' NAIMATULLAH PHULPOTO, J.---Zubair Khan appellant was tried by learned Sessions Judge/Special Court for (CNS) Naushahro Feroze in Special Case No,10 of 2010 arising out of Crime No,04/2010 Excise Police Station, Kandiaro registered for offences under Section 9(c) CNS Act, 1997. The appellant was found guilty. By judgment dated 02.04.2011, he was convicted under section 9(c)
Control of Narcotic Substances Act 1997 and sentenced to imprisonment for life and to pay the fine of Rs,500,000/- in case of default in payment of fine, he was ordered to suffer 03 years' R.I. The benefit of section 382-B, Cr.P.C. Was extended to him. The appellant has challenged the impugned judgment through instant appeal.
2. The brief facts of the prosecution case are that on 21.4.2010 Excise Inspector Bisharat Hussain left Excise Police Station Kandiaro vide roznamcha entry No,1 at 1340 hours along with his subordinate staff namely ED Abdul Ghani, ECs Lal Bux, Abdul Hakeem, Saeed Khan, Abdul Rasheed, Khadim Hussain and Azam Khan for checking the vehicles, Excise party held checking at Rasool Abad Excise Check Post. It is stated that Truck appeared on the road from Sukkur side, the Excise official suspected it and, gave signal to driver of vehicle to stop it but the driver accelerated its speed.
Excise Inspector along with his staff followed the truck in private vehicle and truck was stopped near Kotri Kabir on the link road its number was noted as E-5318. The truck driver got down and on enquiry of Excise Inspector, he disclosed his name as Zubair Khan son of Sawab Khan Lohar Pathan resident of Taxilla District Rawalpindi. The truck was loaded with Patatos bags. Excise officials found him in suspicious manner, conducted personal search of the driver in presence of ED Abdul Ghani and EC Abdul Hakeem. From front pocket of his shirt, photo copy of CNIC and cash Rs,1,700/- were recovered. Copy of bilty No,1992 dated 19.4.2010 issued by Data Goods Transport Company Sahiwal was also recovered, showing that 100 Patatos bags were sent by Haji Muneer Ahmed to one Jamshed, New Subzi Mandi Karachi. The search of truck was conducted and from the back side of cabine of the driver, there was a secret cavity in which 80 packets of the Charas were found. Excise Inspector weighed the Charas in presence of the above named mashirs. Each packet contained 1- KG of Charas, total weight of Charas was 80-KGs. From each packet 100 grams of Charas were separated for chemical analysis. Thereafter, each sample was separately sealed. Mashirnama. Of arrest of accused and recovery was prepared by Excise Inspector in presence of mashirs ED Abdul Ghani and EC Abdul Hakeem and separately sealed in two plastic bags. Accused and case property were brought to the Excise Police Station where Inspector lodged FIR against accused on behalf of the State vide Crime No,04/2010 under section 9(c) of the CNS Act, 1997, on the next day, samples of the Charas were sent to the Chemical Examiner Rohri for analysis. Excise Inspector conducted usual investigation, collected positive chemical report on the conclusion of the investigation, he submitted the Challan before the learned Sessions Judge Special Judge/Special Court for (CNS) Naushahro Feroze under section 9(c) Control of Narcotic Substances Act 1997.
3. Charge was framed against the accused Zubair Khan under section 9(c) of CNS Act 1997 at Ex.08, to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined PW-1, Excise Inspector Bisharat Hussain at Exh.10 and he has produced the mashirnama of arrest and recovery at Exh.11, FIR at Exh.12, Roznamcha entries at Exhs.13 and 14, Chemical Analyzer's report at Exh.15. Thereafter, prosecution side was closed at Exh.18.
5. Statement of accused Zubair Khan was recorded under section 342, Cr.P.C. At Exh.19 in which he denied the allegations of the prosecution. Regarding positive chemical report, accused replied that he had no knowledge regarding positive report and it has been managed by the Excise officials. He has further stated that PWs have deposed against him as they are Excise officials. Accused did not examine any witness in his defence. In a question that what he has to say? Accused claimed innocence and raised plea that he used to earn in Karachi, he had no sufficient means as such he had taken lift from Sukkur in truck but Excise officials caught him hold from the truck and released real. Culprits while accepting the illegal gratification and involved him in this case falsely.
6. Learned trial Court after hearing the learned counsel for the accused and Prosecutor on the assessm ent of evidence convicted and sentenced accused as stated above.
7. Mr. Abdul Baqi Jan Kaker learned counsel for the appellant contended that according to the prosecution case, Charas was recovered from truck it was thickly populated area but no independent person of the locality was made as mashir in this case. He has further contended that Excise officials were interested witnesses. He next argued that evidence of independent witnesses was required for recording the conviction but the same is lacking in the case. Learned counsel for the appellant further argued that investigation was defective in this case as Excise Inspector could not arrest owner of the truck. It is argued that it is unbelievable that accused was driving the truck from long distance without driving licence. It is argued that the attested copies of the departure and arrival entries have been produced by I.O. Before the trial Court, same are not reliable. Learned advocate for appellant argued that I.O. Has failed to produce letter by which he had sent samples to the Chemical Examiner, such omissions would be fatal to the prosecution case. It is also argued that there are material contradictions in the evidence of the complainant/I.O. And mashir on material points. Lastly, he has argued that prosecution case is highly doubtful. In support of his contentions, he has relied upon cases of Naveed Asif v. State (PLD 1988 SC 99), Nadeem Ahmed Khan and others v. The State (2007 PCr.LJ 233), Muhammad Riaz and another v. The State (PLD 2003 Lahore 290), lqbal Khan v. The State (2012 PCr.LJ 1524), Ghulam Siddique v. The State (2005 YLR 605), Muhammad Noor and others v. The State (2010 SCMR 927), Ikramullah and others v. The State (2015 SCMR 1002), Tariq Pervez v. State (1995 SCMR 1345) and Zahoor Ahmed Awan and another v.
The State (1997 SCMR 543).
8. Mr. Saleem Akhter Buriro learned Addl.PG argued that the appellant was driver of truck. 80-KGs Charas was recovered from the secret cavity of truck. The appellant being driver of the truck was responsible for carrying Charas in his vehicle. He further argued that Excise officials are as good witnesses as other public witnesses. Learned Addl. PG further argued that the chemical report is positive in this case. Lastly, he argued that it was impossible for the Excise officials to foist such a huge quantity of Charas upon the appellant without any enmity. In support of his contentions, he has relied upon cases of Ghulam Qadir v. The State (PLD 2006 SC 61), Kashif Amir v. The State (PLD 2010 SC 1052) and Muhammad Khan v. The State (2008 SCMR 1616).
9. We have carefully heard learned counsel for the appellant, learned Addl.P.G and scanned the evidence available on record.
' PW-1 Complainant/I0 Bisharat Hussain Excise Inspector has deposed that on 21.4.2010 he was posted as Incharge Excise Circle Kandiaro. He left Excise Police Station along with his subordinate staff ED Abdul Ghani, ECs Abdul Hakeem, Lal Bux, Saeed Khan, Abdul Rasheed, Khadim Hussain and Azam Khan vide entry No,1 at 1340 hours for checking vehicles in his private vehicle when they reached at Rasool Abad Excise Check Post, started checking, they saw a truck coming from Sukkur side. Driver was given signal to stop but -it was not stopped. Thereafter, Excise Inspector along with his other staff followed truck in private Car. Truck was stopped near Kotri Kabeer. Its registration number was E-5318, on enquiry the truck driver disclosed his name Zubair Khan son of Sawab Khan Lohar Pathan. The truck was loaded with Patato bags. Excise Inspector conducted personal search of the driver of truck in presence of mashirs, during search from his possession photo copy of CNIC and cash of Rs,1,700/- were recovered and so also a copy of the bilty No,1992 dated 19.4.2010.
Search of the truck was also conducted in presence of mashirs and from its secret cavity behind driver Cabinet 80 slabs of Charas were recovered, which were wrapped in a polythine bag. The Excise Inspector weighed each bag, it contained 1-KG total Charas was 80-KGs. Excise Inspector separated 100 grams of Charas from each slab as sample for sending to the Chemical Examiner for analyses and remaining substance and samples were sealed separately and put in two Plastic bags, 40 K.G in each bag, in presence of mashirs. ED Abdul Ghani and EC Abdul Hakeem, prepared mashirnama of arrest of accused and recovery of the Charas. Thereafter, Excise Inspector brought the accused and case property to Excise Police Station where he lodged FIR against the accused on behalf of State as stated. He recorded 161, Cr.P.C. Statements of the PWs and produced mashirnama of arrest and recovery, arrival and departure entries and chemical examiner's report before trial Court. The complainant/I.O. Was cross-examined at length by the defence counsel. I.O.
Denied the suggestion that he had released actual culprit/ driver of the vehicle after accepting the illegal gratification from him. Complainant/I.O. Has also denied the suggestion that present accused had taken lift in the said truck from Sukkur for travelling to Karachi. I.O. Also denied the suggestion that accused has been involved falsely in this case.
' PW 2 ED Abdul Ghani has deposed that on 21.4.2010 he along with Excise Inspector Bisharat and other staff had left Excise Police Station Kandiaro for checking of vehicles in private vehicle of the Inspector Bisharat. When Excise officials reached at Rasool Abad they started checking of the vehicles. They saw a truck coming from Sukkur side, signal was given to driver to stop it but driver accelerated it. Thereafter, Excise officials followed the truck and it was stopped at Link Road leading from Kotri Kabir to Link Road Mehrabpur. The truck was bearing Registration No,E-5318 and accused was driving the same. The Driver got down, he disclosed his name as Zubair son of Sawab Gul Lohar Pathan resident of Taxilla District Rawalpindi. He stated that I.O. Conducted personal search of accused, during search from his possession photo copy of CNIC and cash of Rs,1,700/- were recovered and so also a copy of the bilty. He stated that the Vehicle was loaded with 100 bags of Patatos and search of the truck was conducted in his presence and from its secret cavity 80 KGs of Charas were recovered and weight of each slab was 1-KG and whole quantity was 80 KGs. He has stated that I.O. Separated 100 grams from each bag as sample for sending to the Chemical Examiner and remaining substance and sample were separately sealed and put in two plastic bags. Excise Inspector recovered one registration book from truck which showed that truck was in the name of one Abdul Latif. Excise Inspector made him mashir. Thereafter, accused and case property were brought to Excise Police Station where Excise Inspector, lodged FIR on behalf of State against accused. He was also cross-examined at length and he has admitted that Charas was recovered from the truck at thickly populated area but stated that no person had appeared near to the Excise officials, at the time of recovery though private person were available. Mashir has replied that driving license was not recovered from the possession of accused. He has denied the allegation that actual culprit was released by the Excise Inspector by taking illegal gratification from him. He denied the allegation that Charas has been foisted upon the accused.
10. From the perusal of the evidence of the Excise Inspector and mashir it is proved that appellant Zubair Khan was driving the truck at the time of his arrest and 80 KGs Charas was recovered from the secret cavity of the truck. Knowledge and awareness of Charas would be attributed to the appellant as he was incharge of the truck. No other person was sitting in the truck at the time of his arrest. Appellant being driver could not be absolved from responsibility regarding the narcotics being carried in his vehicle. Accused in his statement under section 342, Cr.P.C. Has also admitted the prosecution case to the extent that he was sitting in the truck at relevant time but claimed that he had taken lift in the truck for going from Sukkur to Karachi. Honourable Supreme Court in the case of Ghulam Qadir v. State (PLD 2006 SC 61) has held as follows:-- "6. Keeping in view the pronouncement made in the reported judgments of this Court we are of the opinion that the driver cannot be absolved from the responsibility if the contraband items are being transported openly on the roof of the vehicle, being driven by him."
11. It is well settled principle that a person who is on driving seat of the Vehicle shall be held responsible for transportation of narcotics as held by the Honourable Supreme Court in the case of Kashif Anwar v. State (PLD 2010 SC 1052). The relevant portion is reproduced as under:-- "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."
12. The contention of the learned Advocate for the appellant that private persons have not been associated as mashirs is without legal substance for the reasons that once the prosecution has apparently, established its case then under section 29 of CNS 1997 burden shifts upon the accused to prove contrary to the plea of prosecution. In this case, positive chemical report has been produced in the evidence, which proved that substance recovered from the secret cavity of the truck of the accused was Charas. Prosecution had discharged its initial onus while proving that substance recovered from secret cavity of truck was Charas whereas appellant had failed to discharge its burden as required under Section 29(d) of CNS 1997.
13. The contention of learned counsel for the appellant that attested copies of the arrival and departure entries have been produced before the trial Court which are inadmissible in evidence, such contention is also without legal force for the reason that objection to the production of the attested copies was not raised before the trial court at the time of production of such entries. No suggestion was put to Excise Inspector that attested copies of such entries have been subsequently managed. Learned advocate for appellant has further argued that a copy of letter issued by Excise Inspector to Chemical Examiner regarding case property has not been produced in evidence. It is observed that it is not necessary under the law. Even otherwise, prosecution has proved its case against the accused by cogent evidence. Learned trial Court has appreciated the evidence according to the settled principle of law.
14. Contention of learned counsel for the appellant that the recovery of the Charas from the truck was not witnessed by the persons from the public and both mashirs belonged to the Excise Department, it may be observed that section 25 of CNS 1997 excludes application of section 103, Cr.P.C. Moreover Excise Officials are as good witnesses as other public witnesses. Their evidence cannot be discorded merely for the reason that they belong to Excise department. Moreover, they had no motive to falsely implicate the accused in this case. Rightly reliance has been placed upon the case of Muhammad Khan (supra).
15. From the close scrutiny of evidence we have come to the conclusion that 80 KGs Charas has been recovered from the secret cavity of the Truck, it was being driven by the appellant. Excise Inspector and mashir had no reason/ enmity with appellant to involve him falsely in this case.
Explanation offered by the appellant that he had taken lift in truck and real culprits were released by Excise Inspector by accepting bribe is not plausible and the defence plea has rightly been disbelieved by the learned trial Court. Learned counsel for the appellant has not been able to point out any material discrepancy and contradiction in the prosecution evidence suggesting the slightest doubt in the prosecution case. Adverting to the sentence, we find that legal sentence has been awarded to appellant by trial Court. The impugned judgment dated 2.4.2011 passed by learned Sessions Judge/Special Court for (CNS), Naushahro Feroze requires no interference by this Court. Pursuant to above, we find no substance in this appeal and dismiss the same.