' MUHAMMAD AKHTAR SHABBIR, J.---Khaliq Jan, appellant, was tried by the learned Additional Sessions Judge, Attock, in case F.I.R. No.413 dated 10-11-2002 under section 9-C of C.N.S.A. 1997, vide judgment dated 23-1-2003, whereby the appellant was convicted under section 9-C of C.N.S.A., 1997 and sentenced to four years R.I. With a fine of Rs.50,000 or in default thereof to undergo further six months R.I. The benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. Succinctly, the prosecution case as narrated in the F.I.R. Is that: ' On 10-11-2002 the police party headed by Shakeel Ahmad S.I/P.W.5 was present at Mullan Mansoor Check Post, where at about 1 p.m. Bus No.0092 came from Peshawar, side, which was stopped and subjected to inspection through Tahir Mahmood Constable/P.W.4 who alighted Khaliq Jan accused from the said Bus on being suspicion as the accused was having the shopping bag of black colour in his lap. On being searched by Shakeel Ahmad S.I., five packets of 'Charas' wrapped in the newspaper weighing 5-Kg were recovered from the possession of the accused-appellant; ten grams were separated for chemical analysis. The recovered 'Charas' P.I. And sample were made into separate sealed parcels which were secured vide memo. Exh.P.B., while from personal search of the accused-appellant rupees 150 P.2 were also secured vide memo. Exh.P.C. After the investigation the accused was challaned to the Court.
3. The charge was framed under section 9-C of C.N.S.A. 1997 against the appellant, to which, he pleaded not guilty and claimed trial.
4. To bring home the guilt of the accused-appellant, the prosecution has examined five P.Ws.
Namely, Abdul Hameed Constable P.W.1, Zubair Hayat HC/P.W.2, Muhammad Ehsan H.C./P.W.3 Tahir Mahmood Constable/P.W.4 and Shakeel Ahmad S.I./P.W.5.
5. P.W.1 had deposited the parcel of sample in the office of Chemical Examiner. P.W.3 recorded the formal F.I.R. Exh.P.A./1. P.W.4 Tahir Mahmood is the recovery witness of this case, whereas, P.W.5 shakeel Ahmad is the complainant and recovery witness. He also investigated the case.
6. When examined under section 342, Cr.P.C. The accused-appellant refuted all the allegations of prosecution and also denied the recovery of narcotics material planted upon him. The accused opted not to appear under section 340(2), Cr.P.C. As his own witness. He, however, produced defence evidence and in his defence one Abid Hussain had been produced as D.W.1 who deposed in his statement that Khaliq Jan accused-appellant. Is innocent and the narcotics material did not belong to him.
7. Learned counsel for the appellant argued that the complainant of the F.I.R. Is the Investigating Officer as well as recovery officer which is sufficient to vitiate the whole investigation of the case; that there is only evidence of police employees and no independent witness had been associated and thus, the violation of provisions of section 103, Cr.P.C has been made; that the recovery has been effected from the possession of one Abid D.W.1 which was fictitiously planted on the appellant because he refuted to fulfil the demand of complainant and his companions; that the complainant is not a witness of recovery because the recovery memo. Had been prepared by one Aslam A.S.-I.
And the same had not been signed by him. Learned counsel contended that meagre quantity of narcotics material was sent to the office of Chemical Examiner out of the total material recovered and as such the case against the appellant with regard to the recovery of five Kilograms 'Charas' is not proved. Further added that there are material discrepancies in the statements of P.Ws. Which makes the prosecution story doubtful. Learned counsel lastly argued that the prosecution had failed to bring home the guilt of the appellant beyond any shadow of doubt.
8. On the other hand, learned Special Prosecutor for ANF has vehemently opposed the arguments addressed by the learned counsel for the appellant and supported the judgment of trial Court, contending that the case against the appellant stands proved.
9. We have considered the arguments advanced by the learned counsel for the parties and perused the whole record with their kind assistance.
10. So far as the first argument of learned counsel for the appellant is concerned, it is suffice to say, that there is no legal prohibition fora police officer nor he is prohibited under the law to be a complainant if he A is a witness to the commission of an offence and also to be an Investigating Officer as laid down in the case of State through A.-G. Sindh v. Bashir and others (PLD 1997 SC 408).
11. As regards the second contention of learned counsel for the appellant that no independent witness had been associated, hence violation of section 103, Cr.P.C. Had been made, it is suffice to observe, that association of two or more respectable persons of the locality was not required as the provision of section 25 of C.N.S.A. 1997 had excluded the application of section 103, Cr.P.C. Where the recovery was made on a highway or roadsiders or from a running vehicle. Reliance is placed in this respect to cases of Abdul Rehman Mubarak v. State (2000 PCr.LJ 907), Muhammad Ali v. State (2000 Pak Crl.LJ 755) and Muhammad Amin v. State (1999 SCM R 1367).
12. In order to prove the recovery of narcotics material, the prosecution had produced two very important witnesses, namely, Tahir Mahmood Constable/P.W.4 and Shakeel Ahmad S.-I./P.W.5 who deposed quite in line with P.W.4 and there is concurrent statement of these two P.Ws. That: Tahir Mahmood P.W. When present at Mullan Mansoor Check Post where a Bus No.0092 came from Peshawar which was stopped and when inspected the accused Khaliq Jan was having a shopping bag of black colour in his lap who was produced before him (Shakeel) Investigating Officer and on search of said shopping bag 5 packets of 'charas' wrapped in the newspaper weighing five Kgs.
Was recovered.
13. There is no contradiction in the statements of P.Ws. With regard to the above statements made by them. P.W.5 had stated in his cross-examination that except the F.I.R./complaint, the remaining documents were prepared/written by Aslam A.S.-I. On his dictation and this fact had also been verified by P.W.4. The recovery of 10 grams 'Charas' was sent to analyst and the report of Chemical Examiner was in positive which is part of the record as Exh.P.E.
14. The recovery evidence supported. By the Chemical Examiner report is beyond doubt and confidence-inspiring. Furthermore, the accused-appellant had not challenged the nature of recovery substance being not 'Charas' or narcotics before the trial Court or this Court. Neither the parcel of recovered narcotics material had been objected to have been tampered with nor it was demanded by the appellant to open this parcel in Court to substantiate that it was other than the narcotics material. Further, no question was put to P.Ws. At the trial by the appellant that the remaining parcels of 'Charas' produced in the Court were of same nature. So much so, it had also not been prayed before the Court below that entire material be sent to the Chemical Examiner for report as to challenge that it was not a narcotics substance. In this respect reliance can be made to cases of Ali Muhammad v. State (2003 SCM R 54).
15. The factum of arrest of accused-appellant had not been denied. The prosecution witnesses who were police officials, had made consistent statement on material points and the appellant had failed to point out any discrepancy in their statements. Minor discrepancies which had been pointed out by the learned counsel for the appellant are not sufficient to discredit the statements of prosecution witnesses which were natural one.
16. The most important feature of the case is that the learned counsel for the appellant has not urged any rancour or animosity against the police officials/P.Ws. With the accused-appellant who was not known to them earlier and in such-like cases no presumption can be drawn that the police witnesses were lier. It is already settled law by the superior Courts that police witnesses are competent witnesses in the eyes of law and unless it could be demonstrated that police officials had any motive or reason to falsely implicate the accused, their testimony could not be discarded only because they happened to be employees of Police Department. Reliance in this respect can be made to case of Feroze Shah v. State (2002 PCr.LJ 1470).
17. In his statement made under section 342, Cr.P.C. The accused-appellant had taken the defence plea that "he was travelling in a bus with one Abid who was having a bag with him and both were alighted by the Excise staff wherefrom the possession of Abid huge quantity of narcotics was recovered. They were taken to P.S. Where by way of fictitious proceedings the recovered material was planted upon him". In his statement the appellant has admitted the presence in the bus and he alighted from said bus. So far as the plea of the appellant that he is innocent is concerned, the answer would be that D.W.1 no where stated before any higher police authority that the appellant had been involved falsely in this case and his "Charas" was planted upon him. So much so, Abid D.W. Had been booked in such-like narcotics cases on the allegation of recovery of one Kg.
'Charas'. During the trial of his case in defence he did not utter even a single word to the effect that six kilograms 'Charas' had been recovered from his possession. He, rather has denied the allegation of having one kilogram 'Charas' in his possession. His deposition as defence witness is an afterthought effort in connivance with the appellant. This belated stand of D.W.1 is not worth- reliance.
18. The onward transmission of 10 grams sample taken out of the total narcotics material recovered from the appellant to the office of Chemical Examiner by P.W.1 is also proved beyond any shadow of doubt. The report of the analyst received back was found in positive which has supported the prosecution story as well as recovery of narcotics in this case.
19. Pursuant to above discussion we find that prosecution has brought sufficient material on record to connect the appellant with the commission of crime and consequential guilt. The defence has miserably failed to extract any material discrepancies or contradictions from the statements of P.Ws. The appellant did not appear as his own witness as required under section 340(2), Cr.P.C. To contradict the prosecution story which is also fatal to him.
20. Having considered these circumstances and given our anxious consideration to all the aspects of the case we are unable to find any extenuating circumstances that can be urged in favour of the accused-appellant. We, therefore, maintain the conviction and sentence awarded to the accused- appellant by the learned trial Court. Resultantly, this appeal fails and is dismissed accordingly.