' IKRAMULLAH KHAN, J.---Through this single judgment, we intend to dispose of Criminal Appeal Nos.536 of 2010 and 571 of 2010, as both the appeals are outcome of the same judgment, vide which, the appellants are awarded conviction and sentence of life imprisonment with a fine of Rs,1,00,000 or in default whereof to undergo one year simple imprisonment by the learned Judge, Special Court (CNS), N.-W.F.P., Peshawar in case F.I.R. No, 59 dated 18-6-2008, registered under section 9(c), C.N.S.A. Of the Control of Narcotic Substances Act, 1997. However, benefit of section 382-B, Cr.P.C. Was extended to them.
2. The prosecution case as per F.I.R. Is that pursuant to a tip off, on 18-6-2008; the narcotics smugglers would try to smuggle narcotics from tribal territory to Punjab via Motorway by Suzuki Van Bolan bearing Registration No, KF-256 Islamabad, upon this, S.I. Mumtaz Hussain (P.W.6) along with other police personnel, laid Nakabandr . In the meanwhile at, 0730 hours, the said vehicle, coming from Peshawar side, was forcibly intercepted for checking by blocking the road; driver disclosed his name as Muhammad Saeed son of Abdur Rashid, while the person sitting with him on front seat, disclosed his name as Muhammad Shakoor son of Muhammad Din. On search of the vehicle, 116 packets of charas garda from its secret cavities made in the roof, 28 packets of charas garda from the secret cavity made in the floor and 8 packets of charas garda from the rear seat towards left side cavity of the vehicle were recovered. On weighment, charas garda recovered from the roof of the vehicle stood 116 Kgs. Charas recovered from the floor of the vehicle stood 33.600 Kgs. And charas garda recovered from the cavity made in the rear seat stood 9.600 Kgs.
Total of which was weighed 159.200 Kgs. He separated 10/10 grams from each packet of charas garda and prepared 152 sealed parcels of samples for chemical analysis, while sealed the remaining substance into 8 bags. On personal search of accused Muhammad Saeed, led into recovery of one wallet; having Rs,2,860, CNIC, different chits/visiting cards, mobile set Nokia and registration book of the vehicle; while from the personal search of accused, Muhammad Shakoor, led into recovery of mobile set Nokia and photocopy of his CNIC. He arrested the appellants, drafted the murasila, and sent to the Police Station for registration of the case, where a formal F.I.R., referred to above, was registered against them.
3. On completion of investigation, complete challan was submitted against the appellants to the Court for trial, where the copies of the relevant documents as required under section 265-C, Cr.P.C.
Were supplied to them. The charge was accordingly framed against the appellants, to which they pleaded not guilty and claimed trial.
4. The prosecution in order to prove the charge and substantiate the allegations levelled against the appellants, produced five (5) witnesses at the trial. The appellants, on the conclusion of the prosecution evidence, were examined under section 342, Cr.P.C., who denied the charge and pleaded innocence. Howeyer, they did not opt to lead any evidence in their defence or appear themselves as their own witnesses in terms of section 340(2), Cr.P.C. The trial Court, after hearing the parties and appraising the evidence, convicted and sentenced the appellants as referred to above. Feeling dissatisfied with the conviction and sentences, the appellants have come to-this Court with the instant appeal.
5. The learned counsel, representing appellant-convict, Muhammad Saeed, argued that the impugned findings of the trial Court qua conviction and sentence of the appellant are result of misreading and non-reading of evidence, as the prosecution has not brought on record any cogent and solid proof to connect the appellant with the commission of offence; that the prosecution evidence is full of material contradictions; that the investigation is not conducted in impartial and fair manner; that the alleged contraband was tested by a Forensic Laboratory which was incompetent for the purpose; that even the Assistant Chemical Examiner, who submitted his report was not a government analyst within the meaning of section 36 of the Control of Narcotic Substances Act, 1997; that allegedly recovered narcotics were sent to FSL beyond the prescribed time, as envisaged in Rule 4 of the Government Analyts Rules, 2001; that the recovery of narcotics was not witnessed by any other person except the A.N.F officials, though the alleged recoveries were effected near the Toll Plaza on the Motorway, where at least, motorway officials are available all around the clock; that charas garda as allegedly recovered does not fulfil the test of psychotropic substance.
6. The learned counsel appellant-convict, Muhammad Shakoor, took the plea with great vehemence that the prosecution has miserably failed to bring on record any incriminating material against the appellant-convict to connect him either directly or indirectly with the commission of the alleged offence; that no one shall be held responsible only for the reason that he was sitting in car whereof allegedly narcotics were recovered and that too from secret cavities. She relied upon various judgments of this Court as well as that of the Hon'ble apex Court. She referred to some unreported judgments of this Court, passed in Criminal A. No,789 of 2010 and Criminal A. No,290 of 2011.
7. Conversely, the learned counsel on behalf of A.N.F argued that prosecution has succeeded in bringing the guilt of the convicts to home; that all witnesses are uniform and consistent on all material points; that both the appellants were arrested while on the way from Peshawar to Punjab and a huge quantity of narcotics worth million was recovered from the secret cavities of the car, particularly designed and made to conceal thereof the narcotics, was impossible to be effected without the conscious knowledge of both the appellants; that A.N.F officials have no false motive against the appellants to involve them in such like heinous offence; that the trial Judge has correctly and rightly appreciated the evidence and rightly convicted and sentenced the appellants. He also produced copies of Notifications in respect of the concerned F.S.L and the Chemical Examiner that they are established, declared and authorized by the Government to conduct and test all kinds of psychotropic substance, as defined in Control of Narcotic Substances Act, 1997.
8. We- have heard counsel for both the parties and also gone through the available record of the case with anxious consideration to all the grounds raised by either party.
9. In the present case, a huge quantity of narcotics (charas garda) was recovered from the car, wherein appellants were allegedly travelling, when the same was intercepted by the A.N.F officials on prior information and 159.200 KGs were recovered from the secret cavities of the car, especially designed and made for the purpose, and consequent thereof, both the appellants were sentenced to life imprisonment, therefore, justice demands to thrash out each and every bit of evidence against the appellants qua the objections raised by the learned counsel on behalf of appellants- convicts.
10. Sections 34 to 36 of Control of Narcotics Substances Act, 1.997 deals with and describe Federal Narcotics Testing Laboratories, Government Analyst and report of Government Analyst which are reproduced herein below:-- Section 34 "Federal Narcotics Testing Laboratory, etc. ---(1) Federal Government may, as soon as may be after the commencement of this Act, set-up a Federal Narcotic Testing Laboratory and such other institutes and narcotics testing research laboratories or notify any other laboratory or institute to be a Federal Narcotics Testing Laboratory for carrying out the purposes of this Act.
(2) The Provincial Government may, whenever deems appropriate, set-up Provincial Narcotics Testing Laboratories".
Section 35 "Government Analyst. ---The Federal Government or a Provincial Government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Federal Government Analysts or, as the case may be, Provincial Government Analysts, for such areas and in respect of such narcotic drugs, psychotropic substances or controlled substances as may be specified in the notification. Section 36 "Reports of Government Analysts.- --(1) The Government o whom a sample of any narcotic drugs, psychotropic substance or controlled substance has been submitted for test and analysis shall deliver to the person submitting it, a signed report in quadruplicate in the prescribed form and forward one copy thereof to such authority as may be prescribed.
(2) Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted, be conclusive.
11. The above mentioned provisions of law on the subject-matter, very transparently and in unambiguous terms, authorizes the Federal Government to set up a Federal Narcotics Testing Laboratory, any other institutes or Narcotics Testing Research Laboratories or to notify any other, already existed such like institutes or Laboratories to be Federal Narcotics Testing Laboratory within the meaning of section 34 of Act (ibid) and likewise has vast powers to authorize any person, having the prescribed qualifications for the purpose, as defined in the rules framed thereunder in this Act, to be the Government Analyst within the meaning of and as far as section 35 of Act (ibid) is concerned, whereof the report prepared, analysis done and test conducted and verified by such person shall be the report of Government Analyst as contemplated in section 36 of the Act (ibid), irrespective of the fact that wherever said Laboratories were established and situated and whether the report submitted by the authority is Assistant Chemical Examiner or Chemical Examiner.
Section 510 of Cr.P.C., 1898 has made admissible all such like documents pertaining to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government.
12. As already pointed out by the learned counsel for A.N.F, the Laboratory whereof conducted the test of narcotics submitted to it by the ANF is a notified and registered Laboratory for such like purposes and the Chemist as well as the Chemical Examiner, namely Dr. Khalid Islam is a notified Government Analyst within the meaning of section 35 of the Act (ibid). For the purpose, reference may also be given to the case of Shah Faisal v. The State (PLD 2009 Quetta 40), where it was held that; "Any report submitted by Chemical Examiner or Assistant Chemical Examiner notified under section 510, Cr.P.C. Was a report of Government Analyst within the meaning of sections 34 and 35 of the Act
(ibid) and admissible in evidence."
13. Reliance can also be placed on the case reported as 2001 PCr.LJ 879. This Court too in an unreported Criminal Appeal No,290 of 2011 decided on 27-3-2013, has held that the Chemical Examiner or Assistant Chemical Examiner both well notified under sections 34 and 35 of Act (ibid) are considered to be the Government Analyst as defined under section 36 of the Act (ibid).
14. In the case in hand, the report submitted, placed on record and exhibited during trial, is an admissible piece of evidence within the meaning of section 510, Cr.P.C., and prosecution has proved that the recovered narcotics in shape of "CHARAS GARDA" as per the report of F.S.L concerned; was a psychotropic substance as defined under clause (d) item No, (i) of section 2 of Control of Narcotic Substances Act, 1997, irrespective of the shape, as it was at the time of recovery or later on at the time of exhibition before the trial Court. Item No,(i) clause (d) of section 2 of the Act (ibid), envisaged as;
(d) "cannabis (hemp)" means;
(i) cannabis resin (charas) that is, the separated resin, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish.
15. All forms of, whatever may be its shape i.e, granules, solid or liquid, powder in raw-material or in scientific form, any narcotic drug, psychotropic substance or controlled substance as defined thereof in the said Act (ibid), and its manufacturing, extracting, preparation, possession, selling, importing or exporting, transportation etc. Are all. Prohibited acts under section 6 of the Act (ibid) and are punishable under section 9 of the Act (ibid).
16. As far as the violation of Rules 4 and 5 of Government Analyst Rules, 2001 is concerned, these rules are directory in nature and in some particular circumstances, and in so far as an accused is not specifically caused prejudice, non-compliance does not vitiate the trial at all, however, in this particular case, we did not notice any delay, either in sending the recovered narcotics to the concerned FSL, or receiving back report beyond the prescribed time for the purpose. The alleged narcotics were recovered on 18-6-2008, sent to and received in the concerned Laboratory on 20- 6-2008, whereof the report was submitted on 25-6-2008, which is strictly within the prescribed time as envisaged in Rules 4 and 5 of the Government Analyts Rules, 2001.
17. As far as the contradictions as pointed out by the learned counsel are of no value. There seems no material contradiction in the statement of prosecution witnesses qua the time, place and recovery of narcotics from the secret cavities of the car, driven at the time by appellants, as all the prosecution witnesses were found consistent in their depositions on all material points even to the quantity in each packet, which was affirmed too by the trial Court on de-sealing of packets, containing contraband, on the request of appellants' counsel.
18. Admittedly, both the appellants were found present in the car, intercepted and searched out on the spot by the A.N.F. Officials, whereof a huge quantity of charas garda was recovered in the immediate presence of both the appellants and other prosecution witnesses, which were weighed and sealed on the spot in their presence, whereby no irregularity either in conducting the search, arrest or in investigation has been pointed out by the defence counsel, while both the appellants have categorically admitted not only their presence in the car but also the recovery of the contraband from the vehicle in question as stated by them in their statement recorded on the conclusion of their trial before the trial court under section 342, Cr.P.C. Such admitted facts cast a heavy duty upon the Court to presume in a trial under section 29 of Control of Narcotic Substances Act, 1997 that the accused has committed the offence under section 9 of the Act (ibid), unless contrary is proved. However, firstly prosecution has to establish the fact that narcotics drugs were recovered from the possession of the accused. If the prosecution proves the recovery of contraband from the constructive custody of the accused, then the burden of proof lies on the accused to prove that the contraband recovered was not in his conscious knowledge.
19. In the instant case, primarily the onus was upon the prosecution to prove that whatever was recovered were narcotics drugs and the same were recovered from the possession of the appellants.
20. Perusal of the record indicates, as mentioned above, that not only the prosecution witnesses, by their consistent, uniform and inspiring confidence evidence, without any shadow of doubt in all aspects, has proved that the articles, recovered from the secret cavities of the car which was in the immediate and exclusive possession of the appellants, were narcotics drugs punishable under section 9 of Act (ibid), but also the appellants have not denied from the fact that they were not travelling in the car at the time of interception, search and recovery of contraband from the car, leave no doubt in the prosecution case against the appellants, which by all intents and purposes and be presumed that appellants were apprehended while present in the car, whereof a huge quantity of narcotics drugs were recovered, which was found to be charas garda as per report of the Chemical Examiner.
21. As the car was in the immediate and exclusive possession of the appellants, no other inference would be gathered except that no one else may make, design the secret cavities without the conscious knowledge of appellants for the purpose of concealment of contraband in the car. In such like situation, when a fact is particularly within the knowledge of a person, the burden of proving that particular fact is upon him.
22. Article 122 of the Qanun-e-Shahadat, 1984 explains such like situation as; "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him".
' In the illustrations (a) as provided thereof in this Article says:
(a) When a person does not act with- some intention other than that which the character and circumstances of the act suggest, the burden of proving that fact is upon him.
23. Appellants in the instant case were bound to prove that the section cavities made therein in the car and concealment of the contraband was not in their knowledge but they failed to discharge their burden in the situation of the present case, even at least they not opted to substantiate their this bald plea to record their statements on oath as provided under section 340(2) of Cr.P.C. To appear as their own witnesses in proof of their plea of innocence.
24. Apparently, both the appellants were in the exclusive possession of the car, whereof narcotics drugs were recovered, presumed to be that, the narcotics concealed in the secret cavities of the car was in their knowledge and as such both the appellants were said to be in conscious possession of the narcotics, otherwise they must prove that they were ignorant of the contraband.
25. Section 25 of the Control of Narcotics Substances Act, 1997 without any second opinion, exclude the operation and applicability of section 103, Cr.P.C. In respect of all kind of searches, purportedly done, effected under this special law of Control of Narcotic Substances. 2009 SCM R 306 and 2011 PCr.LJ 398 may be quoted herewith for reference. However, there is no proof or admission either on behalf of appellants or prosecution respectively, that at the time of search of the vehicle any other private person except the AMP officials were present on the spot and were not made witnesses to the recovery process.
26. As far as the case of other appellant, who was shown as co-accused, present and sitting in the car on the passenger seat, who belong to an area far-off that of the other co-accused, did not succeed that his presence in the car was a result of any incident, both are drivers by profession, as he has himself admitted, came along with other accused/appellant to Peshawar and they were back on the way to Punjab when apprehended with huge cape of narcotics, could not be absolved from the responsibility of having and possessing the contraband. The judgments cited by the learned counsel at the bar in support of one of the appellants who was found sitting on the passenger seat, are not concordant to the facts of the instant case, as the accused acquitted, as mentioned in those cases, were found thereof as by chance and were free loader, as no vehicle was available on the road on the day of incident, while in this case, the presence of co-accused is with purpose as mentioned in detailed in this judgment.
27. Keeping in view, the detailed reasons given herein above, we found no infirmities in the impugned judgment of the trial Court. Accordingly, these criminal appeals are hereby dismissed and the conviction and sentence passed and awarded to appellants are upheld.