AFTAB AHMED GORAR, J.---This appeal filed under Section 48 of the Control of Narcotic Substances Act, 1997 is directed against the judgment dated 15.12.2014 passed by the learned Special Judge-II (CNS) Karachi in Spl. Case No,1134 of 2013 arising out of FIR No,10/2013 and section 9(c) Control of Narcotic Substances Act, 1997 registered with Police Station Excise Karachi-South whereby the appellant was convicted and sentenced to undergo imprisonment for life and fine of Rs,5,00,000/- in default whereof to suffer RI for three years more.
2. The prosecution case as gleaned from the FIR lodged by Excise Inspector Sheraz Gul Thebo on 26.11.2013 at 2355 hours is to the effect that on the same day he along with other Excise staff, on receiving spy information, recovered 20 foil packets of charas weighing 20 Kgs concealed in diggi of the taxi which was driven by the appellant. He was, therefore, booked for the offence vide FIR mentioned above.
3. After completion of investigation, formal challan was put against the accused in Court where he was formally charge sheeted but he did not plead guilty. Therefore, the prosecution in order to prove its case against the accused produced complainant Shiraz Gul as PW-1 who produced Roznamcha entries of departure and arrival as Exh: 5/A, memo. of arrest and recovery at Exh: 4/B, FIR at Exh: 4/C, letter addressed to the Chemical Examiner at Exh: 5/D, report of Chemical Examiner at Exh: 5/E, Forensic report as Exh: 5/F, excise department (MRW) Computerized slip as Exh: 5/G and PW-2 EC Malang Jan Mashir of recovery and arrest as Exh:
6. Thereafter side of prosecution was closed and statement of accused under section 342, Cr.P.C. was recorded in which he professed his innocence however he did not opt to examine oath nor produce any witness in his defence. The learned trial Judge after evaluating the evidence brought on record and hearing the parties found the accused guilty of the offence and convicted and sentenced him as stated above. Hence this appeal.
4. Learned counsel for the appellant contended that the impugned conviction is against facts, law and thus not sustainable; that the learned trial Judge has ignored the mandatory provisions of the CNS Act, 1997; that no private person was called to act as mashir of arrest and recovery. Learned counsel for the appellant while reiterating the grounds mentioned in the memo. of appeal added that the punishment awarded to the appellant is very harsh and appellant deserves leniency.
5. The learned Deputy Prosecutor General, Sindh defended the impugned judgment of conviction of the appellant on the grounds that the prosecution had successfully proved its case against the convicted that there was no animosity between the appellant and the complainant/PWs to falsely rope him in the offence; that a huge quantity of contraband charas was recovered from the taxi which was driven by the appellant and that the appellant dealing in the heinous business of narcotics which is destroying the whole humanity, deserves no leniency.
6. We have considered the arguments advanced by learned counsel for the appellant and learned Deputy Prosecutor General, Sindh appeared for the State and have also carefully gone through the record of the case with their able assistance.
7. The globalization of drug abuse has become one of the gravest problems confronting humanity.
The world, at large, has waged an admirable war against drugs. Many developed and developing countries have achieved remarkable results by making huge investments to check narcotics trafficking while simultaneously reducing the in-house demand for illicit substances. It may be advantageous to mention here that the Control of Narcotic Substances Act, 1997 consolidates and amends the law relating to narcotic drugs and psychotropic substances. It controls and prohibits the prosecution, processing and trafficking of these substances. It also lays progressive punishments for narcotic office It provides for the constitution of Special Courts having exclusive jurisdiction to try narcotic offences. Section 9 of CNS Act, 1997 provides as under:-- "9. Punishment for contravention of sections 6, 7 and 8 Whoever contravenes the provisions of Sections 6, 7 or 8 shall be punishable with:--
(a) imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less;
(b) imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram;
(c) death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b):- Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life."
8. In the present case huge quantity, i,e, (20) Twenty kilograms charas, was recovered from the diggi of taxi bearing registration No,JL-2124 which was in full control of appellant being driver of said taxi, which fact is also not denied by the appellant. In the present case the quantity of narcotics exceeds ten kilograms and case falls in Clause (c) of Section 9 of the Act, for which death penalty or imprisonment for life has been provided. Besides above, the complainant in his examination-in-chief has stated that during investigation he had conducted FSL and obtained record of vehicle from taxation (MRW) from which it appeared that registration number affixed on the taxi is fake one and that number was allotted to a truck while engine number and chassis number are same and no change was found. As regards the ownership of the taxi is concerned, the case of appellant falls within four corners of section 6 of CNS Act, 1997 which reads as follows:--
6. Prohibition of possession of narcotic drugs, etc. No one shall produce, manufacture, prepare, possess, offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, dispatch, any narcotic drug, psychotropic substance or controlled substance, except for medical, scientific or industrial purposes in the manner and subject to such conditions as may be specified by or under this Act or any other law for the time being in force.
9. No enmity ill-will or grudge has been alleged against the prosecution witnesses; on the contrary, sufficient material has brought by the prosecution on the record including report of Chemical Examiner relating to positive report of narcotic substance. So far as the contention of the learned counsel for appellant that the recovery was not witnessed by persons from public, it may be observed that section 25 of CNS Act excludes the application of section 103, Cr.P.C. further the alleged recovery was witnessed by the Excise officials is negated by the fact that the appellant had failed to bring anything on record that he had falsely been roped in the offence because of any rivalry with the official witnesses. Besides, 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(c) of C.N.S.A. that the possession should be an exclusive one and can be joint one with two or more persons. The wisdom is derived from the case titled as "Kashif Amir v. The State" (PLD 2010 SC 1052).
10. Perusal of record reveals that the evidence led by the prosecution is in line with the case as highlighted above with no material variation or lapses; the memo. of recovery and the FIR aforesaid stand fully corroborated and resultantly proved to the satisfaction of the trial Court; the defence depended upon mere denial of the charge and case as well as evidence; no defence evidence at all has been adduced; the initial burden resting on the prosecution stand discharged on its part and the appellant/accused has failed to rebut the same as provided under Section 29 of CNS Act, 1997 and to lead defence evidence establishing his innocence in the matter. Thus, from the facts and circumstances of the case, the prosecution had successfully proved its case against the convict/appellant and, therefore, the learned trial Judge has rightly convicted him.
Consequently, we find no merit in this appeal.
11. After hearing the learned counsel for the parties, by a short order dated 13.04.2018 the instant appeal was dismissed and above are the reasons for the said short order.