2013 PLP 57 (MLD)

ASSADULLAH KHAN CHAMKANI, J.

Appellant Zarghun Shah stood trial in case F.I.R. No.40 dated 4-8-2007 registered for offence under section 9(c) CNSA at Police Station Anti Narcotics Force, Peshawar and after having been found guilty by learned Judge Special Court (CNS), N.-W.F.P., Peshawar vide judgment dated 12-12-2009, he was convicted and sentenced to life imprisonment with a fine of Rs.2,00,000 or in default to suffer two years SI, however, benefit of section 382-B, Cr.P.C. was extended to him.

2. As per prosecution version, there were information to the ANF highups regarding smuggling of narcotics through Ford Wagon No.AK-2684, thus, believing the same to be true, Sardar Abdul Waheed, Inspector ANF Peshawar along with ANF personnel under the supervision of AD Agha Saba-ul-Hassan laid a picket near Chamkani Mor, GT Road, Peshawar when at the relevant time the said vehicle emerged on the scene, which was signaled to stop. The driver of the Wagon tried to escape from the spot but he was immediately overpowered, who disclosed his name as Zarghun Shah son of Gul Marjan, the present appellant. On cursory search of the Wagon, Sardar Abdul Waheed, Inspector detected narcotics in the cavities made in the front and rear doors, dash board and both head lights. For security reasons, Sardar Abdul Waheed (P.W.3) brought the said vehicle along with the driver/appellant to P.S. where on detail search he recovered from various secret cavities of the Wagon 116 packets of chars garda, 58 packets of chars pukhta and 18 packets of opium. On weighing the said narcotics, 116 packets of chars garda stood 139.200 KGs, 58 packets of chars pukhta stood 62.400 KGs while 18 packets of Opium stood 21.600 KGs. Necessary sample were sent to FSL for chemical analysis while the remaining bulk was sealed into separate parcel, hence the case was registered against the appellant.

3. At the trial the prosecution examined three witnesses in all while abandoning the remaining witnesses being unnecessary.

4. P.W.1 is Ishfaq Hussain, who received the case property and sample etc., from the I.O. on 4-8-2007 and kept the same in Police Station Malkhana and thereafter dispatched the samples to FSL on 5-8-2007.

5. Hayat Shah FC appeared as P.W.2, who accompanied the I.O. and other ANF officials on the relevant day. The occurrence took place in his presence as narrated in the F.I.R. and the recovery of narcotics was effected in his presence as such he became marginal witness to recovery memo Exh.P.W.2/1.

6. P.W. 3 is Sardar Abdul Waheed, Inspector who supervised the search and recovery proceedings and played important role in the case.

7. After recording the prosecution evidence, statement of appellant was recorded, wherein, he admitted his presence on the spot at the time of occurrence, however, took the plea of false implication by letting the real beneficiary, namely, Ajmal Khan. The appellant, however, wished not to depose on oath or to produce evidence in his defence. The trial culminated in conviction and sentence of the appellant, as mentioned above, which he has now questioned through the instant appeal.

8. Learned counsel for appellant contended that the appellant is innocent and falsely implicated in the case. She was of the view that the appellant is a poor driver and earns livelihood for his family by driving the Wagon and has nothing to do with the narcotics allegedly recovered from secret cavities specially designed in the vehicle. She maintained that the appellant has no conscious knowledge regarding concealment of narcotics in the vehicle and that real beneficiary has been let off by the ANF officials and involved the appellant malafidely. She was of the view that no notice was given to the appellant about the destruction of case property, therefore, the conviction and sentence of the appellant recorded by learned trial court is bad in law, hence the same requires to be set naught.

9. On the contrary, learned A.A.-G. while rebutting the arguments from other side contended that the appellant has been directly nominated in the first report, he has admitted his presence on the spot at the time of occurrence in the same manner as narrated by the prosecution. Moroever, huge quantity of narcotics has been recovered from the Wagon driven by the appellant at the relevant time and that the FSL report with regard to the recovered stuff is in positive, hence in this view of the matter the appellant has been rightly convicted and sentenced by learned trial court through the impugned judgment. We have heard learned counsel for the parties and perused the record with their able assistance.

10. Admittedly, the appellant being driver of the Ford Wagon was Incharge of the same and all the articles lying therein were under his control and possession. In the present case, 116 packets of chars garda, 58 packets of chars pukhta and 18 packets of opium were recovered. On weighing the said narcotics, 116 packets of charda stood 139.200 KGs, 58 packets of chars pukhta stood 62.400 KGs and 18 packets of opium stood 21.600 KGs. Sample had been taken from all the packets. Plea of the appellant that he was innocent about the transportation of the narcotics by concealing the same in the especially designed cavities is not tenable. Moreover, in his statement recorded under section 342, Cr.P.C. the appellant has not denied the recovery from the vehicle being driven by him. The prosecution witnesses having no background of any enmity/ill will with the appellant, then the question that the appellant was substituted for the real culprit does not hold the field. The prosecution witnesses could not thrust upon the appellant and huge quantity of narcotics being recovered, which could not be planted against him. Moreover, the appellant had failed to discharge his burden by proving to the contrary in terms of section 29 of Control of Narcotic Substances Act, 1997. Once the prosecution has prima facie established its case, then under section 29 of Control of Narcotic Substances Act, 1997, burden shifts upon the appellant to prove contrary to the plea of the prosecution. As regards the plea of defence regarding destruction of case property without notice of the appellant, in this respect there is sufficient evidence available on record to suggest that due course has been adopted in connection with destruction of case property. The record referred to earlier i.e. Exh.P.W. 3/8 to Exh.P.W.3/14 is supportive of the above fact. Moreover, the I.O. has not been specifically and seriously cross-examined by the defence counsel in this respect. Although the prosecution witnesses have been cross-examined in detail but nothing has been come from their mouth to benefit the appellant. Evidence of recovery in respect of quantity of narcotic substances recovered and that sent for chemical analysis is consistently established by P.Ws., which in turn is also supported by FSL reports. It is an admitted fact that nowadays narcotic business has gone sky high, which has disturbed the very fabric of the society. Moreso, it is an undeniable fact that from majority of the transactions of this nature, the profit gained is using for funding the anti-State elements, which is now judicially noticeable and when there is a clear barring provision attached to Clause-C of section 9 CNSA, 1997 that normal sentence in such like cases is death, however, in no circumstance it shall be less than life imprisonment, then this court also cannot consider the request for lesser punishment. For the aforementioned reasons, it is held that the learned trial court has rightly appreciated the evidence on record resulting in conviction and sentence of the appellant, hence this appeal being devoid of legal merits is dismissed. HBT/292/P Appeal dismissed.