KASHIF AMIR vs THE STATE

ORDER

' IFTIKHAR MUHAMMAD CHAUPHRY, C J.---This petition for leave to appeal has been filed against the judgment dated 26-8-2008 passed by the Peshawar High Court, Peshawar in Criminal Appeal No,205/2006, whereby the appeal filed by the petitioner was dismissed, as a result whereof his conviction under section 9-C of Control of Narcotic Substances Act, 1997 [hereinafter referred to as `CNSA') was maintained.

2. Precisely stating facts of the case are that the petitioner while driving a car bearing No,IDL 6391 and co-accused Zia-ullah while sitting in the said car were apprehended at a picket near F.C. Post Kohat, by the ANF officials. On search, from the secret cavities of the car, 193 packets of Charas and 5 packets of Opium weighing one kilogram each were recovered. During investigation the co- accused Ziaullah made confession before the Judicial Magistrate and disclosed the names of other co-accused, After completion of the investigation challan was submitted before Special Court (CNS) Peshawar. Both the accused denied the allegations and claimed trial before the Court.

After completion of prosecution evidence the accused were examined under section 342, Cr.P.C.

Whereby they professed innocence. They also appeared as their own witnesses and recorded their statements under section 340(2), Cr.P.C., in order to disprove the allegations levelled against them.

After completion of the trial the petitioner and co-accused were convicted under section 9-C, CNSA, however, keeping in view the factum of his young age having no history of conviction in past, instead of awarding extreme penalty of death, sentenced to Life Imprisonment along with fine of Rs,500,000 or in default whereof to undergo 5 years R.I. Benefit of 382-B, Cr.P.C. Also extended to them. Being aggrieved, the petitioner challenged the said order before the High Court through Criminal Appeal No, 205/2006, which was dismissed vide impugned judgment. Hence this petition.

3. Learned counsel for the petitioner emphasized with vehemence that involvement of the petitioner/convict in commission of the offence has not been established by the prosecuton as the vehicle belonged to the co-accused Zia-Ullah and he had taken lift from him. As the latter had tired after driving the vehicle, therefore, he occupied the driver seat but had no control over the vehicle. Thus, illicit narcotics recovered from the vehicle could not be attributed to him. The plea raised by the learned Counsel has no substance and seems to be an after-thought idea of the petitioner. Whereas the prosecution case as disclosed by Asmatullah P.W.5 is that in pursuance of spy information the officials of the ANF stopped a vehicle No, IDL 6391 at Kohat road, leading towards Punjab at about 12 noon and two persons out of them Kashif Aamir was at the driving seat while co-accused Zia-Ullah was on the co-driver seat with him, were apprehended. On the search of motorcar, out of its secret cavities, 193 packets of Charas and 5 packets of Opium were recovered. So the plea of the learned counsel that he had no knowledge about the transportation of the narcotics in the vehicle being driven by him has no substance. 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, 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 persons. 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 case of Muhammad Noor v. The State (2010 SCMR 927). Similarly, in the case of Nadir Khan v. State (1988 SCMR 1899 ) this court has observed that knowledge and awareness would be attributed to the Incharge of the vehicle.

Another aspect of the case is that once the prosecution has prima facie established its case then under section 29 of the CNSA burden shifts upon the accused to prove contrary to the plea of the prosecution. Reliance in this behalf may be made to the case of Ismaeel v. The State (2010 SCMR 27) wherein this court, while relying upon the cases of Muhammad Arshad v. The State (2007 SCMR 1378) and Mst. Taj Bibi v. The State (2007 SCMR 1591) has held that the Chemical Examiner's reports regarding Charas and Opium were sufficient to prove that the substance recovered from the accused was Charas which can be used to cause intoxication; the prosecution had discharged its initial onus while proving that substance was recovered from him whereas the petitioner had failed to discharge its burden in terms, of section 29(d) of CNSA. In this behalf reference can also be made to the case of Ikram Hussain v. The Sate (2005 SCMR 1487) wherein it has been held that in terms of section 29(d) of the Control of Narcotic Substances Act, 1997 unless otherwise proved, the presumption would be that the person who is found in possession of the narcotics has committed an offence.

4. Learned counsel also contended that Charas and Opium had been destroyed without giving notice to the petitioner. This argument equally has no substance as the petitioner has never claimed the ownership of the vehicle and the narcotics i,e, Charas and Opium as the same were recovered from its especially designed cavities. However, he has made reference to the judgment in the case of Syed Karim v. Anti Narcotics Force (PLD 2003 Karachi 606) and argued that non- service of notice upon the accused before the destruction of the narcotics is tantamount to deny his valuable right. It is pertinent to mention here that in the said judgment no independent view has been formed as decision on this point has been based on the case of Ali Muhammad v. State (2003 SCMR 54). We have gone through this judgment and in our opinion it is not applicable in any manner on the facts of the case in hand, as in the case of Ali Muhammad (ibid) the question was as to whether a portion of the recovered Charas had to be sent for report of chemical analyzer or the whole lot had to be got examined and in this behalf it was observed that as the appellant (in the reported judgment) never challenged the nature of the recovered substance being not "Charas" or narcotic before the trial Court or the High Court then he could not turn around and say that because only one slab of half kilogram of Charas was recovered from them which was sent to Chemical Examiner who had opined that to be Charas, therefore, they be sentenced according to the quantity of Charas sent to Chemical Examiner. It is to be noted that the Court has been authorized under section 516 A, Cr.P.C. For destruction of the recovered articles. In this behalf procedure has been laid down in section 516-A, Cr.P.C. Relevant proviso therefrom is reproduced hereinbelow.

"Provided further that if the property is dangerous drug, intoxicant, intoxicating liquor or any other narcotic substances seized or taken into custody under Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or any other law for the time being in force, the Court may, either on an application or of its own motion and under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf."

' From the perusal of above referred proviso, it is clear that in case of dangerous drug, intoxicant, intoxicating liquor or any other narcotic, the Court on the application or of its own motion after preparing samples of the narcotics can destroy the remaining portion of the same and issue a certificate in this behalf. The record so made available by the learned counsel shows that after drawing samples from the case property recovered from the vehicle, which was in the control of the petitioner the same was destroyed and certificate from the Magistrate was obtained. Further the destruction certificate as well as the samples were produced before the Court, which were got exhibited, therefore, the procedure discussed hereinabove had been followed. Reference in this behalf may be made to the case of Naseer Ahmad v. The State (2004 SCMR 1361) wherein the plea of the convict regarding the non-production of entire quantity of narcotics before the court was declined on the ground that the narcotics were destroyed by the Magistrate on the application of Investigating Officer during the trial and the Destruction Certificate was issued by him.

5. It is also contended by the learned counsel that out of huge quantity of 193 kg Charas and 5 Kg Opium, samples were not drawn from the total consignment but only 100 grams Charas was sent for the Chemical Examination, which according to him does not represent the whole lot, as such the petitioner shall not be convicted/sentenced under section 9-C but under section 9-B of the CNSA. Reference in this context has been made to the case of Hashim v. The State (PLD 2004 SC 856). We have carefully examined the arguments of the learned counsel in the light of the record.

The prosecution witness namely Asma tullah established that 10% samples out of total recovered Charas i,e, 193 kg and 1% of the Opium was sent to the laboratory. The recovery memo of the narcotics recovered from the cavities of the vehicle Exh.PW-5/1 has been produced by P.W.

Asmatullah along with Chemical Analyzer's Report Exh.PW-5/7 and 5/8 respectively (Report of Charas and Opium). He has also produced on record application under section 516-A, Cr.P.C.

Exh.P.W-5/9, destruction certificate Exh.PW-5/10, sampling certificate Ex.PW-5/11. A perusal of all these documents, particularly inventory indicates that samples were drawn from all the packets of the recovered Charas and Opium, therefore, the presumption of the learned counsel that samples were not drawn from the total recovered quantity of the Charas is not tenable. The judgment, which has been relied up by him in establishing that except from one kilogram Charas no sample was drawn from the remaining recovered narcotics i,e, Charas and on the basis of this it was held that prosecution is bound to draw samples from the total recovered narcotics is not applicable in the instant case. As far as sample drawn out of recovered Opium is concerned, no objection has been raised. In addition to it, in the case of Ali Muhammad (ibid) it has been held that the question with regard to non-collection of the samples from the whole lot of recovered narcotics would arise in those matters, where a challenge has been made that recovered item is not narcotics. Same principle is not attracted herein, because the recovery of the Charas and Opium was not challenged by the petitioner before any Court. Thus, case of the petitioner that he was innocent as he had no knowledge about the transportation of the narcotics (Charas and Opium) in the vehicle by concealing same in the especially designed cavities does not seem to be confidence inspiring in view of the case laws referred to hereinabove. As it has already been observed that primarily it is the duty of the prosecution to prima facie establish the guilt of the accused but once it has succeeded for doing so then in terms of section 29 of CNSA, the presumption would be that unless and until contrary is proved, the accused has committed the offence. In the instant case the prosecution had discharged its initial burden while proving that narcotics were recovered from the petitioner, as such, the burden had shifted to the petitioner to prove his innocence, which he failed to do.

6. No other point has been argued by the learned counsel for the petitioner, Thus, for the foregoing reasons we see no substance in the instant petition.

7. Petition is dismissed and leave to appeal declined.