2010 PLP 1068 (MLD)

ALI SAIN DINO METLO, J.

Finding him guilty of transporting 342, kilograms of Charas, the Special Court for the Control of Narcotic Substances, Jacohabad, by its judgment, dated 29-6-2004, sentenced the appellant to imprisonment for life and to pay fine of Rs.100,000 and in default of payment of fine to suffer rigorous imprisonment for one year more. He has appealed against his conviction and sentence.

2. Briefly, the facts are that on 29-1-2002, at 2-00 p.m., on Quetta-Jacobabad Road, Near Soomra Petrol Pump, a team of Excise Police, headed by Inspector Sikandar Ali, intercepted a Ford Pick-up, bearing Registration No.VR-232, carrying a cow, coming from Quetta side, and secured 342, kilograms of Charas, packed in the packing of tea, from its secret cavity in the floor of the Pick-up. The appellant was the driver of the Pick-up.

3. At trial, prosecution examined two witnesses, namely, Excise Inspector Sikandar Ali and Excise Constable Ghulam Mustafa. They both deposed that the Charas was recovered from the secret cavity in the floor of the vehicle driven by the appellant.

4. The appellant, did not examine himself or any other witness in his defence. However, in his examination recoded under section 342 of the Code of Criminal Procedure, 1898 (Cr.P.C.) he contended that Inspector Sikandar Ali had falsely implicated him because he was serving as his cook and he suspected him to be involved in the murder of his son.

5. The trial Court, believing evidence of two witnesses examined by the prosecution, convicted and sentenced the appellant as above.

6. Learned counsel for the appellant argued that the case was liable to be remanded to the trial Court for fresh trial because the manner of transporting the Charas was not mentioned in the charge.

7. The record shows that the appellant had fully defended the charge. His Advocate had thoroughly cross-examined the prosecution witnesses, showing that he was fully aware of the matter with which he was charged. There is nothing to show that he was misled in his defence.

8. According to section 222 read with section 223, Cr.P.C., the charge shall contain such particulars as to the time and place of the alleged offence and the person (if any) against whom, or the thing (if any) in respect of which it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. It is not necessary to mention the manner in which the offence was committed, unless it be shown that the particulars regarding time and place of the alleged offence and the person (if any) or the thing (if any) in respect of which it was committed were not reasonably sufficient to give the accused notice of the matter with which he was charged. For example, in the cases of theft or murder it is not necessary to mention in the charge the manner of committing theft or murder.

9. Moreover, the object of framing charge is to inform the accused about the offence he was being tried so that he may be able to defend himself properly. Any error in framing the charge or omission to frame the charge shall not invalidate the trial unless the appellate or revisional Court thinks that the accused was misled in his defence or failure of justice had in fact been occasioned. Section 225 read with illustration (d) and section 535, Cr.P.C. are very clear on this point.

10. In the present case neither the manner of transporting Charas was necessary to be mentioned in the charge nor the appellant was misled in his defence and nor failure of justice has in fact been occasioned due to such omission. There is, therefore, no force in the argument of the learned counsel for the appellant for remanding the case to the trial Court for fresh trial.

11. There is also no force in the argument of the learned counsel for the appellant that the appellant had no knowledge about the Charas having been concealed in the secret cavity in the floor of the Pick-up. It is not the case of the appellant that he was driving the vehicle without knowing that the Charas had been kept in its secret cavity. His case is of total denial. In such circumstances, when the prosecution has successfully proved that the appellant was driving the pickup containing 342 kilograms of Charas in its secret cavity and his plea of total denial is found false, he cannot absolve himself by pleading ignorance about the Charas having been kept in the secret cavity of the vehicle, which was in his-charge.

12. In the case of Nadir Khan and another v. The State, reported in 1988 SCMR 1899, the driver of a car and one other person sitting with him, pleading ignorance about the presence of 49 kilograms of heroin in its secret cavities were not absolved of the charge of transporting heroin observing that their plea of ignorance actually strengthened the case against them rather than weakening it. In the case of Sherzada v. The State, reported in 1993 SCMR 149, the driver of the car taking plea of ignorance was not absolved from the liability of transporting seven kilograms of heroin recovered from a secret chamber in the rear seat of the car. In the case of Rab Nawaz and others v. The State, reported in PLD 1994 SC 858, conviction of the driver of a truck carrying 3250 kilograms of Charas concealed in tobacco bundles was maintained and he was not absolved from the liability of transporting the Charas on his plea of ignorance. In the case of Ghulam Qadir v. The State, reported in PLD 2006 SC 61, the Supreme Court, after considering many of its past precedents regarding liability of drivers of vehicles transporting narcotic substances, was pleased to observe that the drivers could not be absolved merely on their plea of ignorance and in the cases of narcotics the Courts should adopt dynamic approach and ignore technicalities.

13. There is no substance in the plea of the appellant that the appellant was cook of Inspector Sikandar Ali who involved him falsely because he suspected his involvement in the murder of his son. Inspector Sikandar Ali, while categorically denying the suggestion that the appellant was his cook, stated that the appellant was not known to him previously. The appellant chose not to depose in support of his plea. Moreover, it has come on record that son of Inspector Sikandar Ali was murdered in 1999 and the present case pertains to 2002. In case he suspected the appellant to be involved in the murder of his son he could have involved him in the very same case of murder which was pending at the time of recording evidence of the Inspector. And, if he wanted to implicate him falsely in a narcotic case due to his suspected involvement in the murder of his son, he could have done so earlier and there was no need to wait for such a long time of more than three years.

14. The pleas of total denial and lack of knowledge about the presence of Charas in the secret cavity of the vehicle driven by him, being self-contradictory, cannot be given any weight. The facts of the case re Zahoor Ahmed Awan v. The State, reported in 1997 SCMR 543 are distinguishable.

15. Moreover, the preponderant view of the Hon'ble Supreme Court is that drivers of vehicles used in transportation of narcotics substances cannot evade their liability merely by pleading ignorance and that too at appellate stage.

16. According to section 29 of the Control of Narcotic Substances Act, 1997, an accused found in possession of a narcotic substance of which he fails to account satisfactorily, shall be presumed to have committed the offence under the said Act until and unless contrary is proved. In the present case the appellant did not give any explanation for the Charas recovered from the secret cavity of the vehicle driven by him. In such circumstances, the finding of the trial Court holding the appellant guilty of transporting the Charas is unexceptionable.

17. There is also no force in the argument of the learned counsel for the appellant that entire property was not examined by the Chemical Examiner and that the samples were sent to him late. First, it was not necessary to send whole property to the Chemical Examiner when samples were taken from each bundle. Secondly, it was not the case of the appellant that some other substance was recovered from him. His case was of total denial.

8. It was for the above reasons that the appeal was dismissed by a short order passed on 7-5-2009. H.B.T./M-155/K????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.