2008 P Cr (PLP)

IJAZ-UL-HASSAN KHAN, J.

Appellant Safdar Ali along with his co-accused Ghulam Nabi, was tried by learned Additional Sessions Judge/Judge Special Court, Nowshera, who while acquitting co-accused Ghulam Nabi, by giving him benefit of doubt, convicted appellant Safdar Ali, under section 9(c), Control of Narcotic Substances Act, 1997 and sentenced him to suffer imprisonment for life with fine of Rs.1,00,000 (one lac) or in default of payment of fine to undergo further three months' S.I. Benefit of section 382-B, Cr.P.C. was, however, extended to the appellant.

2. Feeling aggrieved by the said judgment, appellant has preferred instant criminal appeal to challenge his conviction and sentence.

3. Facts relevant for the disposal of present appeal are, that on the basis of secret information received by Farman Said Khan, Excise and Taxation Officer, Nowshera that on 29-1-2006, huge quantity of narcotics will be smuggled to Punjab through a motor car via Lal Kurti Bypass Road, Nowshera, a raiding party including Ijlal Babar, Muhammad Arshad Khan, Excise Inspectors and others, was constituted. The raiding party laid "Naka Bandi" near "Lal Kurti Phatak". At about 9-10 hours, a motor car displaying official number plate bearing Registration No.MNS-8765, arrived there. The driver of the car was given a signal to stop but he accelerated the speed. The car was chased and intercepted at some distance. Three persons were sitting in the car. One of them was apprehended at the spot. On inquiry, he disclosed his name and parentage as Safdar Ali son of Muhammad Hussain. The remaining persons succeeded to make good their escape. They were chased and one of them was apprehended. He introduced himself as Ghulam Nabi son of Abdul Matin. A .30 bore pistol and seven cartridges of the same bore were recovered from his possession. The search of the car led to recovery of 238 packets of "Charas" and one packet of opium from dickey of the car. The "Charas" was weighed and found 272 Kgs. The opium was also weighed and found one kilogram. A meager quantity i.e. five grams each was separated out of the seized property and sent to the office of Chemical Examiner, Peshawar for analysis. The remaining was sealed into parcels. Various number plates bearing different registration numbers and registration book of the car were recovered and secured into possession. The accused were formally arrested and a case was registered against them at Police Station Nowshera Cantt. vide F.I.R. No.99, dated 29-1-2006 under section 9, Control of Narcotic Substances Act, 1997, read with section 13, Arms Ordinance, 1965 and sections 419/420/468/471, P.P.C.

4. The appellant and his co-accused, on completion of investigation, were challaned to the Court for trial. The copies of the relevant documents as required under section 265-C, Cr.P.C. were supplied to them. The charge was accordingly framed to which they pleaded not guilty and claimed trial.

5. The prosecution, in order to prove the charge and substantiate the allegations levelled against the appellant and his co-accused, produced six witnesses in all.

6. The appellant and his co-accused on the completion of the prosecution evidence were examined under section 342, Cr.P.C. They in their statement denied the charge and pleaded innocence. In answer to question "as to what is your statement and why you have been charged", the appellant gave the following reply:

"I am innocent and falsely implicated. In fact, I was working with Riaz and Hassan Raza, who brought me to Peshawar as they were having business of smuggling non-custom paid (China cloth) from Bara to Punjab. Some time I came to Peshawar for payment to different carriage contractor. On the relevant day I along with Hassan Raza and Riaz came to Peshawar and stayed in Basit Musafar Khana, where I was present Musafar Khana while Hassan Raza and Riaz went to Bara in connection with their business. After some time they came and told me that China cloth has been loaded in road liner and we have also brought one non-custom paid motor car against the outstanding amount from carriage contractor. So we started our journey. Riaz was driving the vehicle. Hassan Raza seated in the rear seat while I was present in the front seat. In the meanwhile near Nowshera Cantt. we were signaled to stop by Excise officials and on demand of original registration, Riaz produced photo copy and on their insistence on original documents Riaz and Hassan Raza went near Bazar to inform the owner of the vehicle and to bring the original documents and I was present with the Excise officials when they were checking chasis plate after some time the Excise officials started the vehicle and told me that where is your companion call them. When went towards R.A. Bazar after covering some distance, one of Excise employee. again took me into custody. I searched my companion but they disappeared from the scene. In the meantime local police reached the spot and we went to the police station and I along with police officials for searching of my companion came to Peshawar where in their presence I was trying to contact them through their respective mobile numbers in the PCO in the Haji Camp Adda, when we came out from PCO, the taxi driver Ghulam Nabi and we seen to each other and when I inquired from him about my companion that whether he has seen them or not as he is taxi driver in Adda. In some time when we reached Peshawar, he took us from Adda to Musafar Khana and Ghulam Nabi having no connection with the vehicle in question nor with the business of Hassan Raza and Riaz nor having any connection with the alleged occurrence and he has no concern whatsoever with alleged occurrence and he is totally innocent he was arrested from the Adda while talking with me. I have no knowledge about the concealment of contraband and neither I have any knowledge of Riaz and Hassan Raza regarding the business of contraband except non-custom paid China cloth."

7. Representing the appellant, Mr. Noor Alam Khan, Advocate, while challenging the legality of the impugned judgment, submitted that the alleged recovery has not been effected from the personal possession of the appellant; that the appellant had no knowledge of the contraband which were concealed in the car; that there is delay in lodging the F.I.R. which makes the prosecution story doubtful; that the judgment of the trial Court is manifestly wrong and the evidence produced by the prosecution does not connect the appellant with the commission of offence; that formalities of section 103, Cr.P.C. have not been complied with and that the plea taken by the appellant in his statement, has not been given credence which has resulted in miscarriage of justice. Concluding the arguments, learned counsel contended that the appellant is first offender and has no previous record, therefore, the sentence awarded to him requires interference. To substantiate the contentions, learned counsel placed reliance on Ghiasuddin and others v. Ghulam Mohyuddin and others 2005 SCMR 471, Hussain Abid Jaffary v. The State 2006 PCr.LJ 58, 2007 YLR 605 and Abdul Hassan and another v. The State 2007 YLR 1799 (Peshawar).

8. Responding to the arguments of learned counsel for the appellant, Mr. Faiz Muhammad Sabir, Advocate appearing on behalf of the State, maintained that prosecution has got sufficient material on the record to connect the appellant with the commission of crime and in absence of any ill-will or animosity on the part of the members of the raiding party, such quantity of Charas cannot be expected to be planted on the appellant. He reiterated that the findings of the trial Court could not be shown to have been passed on misreading or non-reading of evidence. The trial Court appraised that evidence existing on the record thoroughly and the judgment is based on correct application of law and proper evaluation of evidence and appeal merits outright dismissal.

9. We have considered the above mentioned contentions of learned counsel for the parties, perused the available record with their able assistance and have also gone through the cited judgments.

10. The prosecution in order to prove the apprehension of the appellant and recovery of contraband material from the car, has examined Muhammad Iqbal, Muhammad Arshad Khan, Excise Inspectors, Nisar Khan, S.H.O. Wali Ayaz Khan, S.-I. and Sher Hassan F.C. All the witnesses gave the same details of the incident and their statements bear all shades of truthfulness, therefore, no reason appears from the record for the rejection of their testimony. Their evidence is corroborated by Chemical Analyzer's report, which shows that the samples were Charas and opium. All the witnesses were cross-examined by the defence counsel but he could not obtain any material contradiction in their evidence. All the witnesses are unanimous on salient features and material aspects of the case. They have supported the prosecution case. The delay in lodging the F.I.R. has been explained. Under section 6 of the Control of Narcotic Substances Act, 1997, possession of narcotic drugs is an offence, which is punishable under section 9 of the said Act. Section 6 reads as under:

"

6. Prohibition of possession of narcotic drugs etc.

No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, despatch, 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."

11. Adverting to the plea taken by the appellant, we find that in most of the cases it is difficult for the prosecution to prove that the accused was knowingly in possession of narcotic drugs, therefore, the Legislature have enacted a provision in the shape of section 29 in the Act, 1997 to shift the burden upon the accused to disprove the possession once the prosecution proves that the accused was in possession of narcotic drugs. Thus, the prosecution first has to discharge the duties of proving the allegation, once it is proved then the accused presumed to be guilty of the offence unless he disproves the allegations and charge. The said section reads as under:

"

29. Presumption from possession of illicit articles.

In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence 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 (d) any materials which have undergone any process towards the production or manufacture of narcotic drug, 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."

12. The above section expressly cast a duty upon the Court to presume in a trial under this Act that the accused has committed the offence under the Act unless contrary is proved. If the case is of possession of narcotic drugs then first prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused then the Court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such a drug. Therefore, it is necessary for the prosecution to establish that the accused has some direct relationship with the narcotic drugs or has otherwise dealt with it. If the prosecution proves the detection of the article or physical custody of it then the burden of proving that the accused was not, knowingly in possession of the article is upon him. The practical difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made the Legislature think that if the onus is placed on the prosecution the object of the Act would be frustrated. It does not mean that the word "Possess appearing in the section 6 of the Act does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word "possess" connotes in the context of section 6, possession with knowledge. The Legislature could not have intended to make mere physical custody without knowledge of offence, therefore, the possession must be conscious possession. Nevertheless it is different thing to say that the prosecution should prove that the accused was knowingly in possession. It seems to us that by virtue of section 29, the prosecution has only to show by evidence that the accused has dealt with the narcotic substance or has physical custody of the same or directly concerned with it, unless the accused proves by preponderance of probability that he did not knowingly or consciously possess the article. Without such proof the accused will be held guilty by virtue of section 29, Act, 1997.

13. We are not impressed with the submission of learned counsel for the appellant that the huge quantity of narcotics cannot be placed in the dickey of the car. The next submission made by the learned counsel for the appellant that the recoveries have been effected m violation of section 103, Cr.P.C. is also devoid of force. Admittedly, the recovery of narcotic substance has been made in accordance with the provisions of section 25 of the Control of Narcotic Substances Act, 1997. The said provisions of special statute specially exclude the application of section 103, Cr.P.C.

14. For what has been discussed above, we find that prosecution has succeeded to prove its case to the hilt and the conclusion drawn and reasons given by the trial Court show fair evaluation of evidence. The witnesses have supported the prosecution case and their evidence is corroborated by Chemical Analyzer's report. So far as the question regarding reduction in sentence is concerned, huge quantity of contraband material has been recovered from the vehicle in question. The appellant appears to have been dealt with appropriately. There is no illegality or infirmity in the impugned judgment warranting interference of this Court. The appeal fails, which is hereby dismissed and the impugned judgment is maintained. H.B.T./180/P Appeal dismissed.