2012 P Cr (PLP)

ABDUL QADIR MENGAL, J.

The appellant Abdul Khaliq son of Abdullah Jan, caste Mengal, resident of Killi Chahi Shah, Dalbandin, presently confined at District Jail, Quetta has challenged the judgment dated 10th June, 2010 passed by the learned Special Judge, CNS, Quetta whereby the appellant was convicted and sentenced under section 9(c) of the Control of Narcotic Substances Act, 1997 to suffer life imprisonment with fine of Rs.100,000 and in default of fine the appellant was directed to suffer simple imprisonment for one year. The benefit of section 382-B, Cr.P.C. also has been extended in favour of the appellant. 2.???????? Brief facts leading to file the present criminal appeal are that Commander ANF, Dalbandin Area received spy information that a gang of smugglers consisting upon Haji Hameed, Haji Rasheed, Haji Samad, Haji Shah Nazar and others would smuggle narcotics from Afghanistan to? Iran,? as? such, a raiding party was organized, which proceeded at 12-00 p.m. towards Taftan and after covering 21 Kilometers ambushed in the mountainous area. It was 6-00 p.m. when eight Land Cruisers found coming from Afghanistan side, on reaching of the vehicles the same were signaled to stop, however, they started firing towards ANF party, due to their firing Subedar Shabbir Anjum and Kamran Bashir sustained injuries, the wind screen of the vehicle was also broken. The ANF officials in retaliation started firing and succeeded to get stop one of the Land Cruisers, from which two persons were arrested. The person, who was driving the vehicle told his name Muhammad Yousaf, while the other who was sitting beside him on front seat told his name Abdul Khaliq. The both arrested accused confirmed that the Karwan was consisting upon Haji Abdul Hameed, Haji Rasheed and his other colleagues. On checking of the vehicle 26 (twenty six) plastic bags containing 128 cloth bags recovered, which on checking was found opium. On weighing the opium it was 1280 kilograms. Sample of 512 grams separated from each of the cloth bag and then through Murasila F.I.R. Exh.P/3-F was lodged. After registration of the case and on completion of the investigation the matter was sent to the court of Special Judge, CNS, Quetta for trial. 3.???????? On 12th February, 2009 charge was read over to the accused, to which the accused pleaded not guilty and claimed trial, whereas, it is alleged that during confinement the co-accused escaped from the Jail. 4.???????? The learned Special Judge, CNS, Quetta on conclusion of the trial? passed? the? impugned? judgment,? against? which? the? instant appeal is filed. 5.???????? We have heard Mr. Muhammad Yousaf Mengal, Advocate for the appellant while Mr. Shaukat Ali Rakhshani, Special Prosecutor, ANF for State. 6.???????? Learned counsel mostly confined himself to the point that the appellant was a passenger who started from Taftan to get vehicle towards Quetta. In the meanwhile present three vehicles reached, he signaled them to stop and get lift, as such, they took him, but in the middle way did not allow him to get down. They later on implicated him in the present matter. Learned counsel further argued that for the sake of arguments if the prosecution story be treated correct that the appellant was arrested along with driver Muhammad Yousaf even then there is nothing on record to show that the appellant had knowledge or conscious possession of the alleged contraband or illicit narcotics. Actually according to the prosecution case Muhammad Yousaf was the person, who was driving or controlling the vehicle, from which 1280 kilograms of opium was recovered, so on this score too, the appellant is entitled to be acquitted of the charge. 7.???????? Learned State counsel alleged that the prosecution has established and proved the case against the appellant, whereas nothing has come from his side to show that no opium has been recovered from the alleged vehicle, in which he was boarding along with driver. So being the recovery of the opium has been established from the Land Cruiser, in which the appellant was travelling, the burden of proof that he had been falsely implicated in the present matter shifted upon the appellant, in which he badly failed to discharge it. According to learned counsel the case is genuine one, recovery of 1280 kilograms of opium from the vehicle has been proved, and the learned Special Judge, CNS Quetta had rightly held the appellant responsible for the act, therefore, the present appeal has no substance and the same is liable to be dismissed. 8.???????? After hearing both the sides and perusing the record of the case, we are of the view that the prosecution has successfully established the recovery of the contraband opium 1280 kilograms from the vehicle, in which the appellant Abdul Khaliq was sitting along with driver Muhammad Yousaf. The prosecution evidence further shows that the appellant was a member of gang, who used to smuggle narcotics from Afghanistan to Iran via Pakistan. As the P.Ws. have successfully established the recovery of opium from the possession of the appellant and his colleagues and their evidence is corroboratory, consonant and convincing one. No doubt the learned trial Court very ably has appreciated the evidence and has come to a right conclusion, however, for the sake of justice, equity and fairplay, we may mention, that the statement of P.W.1 Captain Shehzad Yunas, statement of P.W.2 Major Sajjid Sharif, statement of P.W.3 Khalid Khan, the Investigating Officer of the case seems based on honest footings and there does appear no material contradiction in their statements showing that the appellant was involved or implicated falsely in the present matter. Nothing has come from? the? side? of? the? appellant? to? show? that? the? ANF? officials had any enmity or ill will towards him due to that he was involved in the alleged offence. 9.???????? The question of conscious possession repeatedly urged by the counsel Mr. Muhammad Yousaf Mengal for the appellant, however, suffice to say that a huge quantity consisting upon cloth bags lying on rear seats of the Land Cruiser, in which the appellant was found travelling at night time fully giving this impression that the appellant was involved along with the driver and he had knowledge and was in conscious possession of the articles. No doubt section 29 of the Control of Narcotic Substances Act, 1997 does not absolve the prosecution of its parameter to prove its case beyond any doubt and burden shifts to the accused only after prosecution has established the recovery beyond reasonable doubt, whereas, admittedly in the instant matter this duty was discharged successfully by the prosecution so then duty shifts to the accused to disprove the prosecution version. Prima facie in the instant case the appellant has failed to show that he had no conscious possession over the illicit articles or to rebut the prosecution version. On our perusal we see no force in the version of appellant and his statement is so irrational and unconvincing one that same itself indicating his involvement in the alleged offence, thus in absence of any reliable or tangible material in support of the appellant's version makes him liable for the alleged offence. In this respect we have benefited our view from 2010 SCMR 927, reported in case of Muhammad Noor and others v. The State, in which the Hon'ble Supreme Court while fixing the responsibility in a similar circumstances on recovery of 268 Kilograms from? the? secrete? cavities? of? a? vehicle? held? that? the? driver? and? his co-accused were in knowledge of the illicit articles, however, for the sake? of? facility? we? are? giving? the? relevant? portion? of? the? judgment as under:-- ??????????? "Ss. 9(c) & 29

Reappraisal of evidence

Recovery of narcotics

Possession of driver

?Scope

Charas weighing 268 kilograms was recovered from secret cavities of vehicle

Driver of the vehicle and his co-accused were convicted under S.9(c) of Control of Narcotic Substances Act, 1997, and were sentenced to imprisonment for life

Conviction and sentence awarded by Trial Court was maintained by High Court

Validity

?Accused who was driving the vehicle was in possession of the vehicle and also in possession of the articles whatever lying in it

Allegation against co-accused was that on his information secret cavities of vehicle were opened and Charas was secured

Co-accused had knowledge of availability of Charas in secret cavities of the vehicle, therefore, he was also involved in the case along with driver

Supreme Court declined to interfere in the conviction and sentence awarded to both the accused-Appeal was dismissed." Thus in the above discussed circumstances, we hold that there is no defect or lacuna in the prosecution evidence so as there does appears no misappreciation or non-reading of the evidence. As such the present appeal has no substance and the same is dismissed. MWA/56/Q???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.