ZAHEER-UD-DIN KAKAR, J.---This Criminal Appeal is directed agains t the judgment dated 24.04.2018 ("the impugned judgment"), passed by the Judg e, Special Court CNS Balochistan, Quett a ("the trial Court"), whereby the appellants Shah Nazar son of Abdullah and Aziz Ahmed son of Muhammad Akbar have been convicted under Section 9 (c) of the Control of Narcotic Substances Act, 1997 ("the Act") and sentenced to suffer Rigorous Imprisonment (RI) for life each with fine of Rs.100,000/- (Rupees one Lakh) each, in default thereof to further undergo for a period of Six months Simple Imprisonment (SI) each with benefit of Section 382-B, Cr .P.C.
2. Precisely stated facts of the case are that on 11.06.2017 upon receiving information regarding transportation of a huge quantity of narcotics by the appellants Shah Nazar and Aziz Ahmed through a Suzuki Mehran Car via Quetta to interior Sindh, the ANF party headed by SI Sajjad Ahmed reached to Nawan Killi near F.O Hospital and started surveillance of vehicles. At about 4:20 p.m. a Suzuki Mehran bearing registration No.AQH-796 appeared on the road from airport side. It was stopped, two persons were sitting in it, one was driving the vehicle and other was sitting beside the driver seat. The complainant inquired the name of the driver , to which he disclosed his name as Shah Nazar son of Abdullah. The other accused was sitting beside the driver disclosed his name as Aziz Ahmed son of Muhammad Akbar . During interrog ation, the appellants disclosed that they concealed the Charas in secret cavities of the vehicle whereupon the complainant prepared disclosure memos and thereafter on the pointation of the appellants, the ANF party recovered total 80 Killogram Charas from the secret cavities of the vehicle, samples were separated for analysis and sealed into parcels. The Investigating Officer also prepared pointation memo of the appellants. Consequently , on the basis of murasila, FIR No.17 of 2017, under Section 9(c) of the Act was registered with Police Station ANF, Quetta.
3. After formal investigation, report unde r Section 173 of Cr.P.C. was submitted before the trial Court and the appellant was sent to face the trial. The trial Court, seized with the matter , framed the charge on 20.07.2017 against the appellants under Section 9(c) of the Act, to which they pleaded not guilty and claimed trial. At the trial, prosecution examined following witnesses: PW-1 Constable Jafar Khan was mushir of the disclosure and pointation memo of the appellants . Ex-P/1-A to Ex- P/1-D, recovery memos of Charas and vehicle bearing registration No.AQH-796, Ex-P/1-E and Ex-P/ 1-F respectively .
PW-2 SI Sajjad Ahmed complainant has reiterated the contents of murasila and produced the same as Ex-P/2-A.
PW-3 SI Aamir Rehmat, Investigating Officer, conducted investigation, recorded statements of witnesses, produced FIR as Ex-P/3-A, memo of receipt of case properties and appellants Ex-P/3-B, memo of personal search of the appellants as Ex-P/3-C and Ex-P/3-D, site plan Ex-P/3-E, FSL reports Ex-P/3-F to Ex-P/3-H and challan Ex-P/3-J.
4. On completion of prosecution evidence, the appellants were examined under Section 342 Cr.P.C., wherein they professed innocence and denied the allegations levelled against them. The appellants did not record their statements on oath nor led any witness in their defence. On conclusion of the trial, the trial Court convicted and sentenced the appellants vide impugned judgment dated 24.04.2018, hence this appeal.
5. Learned counsel for the appellants submitted that the impugned judgment is contrary to facts and law; that the appellants have been involved with mala fide intention and ulterior motives; that the prosecution has relied upon the disclosure of the appellants which are inadmissible under the law; that no private mushir was associated in recovery proceedings which is clear violation of section 103, Cr.P.C; that a false case has been registered against the appellants and Charas has been foisted upon them; that the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt, hence they are entitled to be acquitted.
Learned Special Prosecutor ANF while supporting the impugned judgment has argued that the prosecution has proved its case against the appellants who were found transporting huge quantity of narcotics substance which was secured from the secret cavities of the Suzuki Mehran Car which was being driven by the appellant Shah Nazar while appellant Aziz Ahmed was sitting with him on front seat; that the ANF officials had no enmity to foist such a huge quantity of charas upon the appellants. He lastly prayed for dismissal of the instant appeal.
6. We have heard the learned counsel for the parties and have gone through the available record.
From perusal of the evidence furnished by PW-1 Constable Jaffar Khan, mushir of the disclosure/pointation memos of the appellant (Ex-P/1-A to Ex-P/1-D) and recovery memo of Charas Ex-P/1-E, and PW-2 SI Sajjad Ahmed complainant, it is proved that appellant Shah Nazar was driving the vehicle i.e. Suzuki Mehran Car, at the time of his arrest appellant Aziz Ahmed was sitting with him in the vehicle and on their disclosure and pointation the ANF party recovered total 80 Killogram Charas from secret cavities of the vehicle, samples were separated on the spot, sealed parcels were prepared and on the next day i.e. 12.6.2017 sent to the Fede ral Narcotics Testing Laboratory , Balochistan, Quetta for analysis. On 13.6.2017 Federal Government Analyst examined the material and found that the same are "Hashish Pukhta". Knowled ge and awareness would be attributed to the appellant Shah Nazar as he was driver of the vehicle and the appellan t Aziz Ahmed cannot be absolved from his responsibility as he was sitting with the driver and he could not explain as to why he was sitting with the driver in private vehicle, hence both the appellants are responsible for transportation of huge quantity of charas kept in the secret cavities of the vehicle, which undeniably remained in possession and control of both the Appellants. In spite of lengthy cross-examination of the PWs, nothing beneficial could be elicited regarding any help to the case of the appellants.
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 Hon'ble Supreme Court in the case of Kashif Amir v. State PLD 2010 SC 1052 . The relevant portion is reproduced hereunder: "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 lncharge 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."
7. As regard the arguments of the learne d counsel for the appellants that private person has not been associated as a mushir is without legal substance for the reasons that once the prosecution has apparently , established its case then under section 29 of the Act 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 cavities of the vehicle of the accused was Charas. Prosecution had discharged its initial onus while proving that substance recovered from secret cavities of the vehicle was Charas where appellants had failed to discharge its burden in terms of section 29(d) of the Act.
8. The next contention of the learned counsel for the appellants that all the PWs are ANF officials and their evidence requirts independent corrobora tion. Mere fact that prosecution witnesses are ANF officials, by itself cannot be considered a ground to discard their statements, as the ANF officials are as good witnesses as private persons of the society , Reference in this context can be made to the case of Riaz Ahmed alias Raju v. The State 2004 SCMR 988 . Relevant portion is reproduced as under: "We have considered the contentions and have gone through the documents appended with this petition. The argument of the learned counsel that the testimony of police officials does not inspire confidence is totally devoid of any force. Nothing has been brought on record that any of the witnesses was having any malice against the petitioner . The police officials are as good witnesses as private persons of the society . The testimony of the prosecution cannot be thrown overboard simply on the ground that it has come from the police officials."
Moreover , reluctance of general public to become witness in such like cases was a judicially recognized fact and there was no option left but to consider the statement of an official witness as no legal bar had been imposed in that regard.
9. In the instant case, no proof of enmity with the complainant and the prosecution witnesses has been brought on record, thus, in absence thereof, the competence of prosecution witnesses being officials was rightly believed.
Moreover , the PWs were not at all questioned about any previous or animus with the appellants whereby they could have been falsely nabbed and charged for the possession of the 80 Killogram Charas.
10. Another contention of the learned counsel for the appellants was that the disclosure made by the appellants is inadmissible has no force because it is settled law that discovery of any fact on the information of the accused in custody of police is admissible under Article 40 of Qanun-e-Shahadat Order , 1984 which reads as under: Article 40. How much of information received from accused may be proved.--- When any fact is deposed to as discovered in consequence of information received, from a person accused of any offence, in the custody of a police-officer , so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
A perusal of above Article reveals firstly that it serves as a proviso to Articles 38 and 39 of the Order . Secondly , it is founded on the principle that if the statem ent or information of the accused amounts to confession or otherwise is supported by the discovery of a fact it may be presumed to be true and not to have been extracted. In the instant case after disclosure of the appellants, the complainant on their pointation recov ered total 80 Killogram Charas from the secret cavities of the Suzuki Mehran Car .
Since the disclosure of the appellants led to the recovery of 80 Kilogram Charas, thus, the disclosure made by them are admissible under Article 40 of the Order .
11. On re-appraisal of the evidence available on record it is concluded that the prosecution has succeeded in proving the charge against the appellants beyond reasonable doubt. It is further concluded while awarding conviction and sentence to the appellan t vide impugned judgment, the trial Court has properly appreciated the evidence available on record.
For the above reasons, the instant appeal is dismissed.