' IJAZ-UL-HASSAN, J.--- Bakht Jamal (appellant), Bahadar Khan (non-appellant) and Habib Khan (acquitted co-accused) were tried jointly in the Court of learned Sessions Judge/Judge Special Court, Nowshera for offences under sections 6, 7, 8 and 9 of the Control of Narcotic Substances Ordinance, 1995. At the conclusion of trial vide judgment dated 29-10-2001, Bakht Jamal was convicted under section 9(c) of the aforesaid Ordinance to life imprisonment with a fine of Rs,500,000 or in default thereof to undergo further R.I. For two years. Benefit of section 382-B, Cr.P.C.
Was also extended to him.
2. Through the same judgment Bahadar Khan (non-appellant) was convicted under section 202, P.P.C. And sentenced to suffer 5 months' R.I. With a fine of Rs,100,000 or in default of payment of fine to suffer further S.I. For three months. Truck No,PRC-9365 found to have been used in the commission of crime was also confiscated to the State. Co-accused Habib Khan, however, was acquitted by extending the benefit of doubt.
3. The appellant, feeling aggrieved has filed instant criminal appeal challenging his conviction and sentence.
4. Facts of the case in brief are, that consequent to secret information stated to have been received by the Customs Authorities on 4-11-1996 that on the aforesaid date, huge quantity of Charas will be smuggled in Truck No,PRC-9365 to Lahore, a mobile squad consisting of Fazal Shah, Inspector Customs and others, was constituted. The squad headed by Incharge Customs Mumtaz Mehdi, conducted 'Naka Bandi' at G.T. Road near Kund Khairabad. In the meanwhile, the aforesaid truck reached there. The truck was 'stopped for checking. Ostensibly the truck was lbaded with sheets of used containers of Tarcoal. When the sheets were removed, contraband Charas was detected in foreign made smuggled plastic bags. Due to non-availability of adequate facilities at the spot, the truck with Charas was, brought to Customs House, Peshawar. A thorough search of the truct led to recovery of 150 plastic bags containing Charas. Every bag contained 40 packets Charas weighing 1 Kilogram each per packet. The following words were written on the packing of each packet:-- "Doppelt Konzentriertes Tomatenmark Inhalt: 80 g."
' The contraband Charas was weighed and found 6000 kilograms. A small portion i,e, five grams was separated out of the bulk and three samples were obtained. One sample was sent to laboratory for report and one sample was kept in the godown whereas the third sample was retained in the office of mobile squad. The driver of the truck disclosed his name as Bakht Jamal and stated that one Haji Feroz, resident of Jamrud had given him the truck and Charas for taking the same to Lahore in lieu of Rs,10,000. Bakht Jamal was arrested and a case was registered against, him under sections 156(1)(8)(89) read with 2(s) of Customs Act, 1969 and sections 6, 7, 8 and 9 of the Control of Narcotic Substances Ordinance (XLVII), 1995.
5. In a trial held by the learned Special Judge (Central) Customs, Taxation and Anti-Smuggling N.- W.F.P., Peshawar Habib Khan and Bahadar Khan were acquitted by virtue of judgment dated 9-3- 1998 and Bakht Jamal in view of his statement under section 342, Cr.P.C. Wherein he admitted his guilt, was convicted and sentenced to four years' R.I. With a fine of Rs,200,000 or in default to suffer one year's S.I. Under section 156(1)(89) 2(s) of the Customs. Act, 1969.
6. In the present case, the prosecution in order to prove its case and substantiate the charge, examined four witnesses, namely Abdur Raziq, Inspector Customs, Peshawar (P.W.1), Constable Muhammad Salim, Customs House, Peshawar (P.W.2), Constable Sher Muhammad (P.W.3) and Inspector Fazal Badshah, Customs House (P.W.4). At the close of the prosecution evidence, the appellant in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged. In answer to a question as to what is his statement and why he has been charged, the appellant stated that during the days of occurrence he was going to Rawalpindi to search some labour. Near Noshera Bypass the vehicle stopped and he alongwith other passengers came out for drinking water. He saw a constable who was chasing a person but the person made good his escape and disappeared in the nearby village. Inspector Fazal Badhsha, struck a bargain with real culprit apprehended in the truck namely Salim and instead arrested him (appellant).
7. He refused to appear as a witness in his defence under section 340(2), Cr.P.C. And did not produce any defence evidence.
8. Appearing on behalf of the appellant, Malik Haroon Iqbal, Advocate; criticized the impugned judgment on variety of grounds and attempted to argue that the evidence on record is discrepant and pregnant with serious infirmities and prosecution witnesses have contradicted each other on material particulars and the evidence has not been discussed and appreciated in right direction.
He also maintained that the learned trial Court in subsequent trial has failed to give the benefit of section 397, Cr.P.C. To the appellant and thus violated the codified law and rulings of the superior Courts.
9. On the other hand, Mr. Hamid Farooq Durrani, learned Deputy Attorney-General supported the impugned judgment and contended that prosecution evidence having been properly appreciated and relied upon, the impugned judgment is unexceptionable and requires no interference by this Court.
10. It is a claim of prosecution that on receiving spy information on 4-11-1996, regarding smuggling of Charas in Truck No,PRC-9365, the Customs Authorities conducted a 'Naka Bandi' at 'Kund' Khair Abad and on search of the truck recovered huge quantity of Charas weighing 6000 kilograms.
Bakht Jamal driver of the truck was apprehended and a case was registered against him. Two witnesses namely Inspector Fazal Badshah (P.W.4) and Constable Muhammad Salim (P.W.2) have been produced by the prosecution to establish the factum of apprehension of the accused- appellant on 4-11-1996 and recovery of 6000 kilograms of Charas from Truck No,PRC-9365. The statements of P.Ws. Have been perused by us minutely and we have not found any contradiction on the material points in the statements of these witnesses, rather they are consistent on material points. These witnesses were put to lengthy cross-examination by the defence but they withstood the test on all material and relevant aspects. Nothing favorable to the accused-appellant could be elicited from their mouth so as to cause dent in prosecution case. The appellant is alleged to have been implicated in this case falsely and real culprit namely Muhammad Salim is stated to have been allowed an opportunity to rhake good his escape in the nearby jungle by complainant Fazal Badshah, Inspector but nothing has been brought on record to substantiate the assertion. No suggestion in this regard was put to the witnesses when they were in the witness-box. It is not denied that when a specific plea is advanced by an accused then the burden shifts to him to prove the same. The plea advanced is without any basis. Muhammad Ismail and others v. The State 2002 YLR 1743. Such huge quantity of Charas cannot be thrust upon the accused-appellant in absence of tangible, cogent and concrete enmity and that has not been proved by the defence. The defence counsel before the trial Court has set up no proper defence. We are of the considered view that the prosecution has proved its case beyond reasonable doubt against the present appellant and we do not see any merit in the appeal in hand.
11. Coming to the question of sentence we find that the accused appellant has been convicted and sentenced for two distinct offences. Section 397, Cr.P.C. Empowers Court to direct separate sentences of separate trial to run concurrently when convict is already undergoing a sentence of imprisonment. Learned counsel for the accused-appellant has remained unable to show that the learned trial Judge was required to give the benefit of section 397, Cr.P.C. And by refusing so he has violated the codified law and rulings of the superior Courts. The submission is misconceived.
12. Since the learned counsel has failed to point out any illegality by way of misreading or non- reading of the evidence by the learned trial Court, warranting interference by this Court in its appellate jurisdiction, we dismiss the appeal and maintain the impugned order.