Saeed Ahmed V. The State,

2022 P Cr. L J 1018 [Balochistan (Sibi Bench)] Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ SAEED AHMED---Appellant Versus The STATE--- Respondent Criminal Appeal No. (s) 57 of 2020, decided on 11th February, 2021. (a) Control of Narcotic Substances Act (XXV of 1997)--- ----S. 9(c) ---Transportation of narcotics ---Appreciation of evidence--- Scope ---Accused was apprehended while transporting 8000 grams of charas ---Prosecution witnesses were consistent on all material aspects ---No distinct dis crepancy was noticed to spoil the credibility of their testimony and they were subjected to cross -examination by the counsel of accused but their testimony was not shattered--- Mode and manner of arrest of the accused leading to recovery of narcotics was pr oved--- Recovered charas was sent to the Forensic Laboratory within 72 hours and no delay was caused, therefore, safe custody of the contraband was not doubtful ---Forensic Laboratory after conducting a chemical test with complete protocol (description there of was available in the report) had found the sample to be charas ---Once prosecution had led ample evidence and discharged the initial onus of proof then it was the accused who had to dislodge the presumption of guilt against him ---No possibility of false implication of the accused existed---Prosecution had successfully established the guilt of the accused and he was rightly convicted by the Trial Court ---Appeal against conviction was dismissed, in circumstances.

(b) Control of Narcotic Substances Act (XX V of 1997) --- ----S. 9 ---Transportation of narcotics ---Scope ---Held, person who is on the driving seat of the vehicle shall be held responsible for transportation of narcotics. Kashif Amir v. State PLD 2010 SC 1052 rel. (c) Control of Narcotic Substances Act (XXV of 1997) --- ----S. 25 ---Criminal Procedure Code (V of 1898), S. 103--- Search and arrest ---Mode --- Search to be made in presence of witnesses ---Scope ---Applicability of S. 103, Cr.P.C. has been excluded by S. 25 of the Control of Narcotic Substances Act, 1997. Zafar v. The State 2008 SCMR 1254 rel. Anwar -ul-Haq Chaudhry appearing on behalf of Muhammad Ayub Tareen for Appellant. Abdul Mateen, D.P.G. for the State. Date of hearing: 7th January, 2021. JUDGMENT ROZI KHAN BARRECH, J .---This Appeal has been filed under section 48 of the Control of Narcotic Substances Act, 1997 (hereinafter "the Act") against the judgment dated 28.08.2020 (hereinafter "the impugned Judgment") passed by the learned Special Judge Sibi under the Act ("trial court") in case FIR No. 20 of 2020 registered under section 9(c) of the Act of Police Station Saddar Sibi whereby the appellant Saeed Ahmed son of Syed Wali Muhammad has been convicted under section 9(c) of the Act and sentenced to suffer Rigorous Imprisonment f or ten years and six months with fine of Rs.50,000/ - and in default whereof to further undergo Simple Imprisonment for eight months with benefit of section 382- B, Cr.P.C.

2. Brief facts of the case are that on 12.05.2020, the complainant Mehboob Ali, SI registered the aforesaid FIR with the allegation that on the fateful night at about 9:00 p.m., he along with other police officials was on checking duty of the vehicles regarding control of smuggling of narcotics and arms/ammunition at Police Post Naeem Akht ar Shaheed. Meanwhile, an Alto car bearing Registration No. AJH -304 driven by the appellant was stopped and on checking of the said vehicle, eight kilograms of baked charas concealed in secret cavities of the said vehicle were recovered. Hence, the crime r eport.

3. On completion of investigation, challan of the case was submitted before the trial Court, whereby he was charge sheeted to which he did not plead guilty and claimed trial. The prosecution in order to substantiate its case produced and examined fi ve witnesses in all, whereafter the statement of the accused was recorded under section 342, Cr.P.C, wherein he professed his innocence. The accused neither recorded his statement on oath as envisaged under section 340(2), Cr.P.C. nor produced any witness in his defense.

4. The trial court, after conclusion of the trial, found the appellant guilty of the charge and while recording his conviction, sentenced him as mentioned above. Hence, this appeal.

5. We have considered the worthy arguments advanced by the learned counsel for the appellant as well as learned DPG and carefully scanned the material available on the record.

6. It has borne out from the record that 8000 grams baked Charas were recovered from the vehicle which was driven by the appellant and sam e were taken into possession through recovery memo and sealed into parcel on the spot.

7. While going through the prosecution evidence, especially the statement of Mehboob Ali SI/SHO (PW -1) who is complainant of the case and seizing officer, Ghulam Sarwar Head Constable (PW -2) who is marginal witness of the recovery memos (Ex.P/2- A and Ex.P/2 -B) and member of the police party. In his presence the alleged Charas was recovered from the vehicle which was driven by the accused. Ghous Bakhsh ASI (PW -3) who recei ved parcels of case property and kept the same in Malkhana of the police station after registering the same in Register No.19, Sajidullah Constable (PW -4) Head Constable who deposited the sealed parcel to FSL laboratory Quetta and Maqsood Akbar SI (PW- 5) w ho conducted investigation of the case. It transpires that all the above witnesses are consistent on all material aspects. No distinct discrepancy was noticed to spoil the credibility of their testimony, and they were subjected to cross -examination by the learned counsel of the accused/appellant, but their testimony was not shattered. From the evidence, the mode and manner of arrest of appellant leading to the recovery of narcotic have been proved, the prosecution evidence is unanimous with regard to the ar rest of the accused, place of the occurrence, quantity of the recovered Charas and to that extent, the evidence of the prosecution is also inspiring confidence. While recovery of narcotics has been effected from the vehicle which was driven by the appellant, hence the appellant has been found responsible for transporting huge quantity of narcotics having prior knowledge of the same in his vehicle.

8. It is well- settled principle that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics as held by the Hon'ble Supreme Court in the case of Kashif Amir v. State (PLD 2010 SC 1052). The relevant portion is reproduced hereunder: - "It is well settled principle that a person who is on driving seat of the vehic le, shall be held responsible for transportation of the narcotics, having knowledge of the same as no condition or qualification has been made in section 9(b) of CNSA that the possession should be an exclusive one and can be joint one with two or more pers ons. Further, when a person is driving the vehicle, he is Incharge of the same and it would be under his control and possession, hence, whatever articles lying in it would be under his control and possession. Reference in this behalf may be made to the cas e of Muhammad Noor v. The State (2010 SCMR 927). Similarly, in the case of Nadir Khan v. State (1998 SCMR 1899), this court has observed that knowledge and awareness would be attributed to the Incharge of the vehicle".

9. Adverting to the contention of the learned counsel for the appellant/accused Saeed that no private person was joined in recovery proceedings except police officials, which is a violation of section 103, Cr.P.C. There appears no force in the contention of learned counsel as the application of section 103, Cr.P.C., has been excluded by section 25 of the Act, in narcotics cases. In the case of Zafar v. The State reported in (2008 SCMR 1254), the Hon'ble Supreme Court has held that: - "Police employees are competent witnesses like any other ind ependent witness and their testimony cannot be discarded merely on the ground that they are police employees".

10. Moreover, the reluctance of the general public to become a witness in such like cases was a judicially recognized fact and there was no optio n left but to consider the statement of an official witness as no legal bar had been imposed in that regard. In the instant case, no proof of enmity with the complainant and the prosecution witnesses has been brought on record, thus; in the absence thereof , the competence of prosecution witnesses being officials was rightly believed. Moreover, the PWs were not at all questioned about any previous ill - will or enmity with the appellant whereby they could have been falsely nabbed and charged for the possession of the 8000 grams Charas.

11. The next contention of the learned counsel for the appellant/accused was that the parcel was sent to the chemical examiner, with delay and it was kept at police station, hence cannot be said that the same was in safe custody. It may be observed that the prosecution sent the entire quantity of recovered contraband to FSL Quetta. Recovery was effected on 12:05.2020 and on the same day the investigation officer handed over the sealed parcel to PW-3 Ghous Bakh ASI, who after regis tering the same in Register No.19 i.e. Ex.P/3 -A kept the same in Malkhana and on the next day i.e. 13.05.2020 handed over the parcel to PW -4 Sajidullah constable who deposited the same to FSL Quetta for analysis and obtained the FSL report, therefore, the recovered Charas was sent to the chemical examiner/FSL Laboratory within seventy two hours and no delay has been caused, therefore safe custody of the recovered contraband is not doubtful.

12. The report of FSL (Ex.P/5- C) further provided that after conduc ting a chemical test with complete protocol (description thereof are available in FSL report), the same have been found baked Charas.

13. After having analyzed the prosecution evidence, we are of the candid view that prosecution has ably discharged the ini tial onus of proof. If once the prosecution leads ample evidence and discharge the initial onus of proof then it is the accused who has to diminish the presumption of guilt against him as being the special law, section 29 of the CNSA 1997, gives rise to a presumption of guilt against the accused. In view of recovery of huge quantity, we can safely observe that there is no possibility of false implication of the appellant in the offence entailing stringent punishment especially in absence of any proven enmit y. We have noticed that in rebuttal to overwhelming prosecution evidence, the appellant has failed to produce any tangible material to rebut the trust worthy and confidence inspiring evidence of the prosecution witnesses. We are, thus, of the considered view that prosecution has successfully established the guilt of the accused/appellant and he was rightly convicted by the learned trial court. The sentence awarded to the appellant duly commensurate with his act. Resultantly this appeal fails and is dismiss ed. The conviction and sentence of the appellant is, thus maintained. SA/56/Bal. Appeal dismissed.