AMJAD ALI SAHIT O, J.---Appellant named above was tried by learned Sessions Judge/Special Judge for CNSA, Ghotki, in Special Case No,22/2Q13, State v. Sartaj Khan, for' offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, arising out of Crime No,12/2013 registered with Excise Police Station DIO Camp Ubauro, whereby , he was convicted and sentenced for an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, to suffer imprisonment for life and to pay fine of Rs,500,000/- (Five Lacs) and in case of default in payment of fine, to suffer S.I for six (06) months more. However , the benefit of section 382-B, Cr.P.C. was also extended to him.
2. The case of the prosecution as depicted in the FIR is that on 08.10.2013, complainant Excise Inspector Abdul Rasool Junejo along with his subordinate staff left Excise Police Station DIO Camp Ubauro with official ammunition and investigation kit, under roznamcha entry No,01, for patrolling. At about 10.00 pm, they started checking at Check Post near Sindh Punjab Border , Kamoo Shaheed, in the meanwhile they found one Truck Trailer in high speed was coming from Sindh Punjab Border , in which suspicion was created in the mind of Excise Police Party to whom with the light of torch, signal was given to stop, Excise Police Party noted that the driver of the Truck Trailer had pistol, who by pointing pistol towards the Excise Police Party tried to accelerate the speed, but he was encircled and truck Trailer forced to stop and it was stopped, who was got to halt, driver with pistol was taken into custody and Truck Trailer bearing Registration No,P-71 14 Peshawar , and the container was loaded with Truck Troller and was enquired about his identity , to which driver disclosed his name as Sartaj Khan Pathan of Peshawar and informed that Match Boxes are loaded in Truck Trailer and he has no license of the Pistol. Thereafter EJ Zarar Ahmed and EC Abdul Sattar were cited as mashirs and bodily search of the accused was conducted. A cash of Rs,5500/-, Computerized driving license, and original CNIC were secured, search of truck trailer was made, in which, there were matchboxes and from back side of cabin of Truck trailer , there was cavity of tank shaped which was opened, in which, there were arms, bullets, and packets, the packets were opened and counted, which became to be 35 in number , each pack et was found one Kilogram of Chars. After completing the necessary formalities, a search of dashboard was made from which, Registration Book and Route permit in the name of Muhammad Ismail were recovered. Such mashir-nama of arrest and recovery was prepared on the spot, which was signed by the above-named mashirs. Thereafter the accused along with recovered case property were taken to Excise Police Station, where the instant case for an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, was registered against him on behalf of the State. On completion of the usual formalities, the Excise police submitted report under section 173, Cr .P.C. before the competent Court of law .
3. The learned trial Court on 01.02.2014 framed a charge against the appellant at Exh.05, to which he pleaded not guilty and claimed trial.
4. At the trial, in order to establish the accusation against the appellant, the prosecution examined the following witnesses;-
(i) PW-01 Complainant/ Excise Inspector Abdul Rasool Junejo at Exh.09, he produced memo of arrest and recovery at Exh.09-A, departure entry No,1 dated 07.10.2013 at Exh.9-B, arrival Roznamcha entry No,1 dated 08.10.2013 at Exh.09-C, FIR at Exh.09-D, chemical examiner's report at Exh.09-E.
(ii) PW -02 Mashir/E.J Zarar Ahmed at Exh.10.
Both these witnesses were cross-examined by, the learned counsel for the appellant. Thereafter , the learned Special Prosecutor for the State closed the prosecution side vide statement at Exh.1 1.
5. Statement of the appellant was recorded under section 342, Cr.P.C. at Exh.12, in which he denied the prosecution allegations and further stated that he is innocent and lastly prayed for justice. However , the appellant did not examine himself on oath in terms of Section 340(2), Cr.P.C., but, examined DW-1 Gul Billand in his defence at Exh.13 and then his counsel closed his side vide statement dated 24.09.2014 at Exh. 14.
6. The learned trial Court after hearing the parties counsel and on assessment of the evidence, convicted and sentenced the appellant, as stated above , vide judgment dated 23.04.2015, which he impugned before this Court by way of filing instant criminal appeal.
7. Mr. Abdul Baqi Jan Kakar , Learned Counsel for the appellant contended that the appellant being driver of the Truck Trailer is innocent and had no knowledge about the availability of charas in the vehicle; that the complainant and PWs being Excise officials are interested and set-up witnesses; that the evidence of such interested witnesses requires independent corroboration, which is also lacking in the present case; that all the witnesses are Excise officials and no independent person has been cited as mashir of arrest and recovery , which is in clear violation of mandatory provision of Section 103, Cr.P.C.; that the complainant himself has conducted investigation of this case; that- out of the alleged charas recovered from cavity of the Truck Trailer only 200 'grams Charas was separated from each packet as a sample and did not send entire case property to the chemical examiner to believe that the recovery is narcotics and there are so many contradictions in the evidence of prosecution witnesses. He lastly contended that the prosecution has failed to prove its case against the appellants; thus according to him under the above-mentioned facts and circumstances, the appellant is entitled to his acquittal.
8. On the other hand, Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General for the State while supporting the impugned judgment has argued that the prosecution has proved its case against the appellant who was found transporting huge quantity of narcotic substance which was secured from the cavity of Truck Trailer driven by him; that the excise officials had no enmity to foist such a huge quantity of charas as well as arms and ammunition upon the appellant at his own; he thus lastly prayed for dismissal of instant appeal.
9. We have heard learned counsel for the appellant, learned Additional Prosecutor General for the State and have minutely gone through the record with their able assistance.
10. It has borne out from the record that 35 K.Gs of Charas was recovered from the secret cavity of Truck Trailer with container , from each pocket 200/ 200 grams Charas was separated as sample for chemical examination and sealed in white paper and remaining Charas was sealed into plastic bags on the spot, so also recovered arms and ammunition which was driven by appell ant Sartaj Khan, who is said to be resident of Peshawar , but he was arrested at Sindh-Punjab Border near Kamoon Shaheed, at Highway , hence the appellant is found responsible for transportation of huge quantity of narcoti cs having prior knowledge of the narcotics substance in his vehicle. It is nowhere mentioned or suggested by the learned counsel of the appellants that the said Truck Trailer was either hired by someone else or he had no knowledge about the availability of narcotics substance in it. In such situation, it cannot be believed that such huge quantity of Charas was kept in the secret cavity of back side of cabin of the vehicle without prior knowledge of its driver , which undeniably remained in possession and control of the appellant all the way from Peshawar to the place of recovery , rather he being its driver was fully responsible for transporting of such huge narcotics substance along with arms and ammunition in his Truck Trailer . The reliance in this context is placed upon the case of Kashif Ameer v.The State (PLD 2010 SC 1052 ), wherein the Hon'ble Supreme Court of Pakistan has held that; 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. The 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 facie established its case then under section 29 of CNSA burden shifted 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.T aj Bibi v.The State (2007 SCMR 1591 ) has held that chemical examiner's report 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.
11. As regards the arguments of learned counsel for the appellant regarding violation of Section 103, d. in concerned, it would be appropriate to refer section 25 of the Control of Narcotic Substances Act, 1997, which reads as under: "25. Mode of making searches and arrest .---The provisions of the Code of Criminal Procedure, 1898, except those of section 103, Cr.P.C. shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sectio ns 20, 21, 22 and 23 to all warrants issued and arrest searches made under these sections.
12. It means that the applicability of section 103, Cr.P.C. in the narcotics cases has been excluded and none inclusion of any private witness is not a serious defect to vitiate the conviction. So far the evidence of excise officials is concerned, they are competent and their evidence cannot be discarded, only for the reason that they are Excise officials. They have furnished straight forward and confidence inspiring evidence, there is nothing on the record to show that they have deposed against the appellant maliciously or out of any animus and it cannot be believed that the excise officials would plant such a huge quantity of narcotics viz. 35 K.Gs. along with arms and ammunitions against the appellant at their own sources. It is a settled principle of law that the prosecution witnesses belong to police officials by itself cannot be considered as a valid reason to discard their statement. The reference in this context is made to the case of Zaffar v.The State (2008 SCMR 1254 ), the Hon'ble Supreme Court of Pakistan has held that;- "Police employees are the competent witnesses like any other witnesses and their testimonies cannot be discarded merely on the ground that they are police of ficials"
13. In the instant case, no proof of enmity with the complainant and the prosecution witnesses has been brought on the record, thus in the absence thereof, the competence of prosecution witnesses being officials was rightly believed. Moreover , a procedural formality cannot be insisted at the cost of completion of an offence and if an accused is otherwise found connected, then mere procedural omission and even allegation of improper conduct of investigation would not help the accused. The reference in this context is made to the case of the State/ANF v.
Muhammad Arshad (2017 SCMR 283 ), wherein the Hon'ble Supreme Court of Pakistan has held that; "We may mention here that even where no proper investigation is conducted, but where the material that comes before the Court is sufficient to connect the accused with the commission of crime, the accused can still be convicted, notwithstanding minor omissions that have no bearing on the outcome of the case".
14. Even otherwise, mere status of one as official would not alone prejudice the competence of such witnesses until and unless he is proved to be interested, who has a motive, to falsely implicate an accused or has the previous enmity with the person involved . The reliance in this context is made to the case of Farooq v. The State (2008 SCMR 970).
15. It is now settled proposition of law that by flex of time in the case of transporta tion or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country , if the case stands otherwise proved, the approach of the Court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases. The Hon'ble Supreme Court of Pakistan in the case of Ghulam Qadir v.The State reported in PLD 2006 SC 61 has held that,- "S. 9(c)--- Appreciation of evidence--- No acquittal on technicalities---Court in such like cases are supposed dispose of the matter with dynamic approach, instead of acquitting the drug paddlers on technicalities."
16. A perusal of chemical examiner's report Exh.09-E, reveals that on the basis of the test mentioned therein it has been declared that the said parcel contained Charas , as regards the arguments of learned counsel for the appellant that only 200 grams were separated from each packet is concerned it would appropriate to refer section 36 of the Control of Narcotic Substances Act, 1997, which reads as under .
"36. Reports of Government analysts :--- The government analysts to whom a sample of any narcotics drugs, psychotropic substance or controlled substances has been submitted for test and analysts shall deliver to the person submitting it, a signed report in quadruplicate in the prescribed form and forward one copy thereof to such authority as may be prescribed.
(2) Notwithstanding anything contained in any other law for the time being in force any document purporting to be a report signed by a government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted, be conclusive.
From the perusal of section 36 of the CNS Act, which requires that the sample of the Narcotics drugs shall be tested by the Government analysts. Where the statute has itself use the word "sample" it is but obvious that sample is always part of the total and it does not require that the whole quantity should be tested.
17. It is pertinent to mention here that chemical examiner's report regarding Charas is sufficient to prove that the substance recovered from the appellant can be used to cause intoxication and the prosecution has discharged its initial onus while proving that substance was recovered from the secret cavity of Truck Trailer in possession and control of appellant Sartaj Khan being its driver , for which the appellant has failed to discharge his burden in terms of Section 29 of Control of Narcotic Substances Act, 1997, which is reproduced herein below for ready reference,- "29. Presumption from possession of illicit articles .-In trials under this Act, it may be presumed, unless and until the contrary is proved, that he accused has committed an of fence under this Act in respect of--
(a) Any narcotic drug psychotropic substance or controlled substance;
(b) Any cannabis, coca or opium poppy plant growing on any land which he has cultivated.
(c) Any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance or controlled substance has been produced or manufactured for the possession of which he fails to account satisfactorily .
(d) any material which has undergone any process towards the production or manufacture of narcotic drug"
18. From the perusal of section 29 of Control of Narcotic Substances Act, 1997, it is evident that where the prosecution prima facie proves recovery from the accused, then the Court is required to presume that the accused is guilty unless he proves that he was not in possession of such drugs. Meaning thereby the burden than would be upon the accused to establish his innocence and absolve himself from the allegations regarding recovery of narcotics substance, while the prosecution has only to show by evidence that the accused was in custody or directly concerned with recovered narcotics substance. In the instant case, the Charas recovered from the secret cavity of Truck Trailer stood to establish, hence it was the turn of the appellant to had proved contrary . Without such proof, the accused will be held guilty by virtue of Section 29 of Control of Narcotic Substances Act, 1997.
19. So far the plea raised by learned defense counsel that the complainant has acted as investigating officer in this case and all the witnesses are Excise officials is of no help to the appellant as there is no bar in the law for a complainant to act as investigation officer of the case. The reliance in this context is placed upon the case of The State v . Zaffar (2008 SCMR 1254 ), wherein the Hon'ble Supreme Court of Pakistan has held that-- "Police officials are not prohibited under the law to be complainant if he is a witness to the commission of an offence and also to be an investigating of ficer, so long as it does not in any way prejudice the accused person".
20. Though the investigation officer and other prosecution witnesses are Excise officials they have no enmity or rancor against the appellant to plant such a huge quantity of narcotics substance against him. The defense has not produced any evidence to establish animosity qua the prosecution witnesses. In matters of huge quantity of narcotics, the absence of enmity or any valid reason for false involvement would also be circumstances tilting the case against the accused. The reliance is made on the case of Salah-ud-Din v.The State reported in 2010 SCMR 1962 , wherein the Hon'ble Supreme Court of Pakistan has held that- "....No enmity whatsoever has been alleged against the prosecution witnesses and there is hardly any possibility for false implication without having any ulterior motives which was never alleged. In view of overwhelming prosecution evidence the defense version has rightly been discarded which otherwise is denial simpliciter and does not appeal to logic and reasons..."
21. Here, both the witnesses have deposed in the same line to support the prosecution case and despite cross- examined by learned defense counsel at length, the defense has failed to point out any dent or to extract any material contradiction fatal to the prosecution case.
22. On our evaluation of the evidence of complainant/Excise Inspector Abdul Rasool and mashir/EJ Zarar Ahmed, we find it confidence inspiring and trustworthy; appellant Sartaj Khan being driver was transporting the huge quantity of Charas along with arms ammunition in Truck Trailer bearing registration No,P-71 14, was arrested at Sindh Punjab Border near Kamoon Shah eed. The version of complainant/Excise Inspector Abdul Rasool has been fully corroborated by mashir of arrest and recovery , which is substantiated with a memo of arrest and recovery , FIR as well as roznamcha departure and arrival entry showing their movement and positive chemical examiner's report.
No enmity , ill-will or grudge has been alleged or proved against prosecution witnesses to implicate the appellant falsely in this case.
23. Considering the above facts and circumstances; we are of the view that prosecution has succeeded to bring the guilt of accused/appellant at home and has proved its case against the appellant beyond any shadow of a doubt.
Learned counsel for the appellant has failed to point out any material illegality or serious infirmity committed by the trial Court while passing the impugned judgment, which in our humble view, is based on an appreciation of evidence and same does not call for any interference. Accordingly , the instant criminal appeal is dismissed being devoid of merits.
24. These are the detailed reasons of the short order announced by us vide order dated 06.08.2018 , whereby the appeal was dismissed.