that the narcotic was to be delivered to a customer in Sarjani Town, Karachi, where it was proceeding after completing its scheduled journey. Neither of the accused had claimed that they were passengers in the bus.
Rather they had completely denied their arrest from the bus. There was prior information about the involvement of the petitioner and two other accused, Shah Wali and Mudassir Shah, that they were narcotic dealers, who had brought narcotic from Peshawar to be delivered at Karachi.
(3) In my view, the case against the petitioner stands established.
Opinion of Second Judge.
' I am in respectful agreement with the opinion of my learned brother as above recorded.
ORDER OF THE COURT ' Leave declined.
' Petition dismissed."
11. It is evident from the above and other material on record, that the case of the acquitted accused Atif Shahab was not at par but was quite distinguishable to that of the convicted accused Ashiq Hussain, while the case of present appellant Mudasir Shah and the said Ashiq Hussain is exactly same as both of them as well as absconding accused Shah Wali Khan were already reported by the spy to have had brought a huge quantity of charas in a bus from Peshawar to Karachi being smugglers of the same and they, having knowledge of the availability of charas concealed in the bus, also resisted on the search however, such charas was recovered from the secret box/cavity of the bus and thus, these accused were arrested at the spot. Such evidence adduced by the prosecution before the trial. Court was found to have established the guilt of accused Ashiq Hussain and Mudasir Shah, who both in their similar statements under section 342, Cr.P.C. Claimed in the same manner that this case has been 'registered against them on account of enmity. But, no sort of such enmity or any reason of false implication was shown by them anywhere in the proceedings of the case and as such, the trial Court held both these accused as guilty of the charge having been proved against them beyond any reasonable doubt.
12. The learned counsel for the appellant, relying upon the ease of Muhammad Noor and others v.
The State (2010 SCM R 927) and Muhammad Ashraf Shaheen v. The State (2006 M LD 183), contended that although no offence was committed or proved to have been committed by the appellant, yet the alleged recovery of charas was not effected from the exclusive or physical possession of appellant who was also not proved to be in conscious knowledge of the availability of narcotic substance in the bus therefore, he could not be held guilty. In this connection, learned Special Prosecutor referred the section 29 of CNS Act, 1997 and contended that once the knowledge and possession of appellant, corroborated by the recovery, was proved by prosecution, the burden to disprove the charge then shifts upon appellant but he failed to discharge the same as required in terms of section 29 of CNS Act, 1997. It appears that this contention also gets support from the case of Muhammad Noor (supra) itself, which having been relied upon by learned counsel for the appellant himself, was decided by a full Bench of honourable Supreme Court with the following observation on the point in question, appearing in the relevant para-7 of the Judgment:- "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 it 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. Reliance is . Placed on the case of Inder Sain v. State of Punjab AIR 1973 SC 2309."
13. Since the appeal of co-accused Ashiq Hussain is already dismissed by this Court after considering the material aspects of the case and such decision has also been upheld by honourable Supreme Court and since the case of present appellant Mudasir Shah is identical to that of the case of Ashiq Hussain and learned counsel' or appellant has not been able to point out any material to indicate that the case of appellant is distinguishable in any way to the case of Ashiq Hussain, therefore, the final decision of honourable Supreme Court is binding upon this Court so far as the case of present appellant is concerned.
14. Consequently, the present appeal deserves no merit and therefore the same is hereby dismissed.