MUHAMMAD IQBAL MAHAR, J.---The appellant Ghulam Nasar Khan has challenged his conviction under section 9(c) Control of Narcotic Substances Act, 1997 and sentence of life imprisonment with fine of Rs,100,000/- in default to suffer SI for three months, recorded by learned Special Judge (Narcotics) Shaheed Benazirabad vide Judgment dated 16.2.2012 in special case No,49/2008 bearing crime No,03/2008 of Police Station Excise Nawabshah Town.
2. Tersely the prosecution case is that on 13.03.2008 complainant Excise Inspector Muhammad Paryal of Excise Police Station Nawabshah Town along with subordinate staff left for detecting Excise crime and reached at Excise Check post National Highway Sakrand, at 5,00 a.m. They stopped one Bedford Truck No,K-8564 Peshawar, along with two persons including driver sitting therein in a suspected position. Driver disclosed his name as Ghulam Nasar Khan while other was Maazullah. From search of secret compartments of the truck, complainant recovered 85 packets of charas, which became 85 Kilograms. 100 grams charas from each packet was taken and separately sealed for chemical examination while remaining charas was sealed separately.
Complainant also recovered copies of NICs and some cash amount from both the accused and registration book of the truck from its switch board which was in the name of Dildar Khan son of Hawaldar Khan. Complainant then took the accused and case property to Police Station and registered FIR on same day at 10.00 a.m.
3. Charge under section 9(c) of Control of Narcotic Substances Act, 1997 was framed against the appellant and co- accused Maazullah at Ex.3 to which they pleaded not guilty and claimed their trial.
4. In order to prove its case, prosecution examined P.W.1 Complainant Excise Inspector Muhammad Paryal at Ex 11, he produced mashirnama of arrest and recovery at Ex.11/A, FIR at Ex.11/B, attested copy of roznamcha entries dated 12.03.2008 and 13.03.2008 at Ex.11/C and 11/D, chemical report at Ex.11/E, delivery of sealed sample parcels of charas at Ex.11/F, P.W.2 E.D Abdul Ghani mashir at Ex.12 and then closed its side.
5. Statement of appellant under section 342, Cr.P.C. Was recorded, wherein they denied the prosecution allegations and pleaded their innocence. Neither appellant examined himself on oath nor led any evidence in his defence. However, co-accused Maazullah examined himself on oath under section 340, Cr.P.C. At Ex.16 and examined D.W.2 Samad Khan at Ex.17, who produced to photostat copy of his affidavit at Ex. 17/A and then closed his side at Ex.18.
6. The learned trial court after hearing the parties and appraising the evidence, convicted the appellant as mentioned above and acquitted co-accused Maazullah through impugned Judgment.
7. Learned counsel for the appellant argued that the appellant is innocent and has falsely been involved in this case by Excise police and alleged charas has been foisted upon him. He further argued that as per prosecution case on the day of incident complainant left Excise Police station along with 9 Excise constables and recovered charas from the Truck in their presence but he recorded 161, Cr.P.C. Statements of only two Excise constables; the alleged recovery was effected at main National Highway road which remains busy round O'clock but no private person was associated in recovery proceedings. Learned counsel next contended that the charas was allegedly recovered from secret cavity of the truck and the appellant was not in the knowledge of the charas or the secret cavity of the truck. He added that nothing was recovered from the exclusive possession of the appellant hence he would not be responsible for charas allegedly recovered from the Truck. Lastly he contended that since co-accused Maazullah who was arrested along with appellant from same truck, has been acquitted by learned trial court, hence the appellant is also entitled for acquittal. In support of his arguments, learned counsel or the appellant has relied upon the cases of Amjad Ali v. The State (2012 SCM R 577) and Mst. Jameela and another v. The State (PLD 2012 SC 369).
8. Learned Deputy Prosecutor General while refuting the contentions raised by learned counsel for the appellant has argued that huge quantity of charas viz 85 Kilograms was recovered from the truck which was being driven by the appellant and such huge quantity of charas being expensive could not be foisted upon the appellant without enmity/ motive which the appellant has failed to prove during the trial. He further argued that complainant and mashir have fully supported the prosecution case and gave consistent evidence on material points which proved recovery of charas from the possession of the appellant. Learned Deputy Prosecutor General Sindh submitted that case of co-accused Maazullah who has been acquitted by the trial court, is on different footings as he was neither co-driver nor cleaner but was sitting with the appellant. While relying upon the case law reported in PLD 2006 SC 61 and 2008 SCM R 1254, learned Deputy Prosecutor General Sindh has reiterated that the prosecution has been able to prove charge against the appellant, therefore, impugned Judgment does not call for any interference by this court. He prayed for dismissal of the instant appeal.
10. We have given thoughtful consideration to the submissions made by learned counsel for the appellant, learned DPG for the State and have minutely examined the record.
11. The prosecution has examined complainant El Muhammad Paryal at Ex.11 and mashir ED Abdul Ghani at Ex.12. Both the witnesses deposed in same line and supported the prosecution case regarding recovery of 85 Kilograms of charas from the Truck driven by the appellant. Evidence of both the witnesses is consistent on material points. Despite lengthy cross-examination by leaned Defence counsel, nothing could be achieved in favour of the appellant. No doubt the complainant made ED Abdul Ghani and EC Mumtaz Ali as mashirs but this is not fatal to the prosecution case for the reason that the time of recovery was 5.00 a.m. And such early time the availability of the private persons at National Highway could not be expected. Even otherwise section 25 of Control of Narcotic Substances Act, 1997 has excluded applicability of section 103, Cr.P.C. In Narcotics cases, hence non association of the private mashies at the time of recovery of charas from the Truck driven by the appellant would neither cause any dent to the prosecution case nor vitiate the proceedings.
12. Next contention of learned counsel for the appellant is that the alleged charas was recovered from secret cavity of Truck and the appellant was not in knowledge of said charas concealed in the secret cavity, therefore, responsibility lies upon the owner of the Truck and not upon the appellant.
This point has been answered in the case of Kashif Amir v. The State (PLD 2010 SC 1052) as referred by learned trial court in the impugned Judgment, wherein the Honourable Supreme Court has held that:-- "S. 9(c)- Transportation of narcotics---Driver of the vehicle to be responsible--Person 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 5.9(b) of the Control of Narcotic Substances Act, 1997, that the possession should be an exclusive one and can be joined one with two or more persons. 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.
' It has also been held by the Honourable Supreme Court in the case of Faiz Muhammad and another v. The State (2009 SCM R 1403) as under:-- " Evidence of prosecution witnesses about the recovery of Charas weighing 126 Kgs, and taking of sample from each of the rod and slab could not be disputed by the defence and report of Chemical Examiner also supported the case of the prosecution Driver having the charge of vehicle for long journey was supposed to have knowledge with regard to contents and articles being transported in it.
13. In the light of above quoted case law, the appellant being driver of the Truck was incharge of the same was in knowledge of the contents and articles lying therein as such he is responsible for transportation of Charas.
14. So far the acquittal of co-accused Maazullah is concerned, neither he was owner nor co-driver and nor cleaner of the Truck but only he was sitting with the appellant, hence his responsibility was not at par with the appellant. The complainant in his cross-examination admitted that during investigation co-accused Maazullah was found innocent and was released under section 169, Cr.P.C. Thus the acquittal of said accused would not be helpful to the appellant.
15. The facts of the case of Amjad Ali (supra) relied upon by learned counsel for the appellant are totally different to that of instant case while in the case of Muhammad Noor (supra), it was held by the Honourable Supreme Court that said accused Muhammad Noor being driver of the vehicle was responsible for transportation of narcotics therefore, his appeal was dismissed, thus this case supports the prosecution case.
16. In the light of the above discussion and case law referred above, we are of the firm view that the prosecution has proved its case against the appellant beyond any shadow of doubt and the impugned Judgment does not call for any interference and is maintained. Consequently the instant Appeal No,D-81/2012 being devoid of merits stands dismissed.
' The above are the reasons of our short order dated 25.11.2015 whereby the appeal was allowed.