' RIAZAT ALI SAHAR, J.---Present Jail Appeal calls in question the conviction and sentence (RI for life for the establishment of charge of Section 9(c), Control of Narcotic Substances Act, 1997), inflicted upon the appellant by learned Special Court (CNS), Sukkur by means of its Judgment, passed on 29-6-2011. He was extended benefit of section 382-B, Cr.P.C.
2. Succinctly, the facts of the prosecution case are that on 23-8-2006, the police party headed by complainant Excise Inspector Syed Naveed Abbss Shah of Excise Police Station, Sukkur left Police Station, vide Daily Diary Entry No, 23 at 6.30 am for patrolling and detecting the narcotics. During patrolling, when they reached near Garang Wah bridge on Sukkur-Shikarpur side, they noticed a truck coming from Shikarpur side, it was got stopped and the driver was apprehended. On enquiry, driver of truck disclosed his name as Muhammad Umar. On search of the truck, the complainant recovered 520 KGs Charas (13 maunds) from the secret cavities of truck in presence of Police mashirs. Thereafter, each bundle of 20 KGs charas was put in 26 blue coloured sacks and out of each sack, a bundle of one KG charas was taken out as sample and sealed the 26 packets, total weighing 26 KGs, while remaining property was sealed separately. The appellant was brought at excise police station, where FIR was lodged.
3. That trial court framed the charge against appellant under section 9(c) 'of the Control of Narcotic Substances, Act, 1997. The appellant pleaded 'not guilty' to the charge and claimed to be tried. In support of the case, prosecution examined P.W.1 complainant Naveed Abbas Shah at Exh.4, who produced copy of entry, memo of arrest and recovery, copy of FIR and report of Chemical Examiner at Exh. 4-A to 4-D respectively; P.W-2 E.D Hubdar Ali at Exh.5 being mashir, E.C. Shahid Hussain at Exh.9 and P.W-4 Inspector Gulzar Ahmed at Exh.10, where after side of prosecution was closed.
4. Statement of appellant under section 342, Cr.P.C. Was recorded by the trial Court, wherein he denied the prosecution allegations. However, neither he examined himself on oath nor led any evidence in his defence.
5. It was, inter alia, contended by learned counsel for the appellant that there are material contradictions in the evidence of prosecution witnesses; that the recovery was not effected from physical possession of the appellant; that driving license in the name of appellant was not recovered from the Truck; that witnesses are from the Excise Department and, therefore, they are interested and their testimony cannot be relied upon; that the trial Court was unjustified in believing the said testimony; that the alleged recovery of charas has been foisted upon the appellant, actually no such recovery has been effected from him. Lastly, it was submitted that defence plea was not considered by the trial court, therefore, case is highly doubtful and benefit of doubt may be extended to the appellant. In support of his contentions learned counsel relied upon the case of Asmatullah and 2 others v. The State (2010 PCr.LJ 1560).
6. On the other hand, learned APG for the State prayed for dismissal of appeal by arguing that no any enmity has been alleged against, the Excise officials to foist such a huge quantity of contraband material upon the appellant and that they are as good witnesses as the others are; that the evidence of the witnesses depicts that no suggestion as to the defence plea has been put to them in their cross-examination, 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 was driver/owner of 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 carefully scanned the entire evidence brought on record.
8. It is evident from the record that the trial Court recorded statements of prosecution witnesses, who in their depositions have categorically deposed that on 23-8-2006 at 0700 hours, they apprehended the appellant from Garang Wah bridge Shikarpur Road, Sukkur while a Truck being driven by him and from its secret cavities, police recovered 520 slabs of Charas, total weighing 520 KGs. 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 him, was containing Charas.
9. Contention as to the possession of the recovered contraband material not being exclusive, it may be observed as 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 the appellant, has been found to be loaded with contraband material: Therefore, possession thereof with the appellant cannot be denied, who had been controlling the Truck.
10. Submission that the driving license was not recovered from the possession of appellant 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 corroborated by the witnesses that appellant 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 the appellant is not the owner of vehicle, is not tenable, in that, the appellant was 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 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 police 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 and, therefore, in absence of such motive, this Court does not find any reason to discard the testimony of the officials.
13. This view of the Supreme Court of Pakistan favors the accused and it is settled principle of administration of criminal justice that the view, when there are two contrary views, that favors the accused, has to be followed. Contention regarding the delay is, therefore, repelled.
14. So far defence plea of the appellant that neither he know driving nor any license was secured from him; there are no secret cavities in the said Truck and no charas was recovered from it; the chemical report was also not in respect of 26 KGs of charas; he was apprehended near Garang Wah, a day before registration of this case from a passenger-van while he was travelling from Jaccobabad to Sukkur and due to altercation with Excise officials, he was roped in this case, is concerned, it may be observed that such plea is unsupported by any evidence inasmuch as nothing has been adduced in substantiation thereof. 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. No illegality 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,"
15. 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."
16. The stance, therefore, is bereft of force and cannot be given weight to as such, particularly in view of the fact that the evidence of prosecution substantiates the recovery.
17. 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 SCM 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 facie 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 SCAB? 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."
18. Therefore, this Court is not inclined to give weight to such assertion primarily for the reason that the appellant is to be presumed to be having knowledge of the trafficking of the material, which has been proved to have been recovered from the Truck, where the appellant was available and he has not been able to justify that he was not in knowledge of the contraband material.
19. For the above stated peculiar reasons, we are of the considered view that the prosecution has proved its case against the appellant 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 29-6-2011 is based upon sound reasons and requires no interference and same is maintained. Consequently, the instant Jail Appeal is found without merit and same is dismissed.