The appellant Muhammad Mustafa was tried, found guilty, convicted u/S. 9 (C) CNSA, 1997 and sentenced to imprisonment for life with a fine of Rs, 100,000/- or in default to suffer further six months S.I. by the learned ASJ-IX/Judge Special Court Peshawar vide her judgment dated 21.11.2012.
He was however, extended the benefit of S. 382-B, Cr.P.C. The seized Motorcar Honda CT Bearing No, R-7119 Peshawar silver colour, used in the commission of offence, has been has been returned to Tariq Hasham P.W.6 as its owner. Whereas the co-accused Muhammad Irfan, was acquitted of the charges leveled against him. Now the convict-appellant has challenged his conviction and. sentence through the appeal in hand.
2. Brief facts of the case as per Murasila Ex.P.W.1/2 are that the complainant Bashir Dad Khan SHO PS Chamkanni during mobile gasht received information that from Bara Tribal Territory via G.T.Road through Motor Car Honda CT Bearing No, R-7119 Peshawar Silver Colour, charas would be smuggled. Accordingly he laid a picket at G.T.Road near .Tarnab Farm, accompanied with Hassan ASI, Incharge Chowki Tarnab. Meanwhile the said Motor Car was stopped for checking. The convict- appellant was driving the said Car and the acquitted accused was sitting on the front seat of the Car. On search of the vehicle from its dig 5 packets Pukhta charas and 19 packets Garda charas, total weighing 30 K.Gs and one .30 bore pistol were recovered. 5/5 grams from 5 packet pukhta charas were separated and sealed into Parcel No, 1 to 5. Similarly 5/5 grams charas garda were separated and sealed into Parcels No, 6 to 24. From the personal search of the convict-appellant Muhammad Mustafa the I.O. recovered one bandolier, one pistol .9mm No, 15427, 2 spare chargers alongwith 25 rounds of 9mm were recovered. The vehicle was seized vide recovery memo Ex.P.W.1/1.
Murasila was drafted vide Ex.P.W. 1/2 and the case was registered Vide FIR No, 9 dated 2.1.2012 u/S. 9(C) CNSA and 13 AO against both the accused at PS Chamkanni, Peshawar and they were arrested red handed on the spot.
3. After completion of investigation in the case challan was submitted before the trial Court.
4. The prosecution in order to prove its case against the accused produced in all six witnesses before the trial Court.
5. After recording evidence of the prosecution witnesses, the convict-appellant was examined u/S. 342, Cr.P.C. wherein he denied all the allegations made against him by the prosecution. He neither opted to give statement on Oath u/S. 340(2), Cr.P.C. nor wanted to produce any evidence in his defence. After conclusion of the trial accused-appellant was convicted and sentenced as stated above.
6. Ms. Farhana Marwat, the learned counsel for the appellant contended that the appellant has been enroped falsely in the case by the police due to collusion with P.W.6. Tariq Hasham. Her arguments revolved round the recovery of the contraband charas. She hit the FSL report, wherein the nature of two different kinds of samples were not mentioned. She also contended that the contraband when produced before the trial Court at the time of recording evidence was unsealed.
The non-recovery of any rent, a car receipt and other documents regarding the Motor Car were also fatal for the prosecution case; that the contraband was Received by the FSL after 5 days of the occurrencs. She argued that the prosecution has not proved the very recovery of contraband and sending the same to the FSL.
7. On the other hand the learned State counsel vehemently opposed the arguments of the learned counsel for the appellant saying that the arguments advanced by the learned counsel for the appellant being baseless has no substance; that the appellant has been arrested red handed on the spot after having been found in possession of a huge quantity of charas weighing 30 KGs. from the secret cavities of the seized Motorcar being driven by the accused-appellant. He also argued that no enmity or ill-will or any mala fide on the part of the police has been brought on record and that the prosecution witnesses were not shattered during the lengthy cross-examination; that the FSL report also supports the version of the prosecution.
8. Arguments heard and record perused. Our conclusion is as under:--
9. The prosecution has produced six witnesses before the trial Court. There is nothing on record or any suggestion that, the police had enroped the appellant due to enmity in the present case. There is no denial that 30 K.Gs. contraband charas has been recovered from the Motor Car, which was being driven by the appellant. Though the prosecution has produced the police official as prosecution witnesses, but P.W.6 Tariq Hasham, is the important witness, who was owner of the vehicle in question, wherefrom the contraband' was recovered. He categorically stated in his statement that Motor Car was handed over to the appellant, because he was running the business of 'rent a car' and in-this regard has produced his own record regarding the renting out the Motor to the appellant on different occasions i,e, 31.5.2011; 8.9.2011, 24.11.2011, 11.12.2011, 17.12.2011 and the day of occurrence i,e, 2.1.2012. The stance of appellant regarding his implication P.W.6 by giving the statement that he had rented out the Car to the appellant has been explained in his statement.
10. The main ground of his defence as per statement of the appellant was that he has been involved in the present case by Tariq Hasham P.W.6, as he has obtained loan of Rs, 300,000/- on which the relationship between him and Tariq Hasham P.W. 6 became strained and due to the said strained relationship, the case has been cooked up by Tariq Hasham against the appellant, in collusion with the police. The plea of the appellant does not appeal to reason because when the appellant was unable to return the loan of Rs, 3 000/- to Tariq Hasham, on the sole ground how Tariq Hasham could manipulate the present case by arranging huge quantity of 30 K.Gs. Charas which is so many times high in price than the alleged outstanding loan of Rs, 300,000/-. From the bare statement of P.W.6 it transpired that not only on the day of occurrence, rather prior to the date of occurrence the appellant had hired the Car several times from the said P.W, This specific question regarding the outstanding amount of Rs,300,000/- which allegedly caused the cooking up of the present case against the appellant, had never been asked from P.W.6. Neither in this respect any suggestion has been made by the appellant to any witness, who appeared in the witness box, during the course of recording of their evidence. It is established law that the story if developed by the accused is more plausible and appealable as compared to the prosecution narration, then the Court has to accept the story advanced by the accused, but in the present case the appellant miserably failed to smash the prosecution story on the ground of his plea, which he had taken in his statement recorded u/S. 342, Cr.P.C. To this extent the link of appellant with P.W.6 has been established. The statement of P.W. 6 is confidence inspiring, straightforward and seems to be truthful, as no one else has come forward to claim the ownership of the Motor Car, wherefrom the contraband was recovered and seized by the police. Therefore, P.W.6 being disinterested witness and no ground has been advanced to discard the testimony of the said witness.
10. So far the question of objection regarding the sample from the contraband is concerned, those 19 + 5 samples of two different kinds of charas were sent to the FSL. The report of which is positive and it is clearly mentioned that the same is charas. The counsel for the appellant insisted that the 19 samples sent to the FSL were from Garda charas and after chemical treatment and due process only 50% pukhta charas could be obtained.
11. In the light of said argument even then the quantity of pukhta charas cannot be reduced from 18 K.Gs. in any case, the contraband recovered which is more than 10 K.Gs. for which the impugned sentence has rightly been awarded to the appellant.
12. It is admitted fact that the contraband was received by the FSL after 5 days of the occurrence, but on this technical ground the appellant cannot be benefited as huge quantity has been recovered from the vehicle in question, which was being driven by the appellant and he cannot be absolved from the liability of conscious knowledge of the contraband, which has been recovered from the Motor Car. Wisdom in this regard can be drawn from a case reported as Kashif Amir Vs. The State (PLD 2010 SC. 1053), wherein it has been held that the contraband recovered from the vehicle, which was driving by the appellant/driver cannot escape from having conscious knowledge of the contraband, which was recovered from the same vehicle. The relevant portion of the judgment is reproduced as under: It is well settled principle that a person, who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics, having knowledge of the same".
13. The transportation of narcotics in such a quantity cannot be ignored, which is distributed not only in the country, rather the same is transported abroad; which earns bad name for the whole country at international level. The offence committed by the appellant is against the society and Courts are very conscious regarding such like offences and if it is prove beyond shadow of doubt, the law has provided severe-punishment, so that the same is a lesson for the other persons having the same mentality and of the drug mafia too. Though there are some minor discrepancies and some lapses on the part of the prosecution, but in the light of the evidence produced by the prosecution especially the statement of P.W. 6 to connect the accused with the commission of the offence, hence the prosecution has proved its case beyond any shadow of doubt. All the witnesses produced by the prosecution are straightforward having no ill-will or enmity or mala fide to falsely enrope the appellant in the case.
14. After appraisal of evidence and material available on file we have come to the irresistible conclusion that the learned trial.Court after appreciation of evidence has rightly held that the prosecution had undoubtedly established the recovery of contraband' in the shape of charas pukhta and garda weighing 30 K.Gs. from the secret cavities of the vehicle being driven by convict- appellant, regarding which he had full knowledge. Witnesses appeared in the trial Court against the appellant had no enmity or malice against him. Thus, though they are official witnesses, but in the absence of above said enmity or grudge, they are as good witnesses as other public witnesses and their testimony could not be discarded or brushed aside on the sole ground that they are police officials. It is evident from the evidence on record that all the witnesses of the prosecution who had witnessed the recovery of the contraband mentioned above from the Motorcar mentioned above, which was being driven by the appellant, have remained consistent, despite lengthy cross-examination of the defence. Hence we find no reason to discard their testimony and we are of the considered view that the prosecution has successfully established its case through cogent evidence which was not at all shattered by the defence during cross-examination.
Keeping in view the above discussion we hold that the impugned judgment and order of the trial Court is well founded and needs no interference by this Court. Consequently the conviction and sentence of the appellant is maintained and the appeal in hand being devoid of force is hereby dismissed.