' SALLAHUDDIN PANHWAR, J.---This Criminal Appeal is directed against the Judgment dated 6-5- 2010, passed by learned Special Judge, CNS, Khairpur in Special Case No,71 of 2007 (Re- St.Vs. Muhammad Yousuf), arisen out of Crime No,3 of 2007 of Excise Police Station, Gambat, registered for offence punishable under section 9(c), Control of Narcotic Substances Act, 1997, and sentenced the appellant/accused to suffer R.I for 14 years and fine of Rs,2,00,000 (Two Lacs). In default of payment of fine will suffer S.I. For 2 years more. The appellant/accused was granted the benefit of section 382-B, Cr. P. C .
2. The relevant facts to this appeal are that on 20-9-2007, complainant AETO Syed Sajjad Hussain Shah on receiving information that Charas is being transported from Quetta to Karachi in a Van bearing No,CL-5558, proceeded along with his staff vide entry No,1 and reached at Excise Check- post Rasoolabad. After sometime, they noticed the said Van, same was stopped by them, and found one person sitting on driving seal, during search they found 40 bundles of Charas from the secret cavities of Van, 100 grams from each bundle were separated and total 4000 grams were scaled for chemical examination. The appellant/accused was arrested under mashirnama and such F.I.R. Was registered.
3. After usual investigation challan was submitted, charge- was framed by the trial Court on 8-10- 2008, against the appellant/accused at Exh.2, the appellant pleaded not guilty, during trial prosecution examined P.W.1/Mashir PC Muhammad Aslam at Exh.4, who produced mashirnama of arrest and recovery; P.W.2/complainant AETO Syed Sajjad Hussain Shah at Exh.5 who produced F.I.R.
At Exh.5/A and arrival entry at Exh.5/B; P.W.3/Excise Inspector Mushtaque Ahmed at Exh.6, who produced letter for Chemical Laboratory Sukkur at Rohri and Chemical Examiner's Report as Exhs.6/A and 6/B, respectively.
4. The statement under section 342, Cr.P.C. Of the appellant/ accused Muhammad Yousuf was recorded. The appellant also recorded his evidence on oath at Exh.9, thereafter the learned trial Judge after hearing the parties' counsel recorded conviction against the appellant/ accused as stated hereinabove.
5. The counsel for the appellant/accused has inter alia contended that allegedly 40 packets of Charas from secret cavities of Van, in shape of rods were recovered, but from whole property samples were not taken for chemical examination; the prosecution has failed to trace-out owner of the Van during investigation; allegedly the appellant/accused was Driver; the prosecution failed to prove that the appellant/accused was having knowledge about the said property. He has relied upon case of The State through Advocate-General v. Sarfraz and others reported in 2011 SCM R 965 and 641; PLD 2004 SC 856; 2007 SCM R 206 and 1995 SCM R 1345.
6. Conversely, learned D.P.G has argued that the prosecution has proved its case beyond the shadow of doubt, during lengthy cross-examination the defence counsel has not succeeded to bring on record any material contradictions; the judgment passed by the trial Court is very much >legal and proper and has relied upon case of Muhammad Noor v. The State reported in 2010 SCM R 927.
7. We have examined the evidence, led by the prosecution; P.W.1 EC Muhammad Aslam in his deposition has deposed that on the date of recovery he was member of the Excise Police at Rasoolabad check-post, where at about 9-00 a.m., the Van No,CL-5558 of brown colour came from Quetta/Sukkur side, as such they stopped and saw that one person was sitting on the driving seat, on enquiry he disclosed his name as Muhammad Yousuf son of Muhammad Akber Niazi from his personal search cash of Rs,1,500 were secured from him and then on search by AETO Syed Sajjad Hussain Shah 40 packets of Charas were secured from the secret cavities of the Van, out of which 100 grams from each bundle was separated and sent for chemical examination. Thereafter such mashirnama of arrest of appellant/accused and memo of recovery of Charas was prepared in his presence as well as co-accused EC Pervaiz Ahmed.
8. P.W.2/AETO Syed Sajjad Hussain Shah in his deposition has stated that on 20-9-2007 he received a spy information that narcotics is being smuggled from Quetta to Karachi in a Van No,CL-5558 Karachi, therefore, as per entry No,1 he along with his subordinate staff EC Ghulam Ali Jumani, EC Muhammad Aslam, EC Muhammad Pervaiz, EC Noorullah, EC Hazoor Bux left Excise Police Station and went to Rasoolabad Check-post, where at about 10-30 a.m., one Van came from Sukkur side, which was stopped, in which one person was sitting on the driving seat, on enquiry disclosed his name as Muhammad Yousuf Niazi and from his personal search cash of Rs,1,500 were secured, while from the checking of the Van 40 bundles of Charas were secured from the secret cavities of the Van, each bundle was 1 K.Gram, therefore, 100 grams from each bundle were sealed separately for chemical examination while remaining quantity was sealed in a Bachika (bag) and then prepared such mashirnama in presence of mashirs EC Muhammad Aslam and EC Pervaiz and then the accused and property were brought at P.S, where he registered the F.I.R.
9. P.W.3/Excise Inspector Mushtaque Ahmed Shaikh, has deposed that after registration of F.I.R., investigation was entrusted to him, he recorded the statements of P. Ws. EC Muhammad Aslam, EC Pervaiz Ahmed, sent the samples to the Chemical Laboratory through EC Amir Ahmed Soomro on 21-9-2007, and submitted challan.
10. While appellant/accused Muhammad Yousuf recorded his statement on oath at Exh.9 and contended that on 20-9-2007, he was coming from Quetta to Sukkur and then Karachi in a Coach.
The Coach was stopped by Excise Police at bye-pass and then arrested him and 40 K.G, Charas was not recovered from his possession.
11. We have examined case law relied by both counsel, it will be conducive to reproduce the authoritative view of the dicta laid by honourable Supreme Court, in case of Abdul Rehman (supra), it is held:-- "After perusal of the record in the light of arguments advanced before us, it appears that that there is previous record of the conviction of the petitioner in any offence.
' The recovery effected is Charas as pointed out by the learned counsel is distinct from Heroin, therefore the case calls for a lenient view."
' In case of The State through Advocate-General v. Sarfraz and 3 others (supra), it is held that:- "There is no evidence to establish that the samples secured from the narcotics material are the same which have been taken from the remaining/destroyed material. If the prosecution fails to prove this factum before the court by producing such type of evidence, it cannot be presumed that such huge quantity of the Narcotics material had been recovered from respondent".
' We have examined both cases, in both cases, appeals were dismissed with modification in judgment, but in instant case in hand no such discrepancy was found in evidence and property recovered from appellant, and thus case law is not helpful for applicant even for reduction of sentence.
12. Regarding the contention of learned counsel for appellant that allegedly appellant was driver of van, therefore prosecution failed to succeed to bring on record that applicant was having knowledge of charas available in cavities of van, in that regards, it is worth to say that when he was driving the vehicle, he was in charge of the same, therefore, it would be under his control and possession, especially, when appellant had started alone a long journey from Quetta to Karachi in said van from which recovery was effected, as being person incharge of the vehicle for such a long journey , would draw presumption against him, that narcotics substance available in secret cavities of van was in his knowledge, in similar circumstance honourable Supreme Court in case of Muhammad Noor has held that:- "It is necessary to show that the accused had the article, which turns out to be narcotics drugs. In other words the prosecution must prove that the accused was knowingly in control of it".
' It is further held that:-- "Keeping in view the principles of law, the appellant Muhammad Noor is driver, he is in possession of the vehicle and also in possession of the articles whatever lying in it. The allegation against the appellant Muhammad Ramzan is that on his information secret cavities of vehicle were opened and Charas was secured. Thus, from such information it has been established that he had knowledge of the availability of charas in the secret cavities of the vehicle. Therefore, the appellant Muhammad Ramzan is also involved in the case along with the appellant Muhammad Noor. Hence the case has been proved against both the appellants Muhammad Ramzan and Muhammad Noor."
13. We have examined thoroughly the evidence led by the prosecution and statement of appellant/accused. Admittedly, none of the prosecution witnesses had any enmity with the appellant/accused, nor it was ever suggested in absence of that, there is no reasons why he should be falsely implicated and a huge quantity of contraband has been foisted upon him. The evidence of the prosecution witnesses remained consistent on all material particulars, despite lengthy cross-examination to which they are subjected. Regarding the contention of learned counsel for the C appellant/accused that samples were not taken from the rods, in this respect it is manifest on record that according to Chemical Examiner's Report 40 white paper packets each containing 9 black brown rods wrapped in a plastic pane were sent to Laboratory for examination, same were sent promptly on the same day, also reached in Laboratory on the same day, therefore, the contention of learned counsel having no force that representative samples were not taken from all rods of Charas.
14. The upshot of above discussion is that we did not find any merit in the appeal, which was dismissed by our short order dated 18-10-2012 for the foregoing reasons.