' IKRAMULLAH KHAN, J.---Appellants Sher Akbar and Said Karim, were tried by the learned Judge, Special Court, established under the Control of Narcotic Substances Act; (herein after referred to as C.N.S.A) at Peshawar in case F.I.R No, 19, dated 5-3-2010 registered with Police Station Anti- Narcotics Force, Peshawar, for an offence under section 9(c) C.N.S.A. Learned trial Court vide judgment dated 12-4-2011 in Case No, 23 of 2010, convicted both the appellants under section 9(c) of C.N.S.A., and sentenced them to suffer life imprisonment each, with a fine of Rs,50,000 each or in default thereof to undergo further one year simple imprisonment each. Benefit of section 382-B, Cr.P.C., was extended. Appellants have preferred separate criminal appeals before this Court against their convictions, which have been registered as Criminal Appeal No, 290 of 2011 and Criminal Appeal No, 319 of 2011. As both the appeals are outcome of the same impugned judgment, so we intend to dispose of these two appeals by a single judgment of today.
2. The prosecution story in brief is, that on 5-3-2010 on the spy information, that a huge quantity of narcotics would be smuggled through Truck No, TKJ-592 on which Container No, GLDU-2172(0) would be fixed and narcotics would be concealed in the secret cavities of the container, which would be smuggled from Tribal Territory to Punjab, Mumtaz Hussain S.-I., along with other ANF officials, constituted a raiding party and conducted a barricade near Kacha Garhi Jamrud Road Peshawar. In the meanwhile, at about 2030 hours, the said vehicle emerged, which was signalled to stop for the purpose of checking. Driver and 2nd seater were overpowered and on query driver disclosed his name as Sher Akbar son of Noroz Khan, while the 2nd seater disclosed his name as Said Karim son of Habib Shah. On the spot the container was searched, which was apparently loaded with marble slabs. In the front portion of the container there was a secret cavity, which was verified by both the occupants. Vehicle was brought to Police Station ANF, Peshawar, where it was thoroughly searched. Mumtaz Hussain S.-I., opened the secret cavities made in the front portion of the container and recovered 50 packets of heroin, duly wrapped in yellow tape, white cloth and plastic. Each and every packet was weighed after removing the packing material. Each packet was of one Kg, thus total stood 50 Kgs, heroin. Mumtaz Hussain S.-I., separated 10/10 grams from each packet, of heroin and prepared 50 parcels of samples for the purpose of laboratory test. Remaining heroin was sealed into two bags along with packing material. The Registration Book of the truck was also recovered from the dashboard of the vehicle. Personal search of the both persons led to the recovery of one CNIC, Rs,9800 in cash, pocket phone diary, a mobile phone set Nokia from Sher Akbar, while Rs,580 in cash, CNIC, pocket phone diary and some visiting cards from Syed Karim. All the narcotics so recovered along with Truck/container, Registration Book and personal searches of both the persons were taken into possession by Mumtaz Hussain S.-I., vide recovery memo Exh.P.W.4/1, in presence of the witnesses, which resulted into above mentioned F.I.R Exh.P.W.4/2. After completion of investigating case file was handed over to the S.H.O./AD Sardar Abdul Waheed for submission of complete challan.
3. On commencement of trial, provision under section 265-C, Cr.P.C. Complied with and appellants were formally charge-sheeted, wherein they pleaded not guilty and claimed trial. The prosecution in support of their version as stated in the F.I.R. In respect of arrest of appellants and recovery of narcotics (Heroin) from the secrete cavities produced as much as five witnesses before the trial Court. FC Aurangzeb, as P.W.1, who took 50 sealed parcels of samples to Forensic Science Laboratory, Rawalpindi on 8-3-2010. A.S.-I. Muhammad Ayub, as P.W.2 received the samples and the case property of the instant case from the investigation officer on 6-3-2010 at 0100 hours, for keeping it in safe custody and thereafter handed over to P.W.1, who took the same to FSL. A.D, Sardar Abdul Waheed, P. W.3 submitted complete challan in terms of section 173, Cr.P.C., before the trial Court. Mumtaz Hussain, P.W.4, headed the raiding party, intercepted the confiscated vehicle recovered the narcotics from the secret cavities and thereafter arrested the accused and investigated the case. H.C. Mussarat Ali, P.W.5, is marginal witness to the recovery memo and an eye witness, in whose presence contraband was recovered from the secret cavities, as he was accompanying the ANF officials, herein above mentioned.
4. On conclusion of the prosecution evidence, appellants were provided an opportunity by the trial Court to record their statements and as such both the appellants categorically stressed their innocence and stated that they had taken lift from the driver of the confiscated truck; that they are innocent and the ANF officials have made good escape of the real culprit/ driver of the Truck and made appellants as escape-goat in this case. Convicts/ appellants also adduced evidence in support of their contention and produced three witnesses as DW-1 to DW-3. The learned trial Judge, on conclusion of the whole trial held both the appellants guilty of the charge and convicted them as mentioned in the opening paragraph of this judgment. Hence, the present appeals.
5. Learned counsel on behalf of appellants vehemently contended that the story of prosecution is highly concocted one and appellants were falsely implicated, while the real culprit Qatar Zaman has made good his escape; that both appellants were boarded on confiscated vehicle and totally align to ownership of the recovered narcotics; that nothing incriminating is 'recovered from both of appellants to connect them in any manner with the possession of the recovered narcotics or with the ownership of the confiscated vehicle used in the commission of offence.
6. On the opposite side, learned counsel on behalf of ANF vehemently stressed while argumenting that appellants are the real culprits, who both were apprehended while travelling and driving the vehicle; that ANF officials have no personal grudge with appellants and not known to them previously, nor any such plea has been agitated by the appellants; that a huge quantity of heroin is recovered from the confiscated vehicle, which worth is in millions in the international and domestic market, while ANF officials cannot arrange so huge quantity and that for no any ulterior motives, supported the judgment of the trial Court.
7. Arguments heard and file perused.
8. We do not feel here again to reiterate the whole evidence and facts of the case, which is already brought in this judgment, however, feel anxious to refer some pieces of evidence brought on record by the prosecution as well as by defence, while cross-examining the prosecution witnesses, which are necessary for disposal of appeals. Both the appellants, without any doubt have admitted their presence in the confiscated vehicle at the crucial time of raid. Both appellants have not denied the factum that contraband is not recovered from the secret cavities of the confiscated truck, so there is no need to discuss or advert to any un-valuable discrepancies in various statements of prosecution witnesses, if any. This is an admitted position, as evident from style of cross- examination and statement of appellants recorded under section 342 Cr.P.C., that both appellants were found, while present inside the confiscated Truck, however, one appellant namely, Syed Karim was a passenger sitting in the front seat of the concerned Truck, while appellant Sher Akbar was found on driving seat. So the prosecution has succeeded in proving the recovery and arrest of accused. When such a position is confronted with the Qanun-e-Shahadat Order, 1984, Article 122, which envisages that:-- "122. Burden of proving fact especially within knowledge.---When any fact is especially within the knowledge of any person the burden of proving that fact is upon him."
' To fulfil their liabilities, appellants tried to discharge their burden and produced defence witnesses to get rid of the case.
Sher Akbar recorded his statement as its own witness, as provided under section 340(2) Cr.P.C., and deposed that he was neither driver of the truck nor owner of the contraband. Further stated that he is working as a Labourer in Godown of one Fatal Ghani situated in Wazir Dhand Karkhano market. He took lift in the confiscated truck and when he sit in the Truck two other persons were already occupied their seats out of one was on driving seat. On interception by the police, the driver made his escape good and appellants were arrested on recovery of contraband from the vehicle. DW-1 Soocha Gul appeared in witness box as defence witness and stated that appellant Sher Akbar was working as Labourer in his godown. Usman other D W stated that on the day of occurrence, he alongwith appellant were waiting for a passenger bus and as such this witness climbed up a passenger bus known as Mazda, while Sher Akbar left on the road side, as he did not manage it. Appellant Said Karim also examined himself as its own witness in rebuttal of the charges levelled against him and stated on oath that he is innocent. He is a cleaner and due to his Troller went out of order, he was allowed to go back house, and for the reason, he also took lift in the confiscated Truck. Azeem Khan recorded his statement as DW-3, in support of the contention of appellant Said Karim and stated on oath that appellant Said Karim is working with him as cleaner and on the day of occurrence, he was with him, but due to some fault he stand his vehicle in Karkhano market and appellant was relieved to his home and that the appellant is innocent.
9. From the bare perusal of statements of defence witnesses, it does confirm that appellants were arrested while present in front, seat of the Truck, however, these witnesses seems not trustworthy as they never approached the concerned quarter, within a span of more or less a year, after registration of the case against appellants to plead innocence for both of the appellants, nor appellants ever applied to any official of ANF or to the Court to appraise them of their innocence.
However, no witness has deposed and specifically proved that appellants were working and standing on the road with them on 5-3-2010. So this evidence is procured one and afterthought.
Appellants cannot take any benefit of this evidence, but the prosecution is not totally resolved from their primary duty to prove its case against the appellants beyond reasonable doubt.
10. Though under section 29 C.N.S.A. Burden lies on the accused to give evidence in disproof of prosecution evidence to ab solve themselves from responsibility of having or carrying contraband.
As far as, accused Sher Akbar is concerned, prosecution is proved its case against him that at the time of interception of the Truck, he was driving the Truck, so contraband cannot be concealed in the Truck without his conscious knowledge. As far as, appellant Said Karim is concerned, though he was present in the vehicle, but there is no any evidence; that either he was cleaner or helper in the Truck nor any incriminating material is recovered from him, so his case stands on different footing, as far as appellant Sher Akbar is concerned. As appellant Said Karim was not driving the vehicle in question at the time of interception and search and was sitting along with the other convict/ appellant and no recovery has been made on his pointation and narcotics substance were recovered from the secret cavities of the Truck in question and prosecution had not established conscious possession of the appellant Said Akbar. So, keeping in view his different status, we allow Criminal Appeal No, 319 of 2011, filed by appellant Said Karim, set aside the conviction and sentence recorded by the trial Court and acquit appellant Said Karim of the charges by extending benefit of doubt to him. While Criminal Appeal No,290 of 2011, filed by appellant Sher Akbar bears no merit, as such we maintain the sentence and conviction awarded to appellant Sher Akbar and in consequence dismiss his appeal.