2010 P Cr. L J 1042
[Quetta]
Before Ghulam Mustafa Mengal and Jamal Khan Mandokhail, JJ
ADALAT KHAN and another ----Appellants
Versus
THE STATE ----Respondent
Criminal Appeal No.40 of 2008, decided on 15th Ap ril, 2010.
Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c) & 29 ---Possession of narcotics ---Appreciation of evidence ---Both prosecution
witnesses were cross -examined at length by the defence counsel, but nothing had been gained
in fav our of accused ---Account furnished by the prosecution witnesses was credible and
consistent with each other on all material aspects of the case, with the exception of minor
discrepancies which were natural ---No material discrepancy or improvement was made by
said witnesses ---Contention of counsel for accused was that accused were bona fide
transporters/driver and cleaner of vehicle and that they had no knowledge about the hiding of
illicit Hashish ---Neither accused persons disputed the recovery of Hashish f rom the vehicle
being driver and cleaner of the vehicle, nor the same was disputed before the court ---Primary
duty of the prosecution was to prove its case beyond reasonable doubt and its burden was not
shifted under the presumption contained in S.29 of Co ntrol of Narcotic Substances Act, 1997 -
--If, however, a plea was taken by accused, it was a statutory burden under S.29 of said Act to
be discharged through cogent evidence in order to prove him innocent ---Accused, in the
present case, had only denied the charge, pleaded innocence and stated that their vehicle was
hired by the transport company ---Accused had not produced any evidence in their defence
which could establish that the alleged bags were loaded in their vehicle by their co -accused ---
No substance was found in the plea taken by accused persons and plea taken by them in their
defence was neither sufficient nor enough to exonerate them from the charge ---Accused
having failed to discharge the statutory burden, conviction and sentence of accused persons ,
were upheld and maintained.
Abdul Karim Yousafzai for Appellants.
Rauf Atta, Standing Counsel for the State.
Date of hearing: 10th March, 2010.
JUDGMENT
GHULAM MUSTAFA MENGAL, J .--- This appeal is directed against the judgment dated
26-2-2008 passed by Special Judge, C.N.S, Lasbella at Hub, in C.N.S. case No.54 of 2007,
whereby appellants have been convicted under section 9 -C of Control of Narcotic Substances
Act, 1997 and sentenced them to suffer imprisonment for 14 (Fourteen) years R.I. each with
fine of Rs.1,00,000 each, in default of payment of fine to further undergo S.I. for one year
each. Benefit of section 382 -B, Cr.P.C. was extended in favour of appellants with effect from
their arrest.
2. The brief facts of the case are that in pursuance to an authentic secret information by
Commandant, One Battalion (Quaid) Pakistan Coast Guard, Uthal to the effect that huge
quantity of narcotics would be smuggled from Khuzdar. Special patrolling party was
constituted for checking of suspected v ehicle. On 17 -8-2007 at 1725 hours a suspected
Mazda was seen coming from Khuzdar side. A signal was given to the driver to stop the
vehicle. The search of the vehicle led to recovery of Hashish concealed in the ten Onion
Bags. On weighing it became 290 Ki lograms (215 packet rod). Subedar Jan Muhammad took
10 grams from each packet of recovered ten packets in presence of the Mushirs and prepared
10 parcels containing 10 grams and then sealed and signed it in presence of the Mushirs and
accused; sent it to S indh Chemical Laboratory for analysis. It is further alleged that Subedar
Jan Muhammad arrested the driver of the vehicle namely Adalat Khan and Cleaner namely
Farman Ali and Notice under section 22 of the C.N.S. Act, 1997 was also served upon them.
The re covered Hashish and Mazda were taken into possession and the same were taken to
Battalion Headquarter, where F.I.R. (Exh.P/1 -E) was registered with one Battalion (Qaid)
Pakistan Coast Guards Uthal on the same date about 1930 hours.
3. After completion of investigation, appellant was challaned in the Court of Special Judge,
C.N.S., Lasbella at Hub, where charge was framed and read -over to appellants, to which they
pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case examine d three witnesses namely Jan
Muhammad, Naib Subedar (P.W.1) complainant, Hawaldar Muhammad Hafiz (P.W.2)
recovery witness and Noor Muhammad, Subedar Major, Pakistan Coast Guard, Uthal (P.W.3)
Investigating Officer.
5. The convict -appellants were examined under section 342, Cr.P.C. and their statements
were also recorded under section 340(2), Cr.P.C. on oath but they did not produce any
witness in their defence.
6. After assessment of evidence, learned trial Court vide judgment dated 26 -2-2008 convicted
and sentenced appellants, in the manner mentioned hereinabove.
7. We have heard Mr. Abdul Karim Khan Yousufzai, learned counsel for the appellants and
Mr. Rauf Atta, Standing Counsel represented the State.
8. Learned counsel for appellants has stated t hat the appellants are the driver and cleaner of
the vehicle, which was hired by Messrs Super Shaheen Goods Transport Company, Khuzdar
for transportation of 26 bags of Onion from Khuzdar to Karachi vide Builty No.549 dated 17 -
8-2008 and the appellants were bona fide transporters/driver/cleaner of the vehicle and they
had no knowledge about the illicit substance concealed in the Onion bags. In fact Messrs
Abdul Ghafoor, Abdul Hameed and Inayatullah were the real culprits, who hired the truck,
but they were a cquitted of the charge by the trial Court, as such, the appellants are entitled to
grant of benefit of the same.
9. On the other hand Mr. Rauf Atta, learned Standing Counsel contended that the appellants
were found in occupation of the vehicle, in which huge quantity of Hashish was being
transported, which fact has not been denied by the appellants but failed to discharge the
burden, which was shifted upon them that they had no knowledge about the illicit substance
concealed in the bags, as such on proper application of law and facts the appellants have been
found guilty of offence by the learned trial Court.
10. We have carefully considered the arguments of the learned counsel for the parties and
have gone through the evidence on the record.
11. The p rosecution case as narrated in the F.I.R. is that on 16 -8-2007 Commandant One
Battalian (Quaid) received secret information to the effect that huge quantity of narcotic
would be smuggled from Khuzdar to Karachi and in consequence whereof a suspected Mazda
was stopped at R.C.D Highway Pakistan Coast Guards Uthal Check Post by Subedar Jan
Muhammad and 290 Kg. Hashish was recovered from the vehicle hidden in the bags Union.
From each bag 10 grams of Hashish was separated, sealed into parcels and the remaining
Bashish(?) and vehicle was taken into possession vide memo Exh.P/1 -B. In support of the
recovery, Jan Muhammad, Naib Subedar and Hawaldar Muhammad Hafeez, Pakistan Coast
Guard Uthal Check Post entered the witness box as P.W. and P.W.2 respectively. Both th e
witnesses were cross -examined at length by the defence counsel but nothing has been gained
in favour of the accused. After having gone through statements of these witnesses we have
noted that the account furnished by them is credible and consistent with each other on all
material aspects of the case, with the exception of minor discrepancies which are natural,
there is no material discrepancy of improvement made by these witnesses.
12. Insofar the contention of the learned counsel for the appellants tha t appellants were bona
fide transporters/driver/cleaner of the vehicle and they had no knowledge about the hiding of
illicit Hashish in the bags of Onions and it is pertinent to mention here that neither the
appellants disputed the recovery of Hashish from the vehicle being driver and cleaner of the
vehicle, nor the same was disputed before us. However, the appellants during the trial of the
case as well as their counsel contended that the vehicle was hired by Messrs Super Shaheen
Goods Transport Company, K huzdar for transportation of 26 bags of onion from Khuzdar to
Karachi vide Builty No.549 dated 17 -8-2007 and Messrs Abdul Ghafoor, Abdul Hameed and
Inayatullah were the real owners of the said 26 bags of onion, who hired the vehicle. In view
of the plea ta ken by the appellants, it is well -settled proposition of law that it is the primary
duty of the prosecution to prove its case beyond reasonable doubt and its burden is not shifted
under the presumption contained in section 29 of the Act. However, in case a plea is taken,
then it was statutory burden under section 29 of the C.N.S. Act to have discharged through
cogent evidence in order to provide him innocent. The appellants had only denied the charge,
pleaded innocence and stated that their vehicle was hire d by Messrs Super Shaheen
Goods Transport Company, Khuzdar, neither the appellant produced any evidence in
their defence which could establish that the alleged bags were loaded in their Mazda by
their co -accused from Khuzdar nor proprietor of the Super Sha heen goods Company,
Khuzdar was produced by accused -appellants in their defence. From perusal of Builty
Mark -1, it appears that name of sender is Muhammad Umar and receiving person is
Haider and the name of driver is Javaid, as such, there is no substance in the plea taken
by the appellants. The connection of appellants with the vehicle as driver and cleaner has
been established by their own admission, especially when the recovery of contraband items
from the vehicle is also not denied. The plea taken by th e appellant in their defence is
neither sufficient nor enough to exonerate them from the charge and discharge them from
their statutory burden.
13. In view of the above discussion, this appeal having no merit is hereby dismissed.
The conviction and sente nces of the appellants are upheld and maintained. The benefit
under section 382 -B, Cr.P.C. shall remain intact.
H.B.T./24/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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