Arshad Vs The State

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department) Criminal Appeal No.1157-P/2025

Arshad Vs The State Date of hearing: 01.04.2026

For appellant(s): Mr. Danish Afridi, Advocate. For State: Mr. Rauf Khan Afridi, AAG.

JUDGMENT

INAM ULLAH KHAN, J.

1.The appellant, Arshad, has challenged the judgment dated 20.11.2025, passed by the learned Additional Sessions Judge-III/Special Court, Peshawar, in FIR No. 40 dated 03.05.2024, registered under Section 9(d) of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, at Police Station Excise, Peshawar. Through the impugned judgment, the appellant was convicted under Section 9(d) of the Act and sentenced to life imprisonment along with a fine of Rs. 500,000/-. In default of payment of fine, he was directed to undergo six months’ simple imprisonment. The benefit of Section 382-B Cr.P.C. was also extended to him.

2.According to the prosecution case as set out in the Murasila, on 03.05.2024, the complainant, Muhammad Riaz Khan, SHO, received spy information that narcotics would be smuggled via the Motorway at some point during the day. Acting upon this information, he, along with other excise personnel, conducted surveillance on the Motorway Service

Road towards Akbar Pura. During this surveillance, a red- colored loader without registration number was intercepted for checking. The driver disclosed his identity as Arshad Khan. Upon his pointation, the floor of the loader was opened using tools, revealing secret cavities from which thirty (30) packets of contraband were recovered—fifteen (15) colorful packets and fifteen (15) packets wrapped in yellow scotch tape. Each packet was weighed on a digital scale and found to contain 1200 grams of charas, totaling 36,000 grams. From each packet, 5/5 grams were separated for forensic analysis, which were sealed into parcels Nos. 1 to 30. The remaining 35,850 grams of charas were sealed into parcels Nos. 31 and 32, bearing the seal/monogram of “Muhammad Riaz.” The recovery proceedings were recorded on a mobile phone. The complainant also prepared the arrest card (Ex.P.W 1/2), recovery memo (Ex.P.W 1/1), and drafted the Murasila (Ex.P.A/1), which was sent along with relevant documents through S.I Adnan Shahid and Constable Ilyas to the police station for registration of the case. Consequently, FIR No. 40 (Ex.P.A) was registered against the accused.

3.During the course of investigation, co-accused Noor Zaman alias Noor Zada was found to be a co-participant and was accordingly nominated in the case. However, he failed to appear before the police in response to a notice issued under Section 160 Cr.P.C., which led to the issuance of warrants under Section 204 Cr.P.C. (Ex.P.W 5/5) and proclamation proceedings under Section 87 Cr.P.C. (Ex.P.W 5/6). Upon completion of the investigation, a complete challan (final report) was submitted against the present appellant, and for proceedings under Section 512 Cr.P.C. against the absconding co-accused Noor Zaman, which was entrusted to the trial Court.

The appellant, being in custody, was produced through Zamima “Bey,” and copies of the relevant documents were supplied to him in compliance with Section 265-C Cr.P.C. Formal charge was framed against him, to which he pleaded not guilty and claimed trial. As the co-accused Noor Zaman remained absconding, proceedings under Section 512 Cr.P.C. were initiated against him after recording the statement of the search witness (S.W-01), and the prosecution was permitted to adduce evidence in his absence.

4.In support of its case, the prosecution examined five (05) witnesses. After the closure of prosecution evidence, the appellant was examined under Section 342 Cr.P.C., wherein he denied all allegations. He did not opt to produce any evidence in his defense; however, he chose to record his statement on oath under Section 340(2) Cr.P.C. Appearing as D.W-01, the appellant asserted his innocence and claimed that he had been falsely implicated in the case.

5.After hearing the arguments of learned counsel for the parties and evaluating the evidence on record, the learned trial Court, vide judgment dated 20.11.2025, convicted and sentenced the appellant as detailed in paragraph No.01. Being aggrieved by the said conviction and sentence, the appellant has filed the present criminal appeal.

6.Arguments heard and record of the case gone through.

7.We would start off with the evidence furnished by Inspector Muhammad Riaz (PW-2/complainant) and Sub- Inspector Adnan Shahid (marginal witness of the recovery memo/PW-3). In their examinations-in-chief, both witnesses fully supported the prosecution’s narrative as recorded in the

Murasila (Ex.P.A/1) and the recovery memo (Ex.PW-2/1). Muhammad Riaz, Inspector (PW-2/Complainant) appeared in the witness box and categorically supported the charge against the appellant/accused and exhibited all the documents prepared by him during the course of proceedings. He deposed that, after the recovery of contraband, the same was weighed at the spot using a digital scale, and representative samples were duly separated for forensic analysis. Thereafter, he took into possession the sealed parcels of the contraband, along with the representative samples (parcels No. 1 to 32), through recovery memo Ex.PW-2/1, which was duly attested by marginal witnesses Adnan Shahid S.I and Constable Ilyas. He further stated that the loader (Ex.P-3) was also seized through the same recovery memo. He deposed that the entire recovery proceedings were recorded through videography on a mobile phone, later converted into a USB device (Ex.P-3). After completing the formalities and preparing the Murasila (Ex.P.A/1), he handed over the same, along with all relevant documents, case property, the accused, and the loader, to Adnan Shahid S.I (PW-3) and Ilyas EC for onward transmission to the police station for registration of the FIR. The departure entry (DD No. 04) and arrival entry (DD No. 11), both dated 03.05.2024, available on record as Ex.PW-5/2, reflect the movement of the complainant along with his team, thereby corroborating his presence and actions. He further stated that the Investigating Officer prepared the site plan at his pointation. PW-3, being the marginal witness, fully corroborated the testimony of PW-2 on all material particulars and added that upon reaching the police station, he handed over the Murasila, relevant documents, accused, and case property to Moharrir Shehriyar Khan.

8.Both P.W-2 and P.W-3 were subjected to lengthy cross- examination; however, their testimonies remained consistent and unshaken. Notably, certain questions and suggestions put to these witnesses by the defence were in the nature of implied admissions, which, rather than discrediting the prosecution’s case, lent support to the recovery of contraband from the appellant/accused. One such instance of implied admission put to PW-3 has been reproduced for ready reference.

It is correct that the case property and all the documents prepared by complainant were handed over to me and EC Ilyas for taking to police station and loader rickshaw was driven by me.

Furthermore, in an attempt to challenge the presence of the complainant at the spot, the defence advanced suggestions to PW-2 and PW-3 which, again, amounted to implicit acknowledgment of the recovery proceedings. Relevant portions of such suggestions have also been reproduced for convenience.

It is wrong to suggest that in fact complainant was not present on the spot and accused was apprehended by Adnan Shahid S.I.

It is wrong to suggest that Adnan Shahid S.I is the seizing officer but he could not lodge the report as per Excise Police Rules, therefore, the name of complainant was cited by him.

It is wrong to suggest that accused was intercepted by me but as per Excise Police Rules, I could not lodge the report, therefore, I cited the name of the complainant as seizing officer.

Consequently, the testimonies of PW-2 and PW-3 stand mutually corroborative on all material aspects, and nothing substantial could be elicited during cross-examination to impeach their credibility or diminish the evidentiary value of their statements.

9.With regard to the safe transmission of the recovered contraband, PW-2 deposed that, after completing the recovery proceedings, he dispatched the Murasila, along with all relevant documents, the accused, and the case property—including the loader—to the police station through PW-3 and Constable Ilyas. P.W-3 deposed that upon arrival at the police station, these items were handed over to Moharrir Shehriyar Khan. The prosecution examined Muharrir Shehriyar Khan as PW-1, who confirmed the receipt of the Murasila, arrest card, recovery memo, accused, loader (rickshaw), and 32 sealed parcels bearing the monogram of “Muhammad Riaz”. He further stated that he incorporated the contents of the Murasila into the shape of (Ex.P.A), kept the accused in the police lock-up, deposited the case property in the Malkhana for safe custody, and parked the recovered loader within the police station premises. He duly entered the case property in Register No. 19 (Ex.PW-1/1). On 04.05.2024, he handed over sample parcels No. 1 to 30, in sealed condition, to EC Raham Dad through Road Certificate No. 12/21 (Ex.PW-1/2), after obtaining his signature in the relevant register, for onward transmission to the FSL. Parcels No. 31 and 32 were handed over to the Investigating Officer for production before the Magistrate and, upon return, were re- deposited in the Malkhana. The consistent and mutually corroborative testimonies of P.W-2 and P.W-3 satisfactorily establish the chain of safe custody of the contraband from the moment of seizure until its storage in the Malkhana.

10.As far as the safe transmission of the sample parcels to the Forensic Science Laboratory is concerned, Head Constable Raham Dad (PW-4) testified that on 04.05.2024, he received 30 sealed parcels from P.W-1, each containing 5 grams of charas, along with all necessary documents, including the copy of FIR,

recovery memo, FSL form, road certificate, and extract of Register No. 21. He transported these parcels to the FSL, Peshawar, and after obtaining acknowledgment, returned the receipt to PW-1. He further confirmed that his statement was recorded under Section 161 Cr.P.C by the investigation officer. The FSL report corroborates his testimony by confirming that the parcels were received intact through P.W-4. Additionally, Register No. 19 also reflects his name, thereby further strengthening the prosecution’s case regarding safe transmission. The combined effect of oral and documentary evidence—including statements of PW-1 and PW-4, the road certificate, relevant registers, and the FSL report—conclusively establishes that the samples were transmitted safely and without any tampering. The chain of custody thus remains intact, and no discrepancy has been brought on record to cast doubt on the integrity of the process.

11.After the closure of prosecution evidence, the appellant/accused opted to record his statement under Section 340(2) Cr.P.C., appearing as DW-1. In his statement, he professed innocence, alleging false implication and denying recovery of any incriminating material. However, he failed to produce any substantive evidence in support of his claim. During cross-examination, he admitted that he was previously not known to the complainant, Inspector Muhammad Riaz. He further conceded that he had neither approached to the high ups of the police for inquiry into his alleged innocence nor filed any application before the Court in this regard. Importantly, he also admitted that the complainant party had no ill-will or personal enmity against him. These admissions significantly undermine his defence, as they negate the possibility of mala fide or

ulterior motive on the part of the complainant, thereby reinforcing the prosecution’s case.

12.It is an admitted position on record that the appellant, Arshad, was intercepted while driving the loader alone, and the contraband was recovered from secret cavities concealed within the floor of the said loader. In such circumstances, the presumption of conscious possession squarely arises against the appellant/accused Arshad, as he was the sole occupant and driver of the vehicle at the relevant time. The law is well-settled that a person in exclusive control of a vehicle is presumed to have knowledge and possession of items concealed therein, including those hidden in secret compartments. Reliance in this regard is aptly placed on Rawaiz Khan v. The State (PLJ 2024 Cr.C. 1114, Islamabad High Court), wherein this principle was reaffirmed, the relevant paragraph of which is reproduced below:

22.The bulk of the case law discussed herein above upholds the conviction of the driver in cases of recovery made from secret cavities of a vehicle on the presumption that driver being in charge of the vehicle has knowledge and awareness of the articles lying in the vehicle. It has been consistently held by the apex Court that the driver, even if not the owner of the vehicle, is in control and in possession of the vehicle, hence there is a presumption that he is in conscious possession of the articles lying in it [...].

Similarly, the Hon’ble Supreme Court of Pakistan, in Ghazi Khan Pathan & Marzak Khan v. The State (Jail Petition No. 27/2019, decided on 23.04.2025), has also reiterated this settled proposition of law in the following words:

6.Furthermore, the intercepted truck was under the control and custody of the driver, petitioner Ghazi Khan, which legally amounts to his constructive possession of

the narcotics recovered from the vehicle. To further elucidate the role of drivers under the doctrine of constructive possession, it is significant to note that in other jurisdictions such as the United States, the Court in State v. Wallace [372 Md. 137, 812 A.2d 291 (2002)1 opined that drivers of vehicles are perceived to have heightened control over the contents of their vehicles supporting the idea of presumption of knowledge or constructive possession. It, therefore, is a settled principle of law that in such circumstances, the driver is deemed responsible for the contraband found in the vehicle under his charge, and it is presumed that he had knowledge of its presence. Reliance in this regard is placed on Kashif Ameer Vs. The State (PLD 2010 SC 1052) in which this Court held that:

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.

13.The defence, despite lengthy cross-examination, failed to extract any material contradiction or inconsistency from the prosecution witnesses that could impair their credibility. The witnesses remained consistent on all material particulars, and their testimonies are duly corroborated by documentary evidence as well as the positive FSL report. The defence also failed to establish any element of mala fide, ill-will, or ulterior motive on the part of the complainant or the Excise officials. As regards the contention of learned defence counsel that no private witness was associated with the recovery proceedings, it is pertinent to observe that although the prosecution witnesses were all personnel of the Excise Police, their status as official witnesses does not, per se, diminish the evidentiary value of their statements. It is a settled principle of law that official witnesses are competent unless mala fide, enmity, or ulterior motive is convincingly established on the record, which, in the

present case, is conspicuously absent, as the appellant, even in his statement recorded as D.W.-01, failed to establish any past animosity between them that may give rise to suspicion of false implication. Reliance in this regard is placed upon Nazir Ahmed v. The State (2023 SCMR 1299), wherein the Honorable Supreme Court held that:

[7]. "This Court in a number of cases has held that testimony of official witnesses is as good as any other private witness unless it is proved that they have animus against the accused. However, no such thing could be brought on record by the petitioner in this case.

14.In light of the foregoing reappraisal of the evidence, we are persuaded to conclude that the prosecution has successfully established its case against the appellant/accused, Arshad, beyond reasonable doubt. The conviction recorded by the learned trial Court vide judgment dated 20.11.2025 is found to be well-founded and free from any legal infirmity, thus warranting no interference by this Court. Consequently, the conviction and sentence awarded to the appellant/accused Arshad are hereby maintained, and the instant criminal appeal stands dismissed.

Announced.

(Shahid Ali *JSS*)

JUDGE

JUDGE

(D.B)

Hon’ble Mr. Justice Sahibzada Asadullah & Hon’ble Mr. Justice Inam Ullah Khan.