' YAHYA AFRIDI, J.---This criminal appeal is directed against the judgment and order dated 21-2- 2011, passed by learned Judge, Special Court (CNS), Khyber Pukhtunkhwa, Peshawar, whereby appellant Shakeel Khan has been convicted under section 9(c) of Control of Narcotic Substances Act, 1997, ("CNSA"), and sentenced to life imprisonment with a fine of Rs,100,000 (one lac), or in default of payment of fine to suffer S.I. For one year, in case F.I.R. No,24 dated 31-3-2010, registered at Police Station, Anti Narcotics Force, Peshawar ("F.I.R."). Benefit under section 382-B of Criminal Procedure Code, 1898 ("Cr.P.C.") has been extended to the convict-appellant.
2. Brief and essential facts of the case according to the F.I.R. Are that Nazir Alam S.I., complainant, on spy information that huge quantity of narcotics would be smuggled from Peshawar to Mardan, along with police party laid a picket at Mardan Nowshera road near Toll Plaza Motroway Mardan; that in the meanwhile a Suzuki Cultus bearing Registration No,LEB-8922, black colour ("Motor Car"), came, which was stopped; that the driver disclosed his name as Shakeel Khan; that on search of the Motor Car, from secret cavities made in its bumper, 19 packets weighing 19 K.Gs of 'Charas Pukhta' , 3 packets weighing 3.600 K.Gs of 'Charas Garda' and 5 packets weighing 5 K.Gs of 'Opium' were recovered, out of which ten grams from each packet were separated for chemical analysis; that on personal search of Shakeel Khan, his CNIC, driving license, mobile phone set, visiting cards and Rs,1620 in cash were also recovered; that search of the dash board of the Motor Car led to the recovery of Registration Certificate and transfer deed; that the narcotics recovered were taken into possession through the recovery memo and 'Murasila' was drafted, which was subsequently incorporated into F.I.R. No,24 dated 31-3-2010; that during the course of investigation, the convict- appellant disclosed the name of his accomplice Nasrullah son of Inayat Khan, therefore, he was also arrested and arrayed as an accused in the present case. After concluding the investigation, the challan was put in Court.
3. To prove its case, the prosecution produced as many as five witnesses; Muhammad Ayub, A.S.-I., Police Station ANF Peshawar, (P.W.l), Azhar Rehman, F.C. Police Station ANF Peshawar (P.W.2), Mushtaq Ahmad, S.-I. Police Station ANF Peshawar (P.W.3), Nazir Alam S.-I. (P.W.4), and Noroz Khan HC Police' Station ANF Peshawar (P. W.5).
4. The prosecution to further prove its case, also exhibited Murasila' as Exh.P.W.4/2, F.I.R. As Exh.P.W.1/1, Application for obtaining FSL opinion as .Exh.P.W.4/4, FSL. Report as Exh.P.W.3/4, Application for obtaining warrant of arrest under section 204 Cr.P.C. As Exh.P.W.3/1, recovery memo as Exh.P.W.4/1, containing the recovered contraband, mobile phone set and cash of Rs,1620, recovery memo Exh.P.W.3/3, containing cash amount of Rs,140,070, mobile phone set and visiting cards, card of arrest of Nasrullah (acquitted accused), Exh.P.W.3/2, card of arrest of accused Shakil Khan Exh.P.W.4/3.
5. The learned counsel for the appellant vehemently contended that the prosecution had failed to prove the charge against the present appellant beyond the shadow of doubt; that the recoveries were not made in accordance with law, hence of no avail; that the inspection of the recovered contraband by the worthy trial Court showed that samples were not obtained from all the slabs; and that the appellant is suffering from Hapititis-C and his life was in peril.
6. The worthy Special Prosecutor controverted the submissions of learned counsel for the appellant and he asserted vehemently that the trial Court with dynamic approach appreciated the entire evidence produced by the prosecution and has rightly convicted the appellant; that the trial Court has correctly relied upon the testimony of the prosecution; that soon after the occurrence, the appellant was arrested in the present case; that no defence evidence is available on the record to believe that the appellant is innocent and is not involved in the present case.
7. Valuable arguments of the learned counsel for the parties heard and the record perused with their able assistance.
8. Before this Court dilates upon the evidence produced by the prosecution and the findings recorded thereon by the trial Court, it would be pertinent to appreciate that CNSA is a special law, which the legislature has enacted mainly to curb the menace of narcotics in our country and thus has provided therein special provisions to achieve the said end.
9. One of the main striking features provided in. CNSA, which is justice is that the onus to prove the guilt of an accused has not been different from the general principles of safe administration of criminal A placed entirely on the prosecution but on the accused to prove his innocence. In this regard, we note section 29 of CNSA, which provides: 'Presumption from possession of illicit Articles.
' In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused had committed an offence under this Act in respect of;
(a) Any narcotics drugs, psychotropic substance or controlled substance.
10. In reading the aforementioned provision of CNSA, it is clear that the legislature has cast a presumption in favour of the prosecution, which has to be rebutted by the accused to prove his innocence. The judicial consensus, which has developed in our jurisdiction over a period of time, has clearly held that prosecution cannot be totally absolved of its obligations and duty of initially establishing a 'prima facie' case of recovery of contraband from the conscious possession of the accused and only after the said initial burden is discharged by the prosecution that the onus would shifts upon the accused to prove his innocence. In this regard, the apex. Court in Muhammad Imran's case (2011 SCM R 1954), has eloquently stated the true purport of section 29 of CNSA, in terms that:-- "It is pertinent to mention here that section 29 of C.N.S.A.,1997 cast a duty upon the Court to presume in trial under the Act that the accused has committed the offence under the Act unless contrary is proved. However, firstly, the prosecution has to establish the fact that the narcotic drugs A were secured from the possession of the accused. If the prosecution proves the recovery of narcotics from physical custody of accused, then the burden of proving that he was not knowingly in possession of the article is upon him. In the instant case, primarily the onus was upon the prosecution to prove that whatsoever was recovered, were narcotic drugs and the same wry recovered from the possession of the appellant. Perusal of the record indicates that the prosecution has failed to prove the initial burden upon it to establish the fact that the narcotic drugs were secured from the possession of appellant."
' Likewise, recently in Ameer Zeb's case (PLD 2012 Supreme Court 380), the principle was reiterated by the august Supreme Court in terms that:-- "The learned Special Prosecutor for the Anti-Narcotics Force has laid great emphasis on the provisions of section 29 of the Control of Narcotic Substances Act, 1997 and it has been maintained by him that the prosecution's allegation that the entire quantity of the substance recovered from an accused person is narcotic substance is to be presumed to be correct and it is for the accused person to prove otherwise. We have, however, refused to subscribe to this submission for the simple reason that in the cases of Kashif Amir v. The State (PLD 2010 SC 1052) and Muhammad Noor and others v. The State (2010 SCMR 927) it has clearly been laid down that the initial onus to prove the offence and recovery of narcotic substance from the accused person is always on the prosecution and once the prosecution has discharged that onus to the satisfaction of the Court is only then that the onus shifts to the accused person to establish falsity of the prosecution's allegation against him. It goes without saying that the initial onus on the prosecution in such cases includes the onus to prove that the entire substance allegedly recovered is in fact narcotic substance and such onus can be discharged by the prosecution only if the samples of the recovered substance sent to the Chemical Examiner for analysis are representative samples of the entire quantity of the recovered substance."
11. Now, keeping the 'ratio decidendi' of the aforementioned judgments as our guiding principle, this Court, on reviewing the evidence produced by the prosecution, finds that the initial burden of establishing a 'prima facie' connection between the appellant and the contraband recovered from him, has been positively carried out. In this regard, the most crucial 'links' of the 'chain', which establish the 'prima facie' connection between the appellant and contraband, are made out.
12, The first 'link' in the 'chain' commences with recovery of huge quantity of narcotics substance including 19 packets 'Charas Pukhta', weighing 19 K.Gs, 3 packets of 'Charas Garda' weighing 3.600 K.Gs and 5 packets of 'Opium' weighing 5 K.Gs, vide recovery memo Exh.P.W.4/1, from the secret cavities made in the rear bumper of the Motor Car, driven by the appellant. This recovery is proved by the direct ocular testimony of the recovery officer Nazir Alam S.I.(P.W.4) and further confirmed by the marginal witness Noroz Khan (P.W.5).
13. The second 'link' in the 'chain' is proved by Muhammad Ayub A.S.-I. (P.W.1), who testifies that the contrabands were received by him from Nazir Alam SI (P.W.4) on the day of the occurrence and the same were placed in the safe custody of the Police Station, 'Mall Khana'.
14. The third 'link' in the 'chain' is established when Muhammad Ayub A.S.-I. (P.W.1) on the next day of the recovery hands over the recovered contraband to Azhar Rehman Constable (P.W.2) for its chemical examination in the FSL Laboratory at Rawalpindi.
15. Finally, the contrabands are stated to have been received at FSL Laboratory Rawalpindi on 1-4- 2010, as is recorded in the FSL report Exh . P. W.3/4.
16. Thus, the manner, mode and place of recovery of the contrabands from the Motor Car driven by the appellant has been proved to the hilt by convincing prosecution evidence. Moreover, what is interesting io note is that the recovered contrabands were promptly sent and received for chemical examination at FSL Rawalpindi on the next day of its recovery and that the result thereof was also positive. In essence the prosecution has proved through reliable positive evidence the recovery of the contraband from the conscious possession of the appellant and all the stages of safe storage and transmission thereof till its receipt at FSL Rawalpindi, which too reported the same to be positively narcotics. It is also noted that all the witnesses are consistent regarding their testimony and corroborate each other on material particulars.
17. In cases tried under CNSA, the initial 'onus' of proof is on the prosecution to set up 'prima facie' case of recovery of the contrabands from the conscious possession of the accused. However, in the present case, the prosecution has been able to cross the said threshold and has in fact proved the recovery from the conscious possession of the appellant beyond the essential minimum requirements. What is also interesting to note that the recovery of the contrabands was made from secret cavities made in the bumper of the Motor Car, which was in exclusive control of the appellant. This fact is compounded by the prosecution proving the safe keeping of the samples of the recovered contraband and prompt transmission thereof to chemical examination and a positive result from FSL.
18. In view of the above convincing evidence produced by the prosecution to establish the case against the appellant, the 'onus' shifted upon him to prove his innocence, as provided under section 29 of C.N.S.A., by rebutting the prosecution evidence. But there is no I evidence in rebuttal brought on record by the appellant.
'19. As far as the submission of the learned counsel for the appellant regarding the samples of the recovered contrabands taken for chemical analysis were not taken from each of the packets, is concerned, this Court finds that the said assertions is belied by the Court observations of the contraband as recorded during the cross-examination of Noroz Khan (P.W.5) in the following words:- "Court observation:-Parcel No,28 has been opened in the Court and it is found that it contains 15 packets of charas pukhta wrapped in yellow wrappers each packet is cut from the one corner and 4 packets are wrapped in greenish cum yellow wrappers. Each packet is consist of thin sub slabs which are about 10/11 numbers."
' The aforementioned Court observation clearly proves that samples were taken from the corner of each packet. There is no Court observation that any packet containing the recovered contraband has remained uncut, so as to suggest that samples have not been taken therefrom.
20. Accordingly, for what has been discussed above, this Criminal Appeal, being devoid of any merits is hereby dismissed.
' However, the appellant is suffering from Hepatitis-C, therefore, the Jail authorities as well as Medical Officer, Jail are directed to take his extra-ordinary care and, if need be, the appellant be periodically shifted to the hospital for medical treatment.