2009 P Cr (PLP)

MUHAMMAD ALAM KHAN, J.

This single judgment will dispose of Criminal Appeal No.78 of 2008 titled Nasrullah Khan v. The State and Criminal Appeal No.86 of 2008 titled Alyaz Khan v. The State, as both these appeals are the outcome of one and the same judgment dated 8-10-2008 passed by the learned Judge, Special Court C.N.S. N.-W.F.P Peshawar Camp D.I. Khan in case F.I.R. No.11 dated 9-9-2005 of Police Station Anti-Narcotic Force D.I. Khan registered under section 9 of the Control of Narcotics Substances Act, 1997.

2. Appellant Nasrullah Khan stands convicted under sections 14/15 of the Control of Narcotic Substances Act, 1997 and sentenced to fifteen years rigorous imprisonment with fine of rupees one lack, in default to suffer simple imprisonment for one year which is under challenge in Criminal Appeal No.78 of 2008; while the appellant Alyaz Khan son of Sakhi Sarwar has been convicted under section 9(C) C.N.S.A. and sentenced to imprisonment for life with payment of fine amounting to rupees five lacks, in default to further undergo two years simple imprisonment which he has impugned in Criminal Appeal No.86 of 2008. Benefit under section 382-B, Cr.P.C. has, however, been extended to both the convict/appellants.

3. According to the first information report lodged by Mullazim Hussain Inspector Police Station A.N.F. D.I. Khan, on receipt of spy information that in Motorcar No.ACC676/Sindh, huge quantity of narcotics was being smuggled from Darra Adam Khel to D.I. Khan, he along with other contingent of A.N.F. had made picket near Commissioner's Garden on Dera-Bannu Road when in the meanwhile a white colour Toyota Corrolla Motorcar No.ACC676/Sindh coming from Pezu side was stopped for checking wherein two persons were sitting. The driver disclosed his name as Alyaz Khan son of Sakhi Sarwar caste Banochi resident of Koti Saadat while the other person identified himself as Shad Ayaz Khan son of Sher Bahadur Khan and contraband Charas weighing 12.500 kilograms were recovered from the secret cavities of the said Motorcar. They were accordingly booked for the instant crime vide F.I.R. ibid. During the investigation, they disclosed the names of two other companions, i.e. appellant Nasrullah Khan and Muhammad Younus son of Ishaq Shah, both residents of North Waziristan Agency who were also subsequently arrested in the case.

4. After completion of usual investigation, the appellants were formally charge sheeted but they denied the allegations levelled against them and professed innocence. The prosecution, in order to prove its case, produced and examined three witnesses, namely, Arbab Ghias Inspector as P.W.1, Ghulam Hussain Inspector as P.W.2 and Nauroz Khan H.C. as P.W.3 and closed its evidence. Thereafter, the convict/ appellants were examined of whom Nasrullah Khan denied all the incriminating circumstances but admitted the recovery of money and other articles from his possession. Appellant Alyaz Khan admitted that at the relevant time he was driving the said Motorcar No.ACC-676/Sindh accompanied by Shadyaz accused (since dead). He also admitted their stoppage by the A.N.F. near Commissioner Bagh on D.I. Khan-Bannu road but refuted the recovery of the alleged contraband narcotics (Charas). However, both of them neither opted to produce any defence evidence nor wished to be examined, on oath under section 340(2), Cr.P.C. The learned trial Judge, after evaluating the evidence brought on record found the convict/appellants guilty of the offence charged with and thus on conviction sentenced them as mentioned above, hence these two appeals.

5. We have heard learned counsel for the convict/appellants and Mr. Jehangir Khan Momand, the learned Special Prosecutor on behalf of A.N.F. and have thread barely scanned entire record of the case.

6. Perusal of the record makes it crystal clear that the prosecution case hinges upon the direct evidence furnished by Ghulam Hussain Inspector P.W.2, Nauroz Khan HC (P.W.3), the recovery of the incriminating materials from the direct physical and conscious possession of the appellants and positive report of the Forensic Science Laboratory.

7. Ghulam Hussain Inspector P.W.2 has not only affirmed his earlier version but narrated the subsequent events in the case. He was combingly cross-examined on all material particulars but nothing favourable to the accused came out from his mouth and thus his testimony remained unshattered. He was the true witness of the incident and his testimony was rightly taken into consideration. Likewise P.W.3 Nauroz Khan was also put to lengthy cross-examination by the defence but his testimony also remained unrebutted on every aspect of the case. Though both these two P.Ws are ANF officials but since the defence had miserably failed to prove any animosity or rancor against the convict/ appellants so as to falsely implicate them in the crime, thus their deposition was rightly believed by the learned trial Court.

8. From the proved and unchallenged testimony of Inspector Ghulam Hussain P.W.2 and Nauroz Khan, Head Constable P.W.3, the date, time, place of occurrence, presence of the recovered contraband Charas from the secret cavities of the motorcar in question, the prosecution had successfully established and provide its case against the convict/appellants and thus they were correctly found guilty for the offence and consequently convicted and sentenced through the impugned judgment.

9. Learned counsel for the appellants failed to point out any illegality, irregularity, perversity, non-appraisal of evidence or jurisdictional defect in the impugned judgment of conviction which is accordingly maintained.

10. Consequently, we find no substance in either of the two appeals which are hereby dismissed. H.B.T./131/P Appeal dismissed.