2013 PLP 1357 (YLR)

ASSADULLAH KHAN CHAMKANI, J.

The appellant was tried, found guilty, convicted under section 9(c) C.N.S.A., 1997 and sentenced to imprisonment for life with a fine of Rs.100,000 or in default to suffer further one year's S.I. by the learned Judge Special Court (CNS) Peshawar vide his judgment dated 12-4-2011. In case of non-payment of fine the sentence of one year's S.I. was ordered to run consecutive to the substantive sentence. He was, however, extended the benefit of section 382-B, Cr.P.C. The seized Motorcar No. LEC 7-5034, used in the commission of the offence, was ordered to be confiscated to the State. The absconding co-accused Khial Muhammad was declared as Proclaimed Offender. The Prosecution Agency was directed to proceed against him for confiscation of his movable and immovable properties in due course of law. Now the convict/appellant has challenged his conviction and sentence through the appeal in hand.

2. Brief facts, but relevant for the disposal of this appeal are that on 9-4-2008 ANF high-ups got spy information about smuggling of huge quantity of narcotics from TT via Jamrud Road in Motorcar No.LEC-07-5034 and while acting on this information Inspector Maqbool Ahmad of Police Station ANF Peshawar along with his Contingent Staff laid a picket near Kacha Garhi Jamrud Road Peshawar. At about 6-00 a.m. the said Motor Car appeared from Jamrud side, which was stopped by the raiding party, the driver of the vehicle (appellant) was overpowered and on cursory checking of the said Motor Car 12 packets of charas pukhta were recovered from the secret cavities underneath the front seat, 12 packets of charas pukhta were recovered from the secret cavities underneath the rear seat, along with two packets of opium and 156 packets of charas garda from the Boot of the Motorcar. Complainant Maqbool Ahmad Inspector (PW-3) weighed the recovered contraband items. Charas pukhta stood 24 Kgs., he separated 10/10 grams from each packet of narcotics and sealed the same into parcels No.1 to

182. The remaining narcotics were sealed into other Bags. From the personal search of the convict/appellant Muhammad Afzal recovered Rs.5000 in cash, CNIC and Nokia Mobile phone set, Registration Book of the vehicle along with an open Transfer Letter were also recovered from the Dsh-Board of the Motor Car. The complainant (P.W.3) took into his possession all the narcotics as well as the articles of body search of the accused vide recovery memo Exh.P.W.3/1 in presence of the marginal witnesses. At the time of interrogation Muhammad Afzal disclosed to the I.O. the name of Khial Muhammad to be the owner of the recovered narcotics. Therefore, complainant/Inspector registered the case against Muhammad Afzal and Khial Muhammad vide F.I.R. Exh.P.W.3/2. He then issued the card of arrest of accused Muhammad Afzal vide memo Exh.P.W.3/3. He handed over the case property and the samples etc. to the Muharir Ishfaq Hussain for keeping the same in safe custody. An application for sending the samples to FSL Exh.P.W.3/4 was also delivered to the Muharir. The positive FSL reports are placed on record as Exh.P.W.3/5, Exh.P.W.3/6 and Exh.P.W.3/7. Maqbool Ahmad initiated the process against the absconding accused vide his application Exh.P.W.3/9. On completion of investigation P.W.3 handed over the case file to Sardar Abdul Waheed for onward submission of complete Challan before the Court, who after preparing complete Challan submitted it before the Court for trial. All the recovered narcotics and other articles, like cash of, Rs.5000, CNIC and Nokia Mobile phone set, Registration Book of the vehicle in question along with the open Transfer Letter are available on file in the shape of Exh.P.W.3/1.

3. The prosecution in order to prove its case against the appellant produced as many as eight witnesses before the trial Court.

4. Mr.Noor Alam Khan, the learned counsel for the appellant contended that the convict-appellant being of tender age, should have been tried by the Juvenile Court established under Juvenile Justice System Ordinance, 2000. He also argued that nothing has been recovered from the immediate/personal possession of the appellant nor during the course of investigation the I.O. has collected any material to prove that the appellant is the owner of the seized Motorcar nor he is in possession of any valid document, on the basis of which it could be presumed that he is owner of the vehicle and the recovered narotics in question. He further contended that the convict-appellant has no knowledge as to what has been kept in the secret cavities of the vehicle in question; that the prosecution has failed to lay hands upon the actual owners of the contrabands recovered from the vehicle. He lastly contended that the recovered contrabands were not produced before the Court therefore, the whole trial vitiates and the appellant is liable to be acquitted.

5. On the other hand Mr.Said Rehman, Advocate, the learned Standing Counsel for ANF vehemently opposed the arguments of the learned counsel for the appellant contending that the arguments advanced by the learned counsel for the appellant has no substance, being baseless; that the convict-appellant has been arrested red handed on the spot after having been found in possession of a huge quantity of contrabands of different kinds from the secret cavities of the seized Motorcar bearing Registration No.LEC-07-5034, being driven by the accused-appellant, which led to the recovery of contrabands, taken into possession vide recovery memo. Exh.P.W.3/1, which was duly testified by the other P.Ws. and was not at all shattered by the defence, during lengthy cross-examination and that is the reason that the learned counsel for the appellant could not point out any glaring contradiction or deliberate improvement in the statements of the P.Ws. It was also contended that the FSL reports in respect of the samples, which were separated from the recovered stuffs, are in positive. Thus, under section 29 of the C.N.S.A. the burden shifts to the accused to prove that he is innocent, but he has failed to discharge his burden in this regard. Lastly he contended that appraisal of the entire evidence on file leads him to state at the bar that the learned trial Court has fully and correctly appreciated the evidence on record and thus its judgment is well reasoned and well founded and so needs no interference by this Court. Moreover, a huge quantity of different kinds of contrabands has been recovered from the secret cavities of the seized Car, which was being driven by the accused-appellant.

6. We have heard the learned counsel for the parties and minutely gone through the evidence on record.

7. P.Ws.1 to 8 are official witnesses, according to their statements they had completed all the legal formalities and duties assigned to them during investigation and fully corroborated the prosecution case therefore, their statements need not be reproduced/reiterated. Moreover, all the P.Ws. remained consistent with regard to the recovery of the contrabands from the Motorcar in question and the manner in which the recovery was effected. The said witnesses were subjected to lengthy cross-examination, but the defence failed to damage or shatter their testimony.

8. It will not be out of place to mention here that during the course of trial the appellant moved an application on 22-6-2010 for officially summoning the Chairman Standing Medical Board and Head Master GPS Haji Dhand, Khyber Agency, from where the School Leaving Certificate was obtained, which was disallowed by the trial Court vide order-sheet dated 2-12-2010. Thereafter he moved Cr.M.(Q) No.288 of 2010, before this Court, which was accepted vide order dated 17-1-2011 and the above said two witnesses were allowed to be officially summoned and examined as D.Ws. Perusal of the order sheet dated 21-2-2011 shows that in compliance with the directions of this Court vide order dated 17-1-2011, Muhammad Rasool Afridi, Head Master appeared before the trial Court and recorded his statement as D.W.2. He denied to have issued and signed the said School Leaving Certificate being relied upon by the appellant for his age, rather stated that he was even not posted in the said School, when the said Certificate was issued. In proof of his stance he produced before the trial Court copy of his posting/transfer letter bearing Endorsement No.1596-1660, dated 19-9-1998, whereby he was transferred and posted at GPS Zawa Bara Khyber Agency with effect from 19-9-1998, whereas the said School Leaving Certificate was issued on 19-9-2004. The same being fake and fabricated was correctly not relied upon by the trial Court.

9. After recording evidence of the P.Ws., the accused-appellant was examined under section 342, Cr.P.C. wherein he denied all the allegations made against him by the prosecution. However, he requested for recording the statements of Dr.Umar Ayub Khan, Chairman Standing Medical Board and Muhammad Rasool Afridi, Head Master GPS Haji Dhand Bara Khyber Agency in his defence as D.Ws, The Chairman recorded his statement as D.W.1. However, his learned counsel abandoned, being won over, to examine Ghulam Rasool Head Master GPS Haji Dhand, Khyber Agency as D.W. Accordingly the statement of Dr. Umar Ayub Khan, Chairman of the Standing Medical Board was recorded as D.W.1. As per Medical report his age was opined to be 16-1/2 17-1/2 years, but he being Chairman of the Standing Medical Board, only countersigned the report of the Board, but the same was not relied upon and rightly too by the trial Court, because at the time of arrest his age was recorded as 24 years and at the time of recording his statement under section 342, Cr.P.C. his age was recorded about 26 years. In his CNIC and Driving License, taken into possession at the time of arrest, his date of birth is recorded as 18-1-1984 and the occurrence had taken place on 9-4-2008, so on the day of occurrence he was aged 24 years 2 months and 21 days. Normally CNIC and Driving License are issued for a person, who attains the age of 18 years or more than 18 years.

10. The stand of the appellant is that on the relevant day, and time he was on his way to Qayyum Stadium Peshawar, situated at Peshawar Saddar for Cricket Trial of under 16 Team and was standing at Kacha Garhi Bus Stop, where the seized vehicle was parked by some unknown persons, who escaped from the spot, while the officials of ANF took him into custody and implicated in the present case. His this stance is contradicted by the appellant himself as is apparent from the cross-examination of the P.Ws. 3 and 5, where the learned counsel for the appellant put suggestions to the P.Ws. that on the day of occurrence after Stadium, situated at Peshawar City, the appellant was going to the house of his brother, situated in Karkhano Market, when he was arrested in the way. Therefore, the contradictory versions of the convict-appellant cannot be considered to be true and the same are brushed aside.

11. So far as the contention regarding non-production of the recovered contrabands before the trial Court is concerned, it has no force and is repelled, because the recovered contrabands were produced by Maqbood Ahmad (P.W.3) before the trial Court, while recording his statement on 20-4-2009, duly sealed into two bags as Exh.P.1 and Exh.P.2. At that time the defence counsel did not raise any objection on the case property, rather requested to reserve the cross-examination of P.W.3. Syed Shaukatullah Shah Judicial Magistrate Peshawar appeared as P.W.7 and Syed Mudasir Shah Tirmizi Judicial Magistrate Peshawar recorded his statement as P.W.8. Both stated regarding destruction of the contrabands recovered in this case, as per orders of the trial Court and the Court of Sessions Judge Peshawar. The statement of Maqbool Ahmad (P.W.3) was recorded on 20-4-2009, but the cross-examination of this witness was reserved, on the request of the learned defence counsel, due to non-presence of other witnesses and the said witness was cross-examined on 14-6-2010, i.e. after one year and about two months, which is not a good practice and it should be discouraged.

12. After appraisal of evidence and material available on file we have come to the irresistible conclusion that the learned trial Court after appreciation of evidence has rightly held that the prosecution had undoubtedly established the recovery of the contrabands of huge quantity from the secret cavities of the seized Motorcar, being driven by the convict-appellant, regarding which he had full knowledge and in this respect arguments advanced by counsel for the appellant has no force. Moreover the driver of the vehicle is presumed to be aware of the goods loaded in the vehicle, unless otherwise proved. As held by the honourable Supreme Court of Pakistan in a judgment reported as Ghulam Qadir v. The State (PLD 2006 SC 61). Driver cannot be absolved from the res-ponsibility, if the contraband items are being transported by a vehicle driven by him.

13. The official witnesses appeared in the trial Court against the appellant had no enmity or malice against him and plantation of such huge quantity of narcotics is also impossible. Thus, though they are official witnesses of ANF, but in the absence of any grudge or ill-will, against the convict appellant, they are as good witnesses as other public witnesses and their testimony could not be discarded or brushed aside on the sole ground that they are members of ANF. It is evident from the evidence on record that all the witnesses of the prosecution who had witnessed the recovery of the contrabands mentioned above from the Motorcar in question, which was being driven by the appellant, have remained consistent, so far as the time, place and nipple of recovery is concerned, despite lengthy cross-examination of the defence. Hence we find no reason to discard their testimony. Furthermore, it is established from the evidence on record that the learned trial Court had rightly rejected defence version of the appellant after considering each and every piece of evidence on record before recording conviction against the appellant, therefore, we are of the considered view that the prosecution has successfully established its case through confidence inspiring evidence of eye-witnesses recorded before the trial Court, which was not at all shattered by the defence during cross-examination. Needless to mention here that the FSL report in respect of the samples separated from lots of contrabands are positive. It has been observed that the business of narcotics is increasing day by day, which ruins the society as a whole and this business is required to be curbed and dealt with iron hands. So in view of the above discussion we hold that the impugned judgment and order of the trial Court is well-founded and needs no interference by this Court. Wisdom in this respect can be sought from a judgment delivered by the honourable Supreme Court of Pakistan in Ismaeel v. State (2010 SCMR 27). Consequently the conviction and sentence of the appellant is maintained and the Appeal in hand being devoid of force is hereby dismissed. HBT/45/P Appeal dismissed.