IJAZ-UL-HASSAN KHAN, J.----Appellant Sardar Khan was convicted by the learned Judge, Special Court (CNS) N.-W.F.P., Peshawar, vide judgment dated 18-12-2004 for an offence under section 9(c) of the Control of Narcotic Substances .Act, 1997 and was sentenced to suffer life imprisonment with a fine of Rs,2,00,000 (two lac) or in default thereof to undergo two years S.I., with benefit of section 382-B Cr. P. C .
2. Feeling aggrieved, the appellant has challenged his conviction and sentence through the present Criminal Appeal No,25 of 2005.
3. On the basis of prior tip off stated to have been received by the officials of ANF Peshawar on 15- 12-2003 that on the said date huge quantity of narcotics will be smuggled/transported from Illaqa `Ghair' to the down country i,e, Punjab through Motor Car No,A-1125 Mansehra, a `Naka Bandi' was conducted at G.T. Road Aman Gargh Bridge, Nowshera. At about 1715 hours, aforesaid vehicle was sighted coming from Peshawar side. A signal was given to driver to stop the vehicle. The vehicle was stopped and driver and the person sitting with him on front seat, jumped from the vehicle, started firing at ANF party and made an attempt to make good their escape. The ANF party also started firing in retaliation. During this process, one of the accused person got hit and sustained injury on his thigh. On inquiry the injured disclosed his name as Sardar Khan son of Roshan Khan, resident of Deh Musa Killi, District Charsadda. The injured was rushed to CMH Nowshera for treatment. However, the companion of the injured succeeded to run away from the spot. Due to want of adequate facilities at the spot, the Motor Car in question was brought to the police station.
A thorough search of the vehicle led to recovery of 325 packets of Charas `Pukhta', 40 packets of `garda' and 7 packets of opium wrapped in plastic envelopes. On weighing, the charas was found 367.200 K.Gs, Charas 'Garda' 520/800 K.Gs. And opium 7 K.Gs. A meagre quantity was separated from the recovered contraband for Chemical Examination. A Klashnikov and a purse containing cash amount and NIC of the appellant were also recovered from personal possession of the appellant. A case was accordingly registered vide F.I.R No,28 dated 15-12-2003 at the instance of Inspector Khadim Hussain complainant.
4. Charge against the appellant was framed to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case and substantiate the charge, examined three witnesses in all viz. Inspector Samin Jan Khan, Inspector Rana Khadim Hussain and FC Abdul Wahab. The appellant in his statement recorded under section 342, Cr.P.0 repudiated the prosecution allegations and claimed to have been falsely charged. In answer to a question as to what is his statement and why he has been charged, the appellant stated that "I am labourer by profession and used to earn my livelihood through labour. During the day of present occurrence, I was residing with my uncle namely Mir Hussain resident of Nowshera. On the day of present occurrence i,e, 15-12-2003 I have gone for labour to Aman Garh Colony Nowshera and after working there I left for my residence at 4-00 p.m., when I reached at Amangarh Bridge there was a bus stop and so I was waiting for the vehicle meanwhile the motor car and police vehicle appeared there and the person sitting inside the motor car and that of the police have started firing at each other the people nearby collected on the spot and I have got injured through firing of police. I then became senseless and then I regained my senses when I was lying on bed at KTH Peshawar. I am innocent and falsely involved due to the reason that I may refrain to approach to the authorities about the unlawful act of the police as I was injured through their firing". In defence he appeared under section 340 Cr.P.0 and produced his uncle Mir Hassan to prove his innocence and false implication for the reasons mentioned above.
5. Mr. Jehangir Khan Afridi, Advocate, learned counsel for the appellant contended, inter alia, that the order/judgment of the learned trial Court is against the law and facts on record, hence untenable; that the conviction and sentence of appellant is legally and factually not maintainable; that the conclusion of the learned Court below on all crucial features of the case are imaginary and speculative rather than on solid tenable evidence; that all the witnesses are official witnesses, there is no impartial independent witnesses to support the prosecution version that the learned trial Court has misread and miss appreciated the evidence; that there is no cogent evidence on record connecting the appellant with the commission of alleged offence and that there are glaring contradictions in the statements of the prosecution witnesses of which the trial Court has not taken notice of more so the defence version which was more plausible and appealable was brushed aside without cogent reasons. The learned counsel also reiterated that the recovery was not effected from the appellant but from Motor Car No,A-1125 Mansehra and as such the appellant could not be held guilty of the offence alleged. He further maintained that the appellant was fired upon and hit by ANF without any rhyme or reason and to conceal their crime they falsely implicated the appellant in the present case. The report of the Chemical Examiner was also brought under challenge and it was maintained that the report is incomplete and not worth reliance. In this regard reliance was placed on Muhammad Ashraf petitioner v. Sultan and 5 others respondents (1997 SCMR 441), Tariq Parvez v. The State (1995 SCMR 1345) and Johar Ali and another v. The State (2003 PCr.LJ 680 Peshawar).
6. As against that Mr. Tariq Khan Kakar, Advocate, appearing on behalf of. ANF, supported the impugned order of conviction maintaining that sufficient material has been brought on the file to connect the appellant with the commission of offence and the plea raised by the appellant is an afterthought and cannot be taken into consideration.
7. Arguments of the learned counsel for the parties have been heard in detail and the material on record has been gone through minutely with their assistance.
8. The prosecution in order to prove the factum of apprehension of the appellant and recovery of contraband material from the secret cavities of the car in question, has produced two witnesses, namely, Inspector Rana Khadim Hussain (P.W.2) and FC Abdul Wahab (P.W.3). We have noticed that though these witnesses were subjected to lengthy cross-examination but nothing favourable could be gained from them. They are consistent on all material particulars and their statements are worthy of credence. The contention of the learned appellant's counsel that the appellant is innocent and falsely charged in the present case, has no substance as he could not show that the statements of these witnesses were motivated by or enmity towards the appellant. The testimony of these witnesses inspires confidence and has been rightly relied upon by the trial Court. The learned counsel has not been able to point any discrepancy or flaw creating dent in the prosecution story. The discrepancies highlighted by the learned counsel in the statements of prosecution witnesses, are minor in nature and cannot be considered sufficient to vitiate the trial.
Contradiction means negation of version of the prosecution case. Mere discrepancies in the details of the facts do not amount to contradiction. No Contradictory version of prosecution witnesses is pointed out nor is it found from the perusal of their statements.
9. The argument of the learned counsel for the appellant regarding various hats simultaneously worn by the Investigating Officer, has also failed to impress us. There is no legal prohibition for a police officer to be a complainant if he is a witness to the commission of an offence and C also to be an Investigating Officer so long as it does not in any way, prejudice the accused person, as held by this Court in Mashal Khan appellant v. The State respondent (2005 PCr.L.J 254 Peshawar).
10. The submission that compliance of the provision of section 103 Cr.P.C., was not made in the case as no two respectable persons of the locality were associated, has no force, firstly, for the reason that provision of section 103, Cr.P.C., has been excluded under the provision of section 25 of the Control of Narcotics Substances Act, 1997 and the provision of section 20 of the Act are directory in nature, its noncompliance cannot be considered as a strong ground for holding that the trial of the appellant is bad in the eye of law, whereas on the other, it is not denied that the main aim and object of enacting of section 103, Cr.P.C., is to ensure that the search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression. It never meant to disbelieve the statements of official witnesses in any other circumstance. There is consistent opinion of the superior Courts that police officials are competent witnesses of recovery memo. And their statement cannot be discarded merely for the reason that they belong to police department, as held in Fida Jan v The State 2001 SCMR 36 and Mian Gul Bacha Khan and another v. The State PLD 2004 Pesh. 246.
11. It is an accepted principle of law that when accused at a criminal trial takes a specific plea, the onus invariably shifts and he is required to produce evidence and prove his innocence or at least, his plea should be F supported by the attending circumstances and it should not be unfounded altogether. In the instance case the plea taken by the appellant is without foundation and has not been satisfactorily proved. Nothing has been G brought on record to demonstrate that the appellant was working with a contractor as alleged by him on daily wages and after finishing the work, he was on the way to the house of his uncle when he was fired at by ANF staff and falsely implicated in this case in order to screen their sin. It may be pertinently mentioned here that contractor with whom the appellant claimed to have been working, has not been produced at the' trial in support of the plea. In ordinary law when best evidence is not' produced in the Court, the inference is to be drawn against the part withholding such evidence.
12. The objection of the learned appellant's counsel that the Chemical Examiner has only given the report about the samples and the whole property was not examined by the Chemical Examiner, is equally devoid of force. It is not the requirement of law that the entire bulk recovered from an accused person should be sent to Chemical Examiner for opinion and report. A meagre quantity separated out of the lot sent for analysis is considered sufficient to serve the purpose and on this ground alone admissibility of the report cannot be challenged. We, after assessm ent and evaluation of entire evidence on record, are satisfied about involvement of the appellant in the offence and consequential guilt. We find that the conclusion drawn and reasons advanced by the learned trial Court show fair evaluation of evidence which is in accordance with the settled principles of criminal justice. We find no illegality or infirmity in the impugned judgment warranting interference of this Court. The appeal fails which is hereby dismissed and the impugned judgment of conviction is maintained.