' IJAZ-UL-HASSAN, J.---Wajid Ali Shah appellant and Badar Munir co-accused were tried jointly by learned Sessions Judge/Judge Special Court, Kohat for having been found in possession of Charas and opium weighing 286 K.Gs and 92 K.Gs respectively. At the conclusion of trial, appellant was convicted under section 9 of the Control of Narcotic Substances Act, 1997 and sentenced to life imprisonment and a fine of Rs,100,000 or in default thereof to undergo S.I. For one year. Benefit of section 382-B, Cr.P.C. Was also extended in his favour. However, Badar Munir, co-accused was given benefit of doubt and acquitted of the charge. The truck in question was confiscated to the State and absconding co-accused namely Alimad Shah, Jan Muhammad, Iqbal Shah, Sherin, Israil and Shahzad were declared proclaimed offenders.
2. The appellant, feeling aggrieved, has filed instant Criminal Appeal No,91 of 1999 challenging his conviction and sentence. Badar Munir co-accused is also present pursuant to suo motu notice issued by this Court on 30-4-2002 against the said acquittal order.
3. Facts in brief are that pursuant to a secret information stated to have been received by P.W.
Muhammad Iqbal Khan (Group Leader) that on 24-4-1997 huge quantity of narcotics will be smuggled from 'Illeqa Ghair' .To Punjab via Kohat in Truck No,MRB-3731 a raiding party was constituted which held picketing at Kotal Check Post, Kohat. In the meanwhile, at about 10-00 a.m.
On 24-4-1997 Truck No,MRB-3731 spotted coming from 'Dara Adam Khel' arrived there. The truck was stopped. On inquiry driver of the truck disclosed his name as Syed Wajid Ali Shah and the man sitting with him on the front seat introduced himself as Badar Munir. After cursory search the truck alongwith its driver and cleaner were taken to Police Station ANF Kohat. The thorough search of the truck led to recovery of 266 packets baked Charas wrapped in plastic bag and 52 packets opium
(wet) also wrapped in plastic bags concealed in the secret cavities of the truck. The illicit material was weighed and found 286 K.Gs and 92 K.Gs respectively. Four grams each were separated for chemical examination. The remaining material were sealed in parcels. Registration of the truck, driving licence and National Identity Card of the appellant were taken into possession. The National Identity Card of the co-accused and a cash amount of Rs,9,000 found with co-accused were also taken into possession. Resultantly, a case under sections 6, 7, 8 and 9 of the Control of Narcotic Substances Act, 1997 was registered against the accused vide F.I.R. No,7 dated 24-4-1997.
4. Three witnesses namely Raza Khan, FIO, Tajmin Ali, FIO and Alamzeb, DSP were produced on behalf of the prosecution. The statement of Muhammad Iqbal Khan, Group Leader/Incharge Police Station ANF, Kohat was recorded as S.W.1. The accused in their statements recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged. The appellant admitted that he was driving the truck at relevant time which was intercepted at Kotal Check Post by the ANF Staff, but stated that no recovery was effected. Co-accused also took the same stand. In answer to a question regarding confession, the appellant stated:-- "I was produced to a police officer who had made a promise to me that if I make confession, I will be let off. I told that police officer that I did not know anything about the narcotic as I was a poor person and was only the driver of the truck. That police official threatened me with dire consequences. He was in police uniform. No statement was recorded by him nor I gave any statement to him. The police official took white blank papers and per force took my thumb- impressions. No confession was made by me and if there is any document called confession, was never made by me and I deny that. I did not mention any name as my co-accused to the Investigating Officer, the complainant or the police officer who alleges that I made a confession before him. The names mentioned in the as well as in the statement under section 161 converted into my so-called confession were never mentioned by me."
' The co-accused in reply to a question regarding confessional statement attributed to him, gave the similar reply, and denied having made any confessional statement. No evidence was produced in defence.
5. Mr. Abdul Latif Afridi, learned counsel for the appellant vehemently contended that prosecution has miserably failed to prove their case beyond reasonable doubt and the trial Judge proceeded on wrong premises to hold the appellant guilty of the offence and pass the impugned judgment which is not sustainable. He reiterated that the prosecution did not succeed to prove that the appellant had the knowledge that contraband material was concealed in the truck and prosecution has not produced evidence to demonstrate that it was in the exclusive knowledge of the appellant that Charas and opium were kept in the truck he was driving. The P.Ws. Remained evasive and nothing was said by them that the appellant knew that he had been carrying Charas and opium with him. The Court below did not consider this material aspect of the case. The appellant was driving the truck while co-accused was sitting with him. Their presence in the truck could not be held to be enough to form basis for conviction of the appellant in absence of strong corroboration. Additionally he urged that the recovery is doubtful as the mandatory requirement of section 103, Cr.P.C. Had not been complied with by the Investigating Officer and the witnesses being officials of ANF cannot be relied upon in the circumstances of the case. The learned counsel also complained that the case property i,e, Charas and opium has not been produced in the Court during the trial nor it has been properly exhibited in accordance with law nor the destruction certificate has been proved. Concluding the arguments, learned counsel maintained that the entire evidence of the prosecution has been disbelieved qua Badar Munir to-accused, while the same set of evidence has been utilized against the appellant which tends to suggest that material on record was not seriously assessed and evaluated. In support of the contentions reliance was placed on Zahoor Ahmad Awan and another v. The State (1997 SCMR 543), Tariq Pervez v. The State (1995 SCMR 1345), Muhammad Tahir v. The State (1991 PCr.LJ 644 (Karachi)), Sohrab v. The State (2002 'PCr.LJ 344 (Peshawar) ) and Mehrab Khan and 4 others v. The State (PLD 2002 Quetta 58)".
6. Mr. Khan Askar Afridi, Advocate appearing on behalf of Anti-Narcotic Force supported the impugned judgment and submitted that the appellant has been found guilty of the offence in view of the proper assessm ent of evidence on record and the appeal merits dismissal. He contended that the appellant and the acquitted co-accused were found in occupation of the truck, in which a huge quantity of Charas and opium was being transported and the prosecution through evidence successfully discharged its burden, which appellant and co-accused even admitted but failed to discharge the onus, which was shifted upon them that they did not have the knowledge about the contents or that nothing was recovered from the truck and that the illicit narcotics were foisted upon them. Concluding the arguments the learned counsel added that in such-like cases the approach of the Court should be dynamic and not static as held in Munawar Hussain and 2 others v. The State (1993 SCMR 785).
7. Mr. Muhammad Amin Khattak, learned counsel for Badar Munir co-accused attempted to argue that his client had no hand in the affair and keeping in view the facts and circumstances of the case, learned trial Judge was quite justified to absolve him of the guilt holding that 'the things in the truck are always under the constructive possession of the driver and not of the cleaner ... The job of the cleaner is to help the driver only.
8. There is no cavil with the proposition of law that it is the primary duty of the prosecution to prove its case beyond reasonable doubt and its burden is not shifted under the presumption contained in section 29 of the Act. It only says that once the prosecution established recovery beyond doubt it is then that the burden is shifted. Section 29 of the Act does not absolve the prosecution of its primary duty to prove its case beyond doubt.
9. Having considered the arguments and submissions of learned counsel for the parties in the light of the material on file and the case-law cited at the bar, we find that prosecution has succeeded to prove its case to the hilt and the appellant has been rightly held guilty of the offence in question.
The prosecution has produced sufficient material to prove that pursuant to secret information, picketing was held at Kotal Check Post, Kohat on 24-4-1997 and at about 10-00 a.m. Truck No,MRB- 3731 was seen coming from Dara Adam Khel side. The truck was stopped and brought to the Police Station ANF, Kohat and upon search of the truck the contraband in question were recovered from its secret cavities. The driver and cleaner of the truck were arrested and a case was registered against them. Two senior officers of ANF namely P.W. Raza Khan and Tajmin Ali, FIOs have fully supported the prosecution case. They were subjected to the test of lengthy and searching cross- examination to show that nothing was recovered from the truck and the accused were charged falsely and the narcotics were foisted upon them but nothing fruitful could come out of their statements to create dent in the prosecution story. Both the witnesses have no or animosity against the accused to prompt them to falsely implicate the accused and plant huge quantity of Charas and opium on them. We are convinced that illicit narcotics were recovered from the secret cavities of the truck and the driver and cleaner of the truck namely Syed Wajid Ali Shah appellant and Badar Munir co-accused had a hand in the affair. In a case reported in 1984 PCr.LJ, it was held that driver is always in conscious possession of the contents of his vehicle. It was observed:-- "It has come in the prosecution evidence, not even denied by Ghulam Hazrat, accused-appellant, in his examination under section 342, Cr.P.C., that the bus carrying the contraband opium was at the relevant time being driven by Ghulam Hazrat. The driver of the bus has always full control of the bus and for that reason he would certainly know what is contained in the secret cavities of the bus.
In cases of this nature the offenders take all possible precautions to hide their crime. The contraband items are secretly placed in the cavities designed for the purpose and only the person who has to deliver such goods at the receiving end knows where such goods have been placed in the vehichle. Such a person can only be the driver of the vehicle who has to drive the vehicle up to the driving end. There was, therefore, no escape from the conclusion that while driving the Bus Ghulam Hazrat, accused-appellant, was in conscious possession of the contraband opium."
10. Learned counsel for the appellant next contended that despite prior information no independent and disinterested witness has been associated with the recovery proceedings which has made the recovery doubtful. The submission of the learned counsel is not tenable. Section 25 of the Act clearly excludes the application of section 103, Cr.P.C. To the cases under the aforesaid Act. If an authority is needed on the point reference can be made to cases reported as Fida Gul v. The State (2001 SCMR 36) and Shahid Baloch v. The State (1996 PCr.LJ 628).
11. It has also been urged by learned counsel for accused-appellant that neither case property nor destruction certificate had been produced, which is sufficient to set aside the impugned judgment and vitiate the trial. The submission is not tenable. Non-production of case property at trial or destruction certificate, as rightly urged by learned State's counsel, do not appear to have prejudiced the cause of accused-appellant in any manner. At the most it can be considered an irregularity, which is curable under the law. The recovery has been sufficiently proved and no suggestion has been made to the Investigating Officer regarding destruction certificate.
12. Confessional statement attributed to accused-appellant has been brought under challenge and rightly so. We exclude the same out of consideration.
13. For the reasons mentioned above, we find that sufficient material has been brought on record to connect accused-appellant with the crime and learned trial Judge was quite justified to hold him guilty of the offence.
14. Adverting to the case of Badar Munir co-accused, we observe that learned trial Judge has proceeded on wrong premises to hold that co-accused, being cleaner of the truck, is not responsible because 'the things in the truck are always under the constructive possession of the driver and not of the cleaner. It may be stated here that the evidence produced by the prosecution has been believed in respect of the appellant whereas the same has been disbelieved qua Badar Munir co-accused without solid and cogent reasons. Both the accused have acted in unison and both of them seem to have a hand in the smuggling of illicit narcotics. The mere fact, co-accused is cleaner of the truck, by itself, is not sufficient to absolve him of the liability specially when his presence at the relevant time is admitted and he has produced nothing to prove his innocence.
15. In view of above we set aside the finding of the learned trial Judge regarding acquittal of the co-accused Badar Munir, convict him under section 9 of the Control of Narcotic Substances Act, 1997 and sentence him to undergo life imprisonment in addition to a fine of Rs,100,000 or in default thereof to suffer one year S.I. Benefit of section 382-B, Cr.P.C. Is also given to co-accused. The accused is present in Court in custody. He is directed to be sent to jail to serve out the sentence awarded to him.
' The above are the reasons for our short order dated 4-7-2002.