' RIAZAT ALI SAHAR, J.---Through instant appeal, appellants Alamgir and Khan Bahadur have assailed their conviction and sentence vide impugned judgment dated 26-5-2010, passed by the learned Sessions/Special Judge (CNS), Ghotki, whereby they were convicted under section 9(c) of CNS' Act, 1997 and sentenced to suffer life imprisonment and to pay fine of Rs, 200,000 each and in case of default to suffer SI for one year. They were extended benefit of section 382-B, Cr.P.C.
2. Briefly stated, the facts of the prosecution case are that on 5-7-2009, the police party headed by complainant Excise Inspector Rehmat Ali Khushk of Excise PIO Camp at Ubauro left Police Station, vide Daily Diary Entry No, 01 at 1.30 pm, for detecting the narcotics. During patrolling, when they reached at Excise Post near Kamoon Shaheed, Taluka Ubauro, district Ghotki, they noticed a Truck coming from Punjab side, it was got stopped and two persons including driver (present appellants) were got down from the truck. On search of the truck, the complainant recovered 160 patties of Charas, weighing 160 KGs in presence of mashirs, namely, Ghulam Murtaza Khaskheli and E.C.
Muhammad Daud Soomro. Out of which, 50 grams Charas was separated from each Patti, while remaining property was sealed separately. The appellants were brought at PIO Excise Camp at Ubauro, where FIR was lodged.
3. That trial court framed the charge against appellants with regard to commission of offence punishable under section 9(c) of the Control of Narcotic Substances, Act, 1997, to which they pleaded not guilty and claimed to be tried. In support of its case, prosecution examined complainant P.W-1 Rehmat Ali Khushk at Exh.9, who produced memo of arrest and recovery, copy of FIR, report of chemical examiner and attested Photostat copy of roznamcha entries, registration book of truck and CNIC of accused Bahadur Khan at Exh. 9-A to 9-F respectively, and P.W-2 E.C.
Ghulam Murtaza at Exh.10 being mashir, whereafter side of prosecution was closed vide statement at Exh.11.
4. Statements of appellants under section 342, Cr.P.C. Were recorded by the trial Court, wherein they denied the prosecution allegations. However, neither they examined themselves on oath nor led any evidence in their defence. Appellant Alamgir produced simply travelling ticket of Adnan coach and medical prescription at Exh.12/A to D respectively. Similarly, appellant Khan Bahadur also produced traveling ticket at Exh.13/A.
5. It was, inter alia, contended by learned counsel for the appellants that there are material contradictions in the evidence of prosecution witnesses. It was further contended that there is delay in lodging the FIR which has not been plausibly explained. It was further submitted that the recovery was not effected from physical possession of the appellants. Next submission was that driving license in the name of appellant Alamgir was not recovered from the Truck. He further contended that appellant Alamgir is weak by eyesight and being a blind and old man, he cannot walk without help of other person and he cannot drive the Truck for long journey. He further contended that appellant Alamgir was referred to hospital for examination, treatment and report where, he underwent for eye surgery and got operated his eye at Naushahra. He further contended that the witnesses are from the Excise Department and, therefore, they are interested and their testimony cannot be relied upon and that, thus, the trial Court was unjustified in believing the said testimony. It has further been submitted that the recovered property has been foisted upon the appellants, actually no such recovery has been effected from them but the fact is that the appellants were arrested on 4-7-2009 at about 1000 hours, when they were coming from Naushahra to Karachi for treatment of eyesight and such medical record was produced before trial court. He further contended that Excise officials robbed Rs, 50,000 from appellant Alamgir which he had kept for treatment expenses and got involved in this case after releasing real culprits from whom Charas was recovered. Lastly, it was submitted that defence plea was not considered by the trial court. The case is highly doubtful and benefit of doubt may be extended to the appellants. In support of his contentions, learned counsel relied upon the following case-law:--
(i) 2009 SCM R 579.
(ii) PLD 1997 SC 408.
(iii) 2009 PCr.LJ 480.
(iv) 2009 YLR 1307.
(v) 2005 SBLR 230(sic).
6. On the other hand, learned APG for the State prayed for dismissal of appeal by arguing that no any or enmity has been alleged against the Excise officials to foist such a huge quantity of contraband material upon the appellants and that they are as good witnesses as the others and the evidence of the witnesses depicts that no suggestion as to the defence plea has been put to them in their cross-examination and that, therefore, the trial Court was within four corners of law in believing the testimony of the officials and basing the same for conviction and awarding punishment accordingly. He further submitted that appellant Khan Bahadur had accompanied Alamgir in the Truck, loaded with the contraband material, therefore, he is presumed to be in knowledge of the recovered contraband material. He relied upon Muhammad Sadiq v. The State, 2005 SCM R 1689 and Ikram Hussain v. The State, 2005 SCM R 1487.
7. After hearing learned counsel, we have scanned the entire evidence brought on record carefully.
8. It is evident from the record that the trial Court recorded statements of complainant Excise Inspector Rehmat Ali Khushk and E.C. Ghulam Murtaza being Mashir, all of them have unanimously stated that on 6-7-2009, they got stopped a Truck coming form Punjab side and when it was searched, they recovered 160 Patties (160 KGs) Charas from the secret cavity of the Truck.
Ultimately, the Truck driver namely Alamgir and another person sitting with him namely Khan Bahadur were apprehended at the spot. Out of each Patti of one Kgs, 50 grams were separated for chemical analysis. Such account of the Evidence has gone unshaken, notwithstanding the fact that the witnesses were subjected to a lengthy cross-examination. Entries appear to have been produced to substantiate the movement of the officials and report of chemical analyzer has also been produced, which establishes that the parcel, sent to Laboratory, was Charas.
9. Contention as to the possession of the recovered contraband material not being exclusive, it may be observed that it is bereft of substance for the reason that physical possession and/or constructive possession of the narcotic material make the possessor liable to be punished. It is not necessary that the possession should be physical. In the present case, a Truck, driven by one of the appellants, has been found to be loaded with contraband material. Therefore, possession thereof with the appellants cannot be denied, who had been controlling the Truck.
10. Submission that the driving license was not recovered from the possession of appellant Alamgir as such he cannot be termed as driver of the Truck, is without any force inasmuch as it has been stated in the FIR and has been seconded by the witnesses that appellant Alamgir was driving the vehicle. Driving is an art and it is not coupled with the license, which is merely a legal authority to do that particular act. Thus, it cannot be said that one having no driving license cannot drive a vehicle. Contention that none of the appellants is the owner of the vehicle is not tenable, in that, the appellants were found controlling the vehicle, which was loaded with contraband material. It is not necessary that the driver should also be the owner of the vehicle or that only owner of the vehicle is liable for holding the contraband material and the driver cannot be saddled with any liability, rather the driver, who is in actual possession of the vehicle and the material, is responsible; the owner may also be guilty in some cases but not necessarily in every case.
11. As far as the submission with regard to the witnesses being of Excise Department, it is suffice to state that time and again the superior Courts have held that the officials are also good witnesses like others and that their evidence cannot be brushed aside merely for the reason of their being officials; however, they can be disbelieved if they are shown to be inimical and/or interested. In Afsar Khan v. The State, 2008 SCM R 1219, it was observed as under:-- "4. ......No animosity of the prosecution was shown to exist for involving the petitioner falsely in a serious case of a narcotics. Even the recovery of a huge quantity of Charas was not denied by him. The High Court had given sound reasons for distinguishing the case of the co-accused Mst.
Zohra for acquitting her of the charge. The report of the Chemical Examiner was also positive. The High Court as well as the trial Court have properly appraised the evidence in coming to a definite conclusion of the guilt of the petitioner to which no exception can be taken. This is not a fit case for grant of leave to appeal"
12. In the present case, as observed earlier, no animosity appears to have been alleged against the witnesses, therefore, in absence of such motive, this Court does not find any reason to discard the testimony of the officials.
13. As to the plea of the appellants that on 4-7-2009 they were coming from Naushera for Karachi through Adnan Coach and they were arrested from Check Post Kamoon Shaheed by the Excise officials while checking the said Coach and deprived them of Rs, 50,000 each and on their resistance, Excise officials arrested them and brought at police station where charas already recovered from unknown persons by Excise officials was planted upon them after letting off the real culprits and substituted the appellants, it may be observed that such plea is unsupported by any evidence inasmuch as nothing has been adduced to substantiate it. In Muhammad Sadiq's case reported in 2005 SCM R 1689, allegations were denied by the accused and the august Supreme Court was pleased to observe as follows:-- "3. ....... It was urged by the learned counsel for the petitioner that the petitioner, who was a school teacher, had been falsely implicated in the case by the police. Unfortunately, nothing was brought on record to substantiate the false implication of the petitioner by the police. Noillegality or infirmity in the impugned judgment has been pointed out by the learned counsel warranting interference by this Court, therefore, this petition being devoid of merit is dismissed and leave to appeal declined accordingly."
14. In Ikram Hussain's case (supra), honourable Supreme Court pleased to observe as under:-- "5. It may be noted that in terms of section 29(d) of the Control of Narcotic Substances Act, 1997 unless otherwise proved, the presumption would be that the person who is found in possession of the narcotics has committed an offence. We have asked the learned counsel to explain as to why he had not discharged the burden to show that he was not in the possession of the narcotics i,e, Charas, his reply was that report Exh. D.B. Is the document which indicates that the petitioner immediately informed to the concerned Authorities about the event which took place prior to taking into possession the narcotics but this report has not been considered. We are afraid, this argument is not available to him in view of the discussion of the High Court in the paragraph which has been reproduced hereinabove."
15. The stance of the appellants is, therefore, bereft of any reason, particularly in view of the fact that the evidence of prosecution substantiates the recovery.
16. In the case of Kashif Amir v. State reported as PLD 2010 Supreme Court 1052, the Honourable Supreme Court has observed as under:-- "3. .... It is well settled principle that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics, having knowledge of the same as no condition or qualification has been made in section 9(b) of CNSA that the possession should be an exclusive one and can be joint one with two or more persons. Further, when a person is driving the vehicle, he is Incharge of the same and it would be under his control and possession, hence, whatever articles lying in it would be under his control and possession. Reference in this behalf may be made to the case of Muhammad Noor v. The State (2010 SCMR 927). Similarly, in the case of Nadir Khan v. State (1988 SCMR 1899) this court has observed that knowledge and awareness would be attributed to the Incharge of the vehicle. Another aspect of the case is that once the prosecution has prima fade established its case then under section 29 of the CNSA burden shifts upon the accused to prove contrary to the plea of the prosecution. Reliance in this behalf may be made to the case of Ismaeel v. The State (2010 SCMR 27) wherein this court, while relying upon the cases of Muhammad Arshad v. The State (2007 SCMR 1378) and Mst. Taj Bibi v. The State (2007 SCMR 1591) has held that the Chemical Examiner's reports regarding Charas and Opium were sufficient to prove that the substance recovered from the accused was Charas which can be used to cause intoxication; the prosecution had discharged its initial onus while proving that substance was recovered from him whereas the petitioner had failed to discharge its burden in terms of section 29(d) of CNSA. In this behalf reference can also be made to the case of Ikram Hussain v. The State (2005 SCMR 1487) wherein it has been held that in terms of section. 29(d) of the Control of Narcotic Substances Act, 1997 unless otherwise proved, the presumption would be that the person who is found in possession of the narcotics has committed an offence."
In the instant case, according to prosecution version, both the appellants were coming in a Truck in question. Though, the appellants have simply denied to be owners/drivers of the Truck, but in their statements recorded under section 342, Cr.P.C, they have never disowned their association with each other and have taken the same defence plea that on 4-7-2009 they were apprehended by the complainant party from Adnan Coach and cash of Rs, 100,000 were recovered from them by the Excise officials and on their resistance, they were booked in the instant case by foisting charas already recovered from real culprits.
17. Therefore, this Court is not inclined to give weight to such assertion primarily for the reason that the appellants are to be presumed having knowledge of the trafficking of the contraband material/ narcotics, which has proved to have been recovered from the Truck, the appellants were available on the truck and that none of the appellants has been able to justify that he had no knowledge of the contraband material.
18. For the above stated peculiar reasons, we have no hesitation to hold that the prosecution has proved its case against the appellants beyond any shadow of doubt as the trial court has appreciated the evidence in accordance with the settled principle of law. Judgment of trial Court dated 26-5-2010 is based upon sound reasons and requires no interference and the same is maintained. Consequently, the instant Jail Appeal is found without merit and same is dismissed.