' MRS. IRSHAD QAISER, J.---This single judgment shall also decide Criminal Appeal No, 120 of 2010 (Safiullah and others v. State) and Criminal Appeal No,201 of 2010 (Muhammad 'Hashim v. State), because both are the outcome of the common judgment and evidence is also one and the same.
Brief facts of the case are that the high ups of Anti-Narcotics Force received information that on 19- 7-2008 a huge quantity of narcotics would be smuggled through Truck No,2477 Peshawar, via motorway. A raiding party was set up by the ANF officials headed by Sardar Abdul Waheed, P.W.3, and barrier was laid near Swabi Jehangira Interchange. At about 0030 hours the said vehicle became visible from Peshawar side and was signalled by the ANF official to stop. The driver along with the second driver of the truck were overpowered by the Force personnel. On inquiry the driver disclosed his name as Safiullah while the second driver disclosed his name as Ihsanullah. On superficial search of secret cavity narcotics were found by Sardar Abdul Waheed and on account of darkness and security reasons the truck was brought to the Police Station for thorough search.
On search in the Police Station in the presence of drivers and other witnesses, 95 packets of charas pukhta weighing 99 Kgs, 40 packets of charas garda weighing 48 Kgs and 26 packets opium weighing 38.200 Kgs were recovered from the truck and 10 grams from each packet was separated and sent to the Laboratory for scrutiny in sealed condition. Apart from this, Rs,11160 in cash, pocket phone diary, mobile phone set NOKIA, driving license, photocopy of CNIC, arms license and Crest Bank card were recovered from the personal search of Safiullah, Driver while Rs,1510 in cash, CNIC, driving license, a mobile phone set SAMSUNG along with sim card were recovered from the body search of Ihsanullah, second driver. Similarly registration book, permit Part B, insurance certificate policy in the name of Safiullah were recovered from the dash board of the truck. P.W.3 Sardar Abdul Waheed, took all the narcotics so recovered, the truck, the articles recovered from the drivers and dashboard of the truck into his possession, vide recovery memo Exh.P.W.3/1 in the presence of the marginal witnesses. A case under section 9 CNSA, 1997 was registered against them vide F.I.R. No,67 dated 19-7-2008 in Police Station ANF Peshawar.
2. After the arrest of the appellants and completion of investigation, they were forwarded to the Court of the learned Judge, Special Court, Peshaawar, for trial who on its conclusion convicted and sentenced each accused/apppellant to imprisonment for life with a fine of Rs,2,00,000 each or in default to undergo two years' S.I., with the benefit of section 382-B, ,Cr. P.C. Under section 9 CNSA, vide judgment dated 8-2-2010. However, the sentence in default was ordered to be run consecutively. Hence Criminal Appeal No,120 of 2010 filed by the appellants against their conviction and Criminal Appeal No,201 of 2010 filed by one Muhammad Hashim, for the return of the truck.
3. Learned counsel appearing on behalf of the appellants in Criminal Appeal No,120 of 2010 contended that the appellants are innocent and had falsely been implicated in the instant case; that nothing was recovered from the possession of the appellants and the alleged recovery of narcotics shown by the Prosecution is planted against them; that the appellants were arrested from their houses but they were wrongly shown by the Prosecution to have been arrested on the spot; and that the judgment of the learned trial Court is the result of misreading and non-reading of evidence and is liable to be set aside. While arguing Criminal Appeal No,201 of 2010, the learned counsel contended that the appellant is the sole and lawful owner of the truck in question and has never been the ownership of the convict; that the appellant is the sole and lawful owner of the truck on the basis of registration certificate; that there is no evidence to prove the ownership of the connected accused and that the truck has been used in the commission of the crime without his consent and knowledge and as such the judgment of the learned trial Court with regard to the confiscation of the truck being based on no evidence is liable to be set aside.
4. As against that, the learned counsel appearing on behalf of ANF contended that despite stern and searching cross-examination of the P.Ws. Nothing came forth as could discredit their testimony and that absence of any contradiction in their statements proves that they were natural and truthful in- their account. He next contended that there is absolutely nothing on the record to show even remotely that any of the P.Ws. Had any or ulterior motive to falsely implicate the appellants and that the conviction and sentence recorded by the learned trial Court being based on proper appraisal of evidence merits no interference. He further contended that truck being a case property has rightly been confiscated by the trial Court.
5. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
6. It is a case of two versions and the Court has to put Prosecution as well as defence version in juxtaposition and has to see which version is more probable. As per Prosecution case on- a tip-off that huge quantity of narcotics would be transported through Truck No,C-2478 Peshawar, via Motorway, Sardar Abdul Waheed AD, Police Station ANF, Peshawar, along with other officials laid a barricade near Swabi Jehangria Interchange, on 19-7-2008. At about 0030 hours the said truck appeared from Peshawar side which was signalled to stop and the drivers of the truck were immediately overpowered. On cursory search of the truck secret cavities were fixed inside the Taj/Chaja, where narcotics were detected. Due to darkness and security reason the truck along with the accused were brought to ANF Peshawar where in the presence of accused and marginal witnesses etc., huge quantity of narcotics was recovered. Prosecution in order to prove its case has produced both direct (eye-witness account) as well as circumstantial evidence to connect the accused with the crime. Ocular account is furnished by P.W.3, Sardar Abdul Waheed, Seizing Officer and P.W.4, HC, Zahoor Shah, marginal witness of recovery memo. Both these two witnesses have remained coherent and non-discrepant on all the material aspect of the recovery/ phenomenon.
They were subjected to lengthy/searching cross-examination but nothing favourable could be gained to the accused appellants. Said witnesses were consistent on all the material particulars and their statements are worthy of credence. No such discrepancy or conflict appears in the statements of these two witnesses to cause dent or dust in the Prosecution story regarding the factum of recovery. The recovery of narcotics not only proved by the confidence inspiring evidence of the P.Ws., it is also substantiated by FSL report, Prosecution has also been able to prove the safe custody and transit of sample through P.W.1, Moharrir, Ishfaq Hussain and P.W.2, FC, Syed Authar Ali Shah, respectively. Having proved the factum of the recovery of narcotic from the truck in possession of both the accused/ appellants (brothers), the Prosecution has succeeded to discharge its initial burden.
7. In rebuttal the contention of the accused appellants are that they were not arrested in the manner stated by the P.Ws. That they are innocent and falsely implicated and a concocted case was registered against them by the S.H.O., Sardar Abdul Waheed, due to mala fide. The plea taken by the counsel for the appellants and the appellants themselves is bereft of logic, reason and is also entirely unbelievable. For the first time they introduced this story while giving statements under section 342 and on oath under section 340(2), Cr.P.C., as well as, in defence that they are residents of Eidgah Road Peshawar and Sardar Abdul Waheed is residing in Kohati Peshawar. Due to altercation beween the sons of P.W. Sardar Abdul Waheed and accused Safiullah, S.H.O. Sardar Abdul Waheed and other officials came to their house and picked them to Police Station. But in cross-examination appellant Safiullah admitted that "I do not know where does Sardar Abdul Waheed resides. I cannot refute the suggestion that Sardar Abdul Waheed lives at Gulbahar."
Similarly DW.1 son of Safiullah also failed to prove the defence plea. He has also given cryptic and false statement because in cross-examination he, too was exposed to be tortured and falsely set up witness. His testimony is so artificial, it. Deserves to be rejected out rightly being bereft of any credence. The theory developed by the appellants is fantastic figment imagination and probably some wiser head has put it to their mouth to get rid of the criminal liability in this manner but it is not only a crude attempt but also a rough story bereft of legal worth, while on the other hand recovery was proved by the witnesses of raiding party, who had no personal reason to involve the accused in a false case. Accused had not been able to point out any discrepancy or contradiction in the evidence suggesting even a slight dust in the Prosecution case arising in favour of accused.
Under. Section 29 of CNSA, 1997 once the Prosecution has, prima facie, established its case, then the burden shifts upon the accused to prove contrary to the plea of Prosecution. But they failed while the Prosecution proved that the accused were apprehended red handed while driving the truck loaded with huge quantity of narcotics including charas and opium. It has also repeatedly been held by the superior Courts that accused being driver of the vehicle has the knowledge and control over all the articles lying therein. We, therefore, have no hesitation to hold that the charges against the appellants have been proved beyond any shadow of reasonable doubt and F that their convictions and sentences recorded by the learned trial Court are not open to any exception.
8. The contention of the learned counsel for the appellant that the recovery was not witnessed by persons from public, therefore, it has no legal value. We may observe' that section 25 of CNSA, 1997 excludes the application of section 103, Cr.P.C.
9. So far as the ownership of Muhammad Hashim, appellant in Criminal Appeal No,201 of 2010 with regard to the truck is concerned, admittedly contraband substances were recovered therefrom and throughout the trial proceedings, he never bothered to lay his claim before the learned trial Court but instead he waited fate of the case. After confiscation of the truck, he has now approached to this Court at appellate stage claiming its ownership for the reason best known to him and also to save himself from the clutches of the law being the alleged owner of the truck from where huge quantity of contraband containing of chars garda, pukhta and opium, were recovered from its secret cavities. Suffice it to say that law favour vigilant 'and not indolence because had he been owner of the truck, he would have approached the competent Court for the return of the vehicle. When he failed to avail all such remedies available to him under the relevant Statute, he cannot be given the custody of the vehicle. Keeping in view the above facts and circumstances of the case, we hold that the learned trial Court has rightly passed an order of confiscation of the truck by observing all the legal formalities as contained in section 32(2) of the CNSA, which is reproduced as under:- "(2) Any narcotic drug, psychotropic substance or controlled substance lawfully imported, transported, manufactured, possessed, or sold along with or in addition to any narcotic drug, psychotropic substance or controlled substance which is liable to confiscation under subsection
(1) and the receptacles or packages, and the vehicles, vessels and other conveyances used in carrying such drugs and substances shall likewise be liable to confiscation."
10. For the reasons discussed above, these criminal appeals being without substance are dismissed.