2014 PLP 31 (YLR)

SYED AFSAR SHAH, J.

This criminal appeal is directed against the judgment dated 30-9-2010 of learned Judge Special Court (C.N.S.), Peshawar whereby the appellant was convicted under section 9(c) C.N.S.A. and sentenced to imprisonment for life with a fine of Rs.1,00,000 or in default thereof to undergo one year' S.I. further with benefit of section 382-B, Cr.P.C.

2. Facts relevant for the disposal of present appeal in brief are as under:--

3. On spy information to the high-ups of A.N.F. regarding smuggling of huge quantity of narcotics from Peshawar to Punjab via Motorway through motorcar bearing Registration No.AJN-375/Sindh (Liana) by one Muhammad Ibrar having a wife and sucking baby, Mushtaq Ahmad, S.-I. to Police Station A.N.F. Peshawar along with his nafri made nakabandi near Toll Plaza Motorway, Peshawar when in the meanwhile the vehicle already spotted to them emerged from Peshawar side, which was signalled to stop. On query, the driver disclosed his name as Muhammad Ibrar whereas the female, who was sitting with him in the front seat and having a baby in her lap, was identified as Mst. Asia. The vehicle was subjected to a thorough search, which led to the recovery of 48 packets charas garda smartly concealed in its Dash Board, whereafter, it was weighed and which came to 57.600 Kgs and accordingly 10/10 grams were separated from the entire stuff for the purpose of FSL sealed into parcels whereas the remaining were sealed into another parcel. On seizure of the vehicle, recovery of narcotics and arrest of the accused, the Seizing Officer prepared the recovery memo Ex.P.W.4/1, recorded the murasila Ex.P.W.4/2 and sent it to the Police Station concerned where on the basis of which F.I.R. Ex.P.W.1/1 was registered against the accused under section 9(c) C.N.S.A.

4. Investigation was started in the case and on its conclusion complete challan was submitted to the Judge, Special Court (C.N.S.), Peshawar, where at the commencement of the trial the prosecution produced as many as five witnesses, whose statements were recorded and placed on file.

5. On close of the prosecution evidence, accused were examined under section 342, Cr.P.C. Describing themselves as scapegoats, they denied the charges, professed innocence and stated to have falsely been implicated. They, however, wished to produce no evidence nor to examine themselves on oath as required under section 340(2) Cr.P.C., however, the appellant while pleading innocence stated that he was running a Pan shop at Lahore and that adjacent to the said Shop one Shoaib was also running the business of Spareparts; that there were two marriage ceremonies in their family and for which he made a request to Shoaib for loan but instead of giving loan, he told him that he should bring a Non Custom Paid vehicle for him from tribal territory and for which he will be compensated; that acceding to the request of Shoaib, he visited Peshawar along with her family as she was also interested in the shopping at Industrial Estate, Peshawar for the marriage ceremony. According to him, his wife Mst. Asia was unaware about the purchase of NCP vehicle.

6. On conclusion of the trial, the learned Judge, Special Court (C.N.S.), Peshawar convicted and sentenced the appellant herein impugned. Arguments heard. Record perused.

7. It appears from the F.I.R. Exh.P.W.1/1 that in this case the occurrence took place on 31-3-2010 at about 1030 hrs whereas the report has been lodged on the same day at about 1230 hrs. Mushtaq Ahmad, SI to Police Station A.N.F., Peshawar is the Seizing Officer of the present case and appearing as P.W.4 he has stated in respect of the occurrence by narrating facts leading to the fencing of road near Toll Plaza, Peshawar, emerging of the vehicle, which was already spotted to them, its stoppage, queries from its inmates, followed by search and recovery of chars weighing 57.600 Kgs. He has also stated about the separation of samples for the purpose of F.S.L., its sealing into parcels, preparation of the recovery memo, drafting of the murasila, recording of statements of some of the P.Ws. under section 161 Cr.P.C., application for FSL as Exh.P.W.4/5 and receipt of its report as Exh.P.W.4/7.

8. So far as Ghulam Haider FC, who has been examined as P.W.5 is concerned, as is evident from the record, on the day of occurrence he was also with the Seizing Officer; he has stated in support of the investigation conducted by Mushtaq Ahmad, S.-I. According to him, on emerging of the vehicle it was signalled to stop and after its thorough search charas weighing 57.600 Kgs was recovered, which was smartly concealed in its secret cavities. Again, he has stated about the separation of samples i.e. 10 grams each from the entire stuff, its sealing into parcels and preparation of the recovery memo Ex.P.W.4/2, which according to him is correct and correctly bearing his signature.

9. So far as the version of S.-I. Mushtaq Ahmad (P.W.4) is concerned, it appears from the record that he was subjected to a lengthy and searching cross-examination by the defence but with no premium to the appellant.

10. Similarly Ghularn Haider FC (P.W.5) marginal witness to the recovery memo was also subjected to lengthy and taxing cross-examination but nothing favourable to the appellant could come out from his mouth. There is nothing in the cross examination of both the P.Ws., which could give an impression that they were all out to implicate the appellant falsely or for that matter they were prompted by his enemies to foist such a huge quantity of narcotics on him. In fact their testimony is free from any material infirmity. The role of the appellant rather appears to be more culpable when he also involved his family in the affair just to give the impression that a family was travelling in the car.

11. The report of F.S.L. Exh.P.W.4/7 is available on record and perusal of the same would show that the stuff recovered from the vehicle, which was in active control of the appellant, was in fact charas. The prosecution in support of the said report has got examined Muhammad Ayub, A.S.-I. (P.W.1) and Azhar Rehman FC (P.W.2). It is in the evidence of Muhammad Ayub, A.S.-I. that on arrival of the I.O. to the Police Station, he handed over to him the remaining case property, parcels of the samples duly sealed along with an application, which he (I.O) has written to the F.S.L. He further stated that on 1-4-2010 he handed over the sealed parcels of samples having the monogram of MA with F.I.R. number along with an application of the I.O. to F.S.L. English docket and route permit to FC Azhar Rehman for taking it to Rawalpindi Laboratory who on his arrival back handed over to him the acknowledge receipt. So far as P.W.2 Azhar Rehman FC is concerned, he has supported the version of Muhammad Ayub, A.S.-I. by stating that on 1-4-2010 he was present in the Police Station A.N.F., Peshawar when Muhammad Ayub, A.S.-I. handed over to him the parcels of samples duly sealed for taking it to F.S.L., Rawalpindi; that he took the same to Rawalpindi in his safe custody and handed over it to the official concerned there in FSL, Rawalpindi, who in token of its receipt signed the route permit, which he handed over to the Moharrir of the Police Station.

12. From the version of the above two witnesses, who as stated earlier, have been examined by the prosecution in support of F.S.L., one could reach to an irresistible conclusion that the report of F.S.L. is free from any doubt.

13. Now we would refer to this version of the appellant that he visited Peshawar for the purchase of Non-Custom Paid vehicle for one Shoaib, who was having a shop adjacent to his Koka Pan at Lahore but it is with dismay that the appellant has not examined the said Shoaib, who could support his version of coming to Peshawar for the purchase of Non-Custom Paid vehicle. Again, it appears from the record that at the time of seizure of vehicle and personal search of the appellant, a registration book in respect of the vehicle has been recovered and which is in the name of one Muhammad Sohail of Karachi meaning thereby, that the vehicle was not N.C.P. and in the circumstances this version of the appellant that he had come to Peshawar for the purchase of Non-Custom Paid vehicle stands to no reason at all.

14. In view of the above, we have no doubt in our mind, that the charge against the appellant has been proved beyond any shadow of doubt and that he has rightly been convicted by the learned trial court, resultantly, the appeal stands dismissed. AG/314/P Appeal dismissed.