1. ' MUHAMMAD AFZAL SOOMRO, J.---Through this common judgment we intend to dispose of Criminal Appeal No,402/2006. Moved by appellants Shaukat Khan and Muhammad Ali, challenging the judgment dated 16-1-2006 whereby both the appellants have been convicted and sentenced to suffer rigorous imprisonment for ten (10) years, each, and pay fine of Rs,25,000, each, and in default to suffer further R.I. For one (1) year, each, giving benefit of section 382-B Cr.P.C. And Cr. Rev.
2. A.' No,48/2006 moved by applicant Tikka Khan, challenging the order dated 23-2-2006 whereby Oil Tanker, registered in the name of the applicant, being case property, has been confiscated.
3. ' The prosecution story as unfolded in the F.I.R. Is that on 17-8-2004 at about 5.00 a.m.
4. Complainant/Excise Inspector Shaukat Ali Shaikh of Excise Police Station, Sukkur, vide Entry No,33 of the Station Diary, proceeded along with his subordinate staff, by official mobile van bearing Registration No, 5005 towards Garrang Wah bridge at Shikarpur-Sukkur Road, for detecting excise offences. At about 8.00 a.m. While the complainant was present along with the said other Excise Officials at the said road near the said bridge, he saw one Oil Tanker bearing Registration No,TTA- 719, coming from Shikarpur side. However, the said tanker was got stopped by the complainant. The driver and his companion (cleaner), upon interrogation, disclosed their particulars as Shaukat Khan and Muhammad Ali, respectively, both residents of Sher Keera Taluka and District Peshawar, when persons of both of them were searched, Rs,2100 and N.I.C. Were secured from Shaukat Khan.
5. Thereafter, search of cabin of tanker was made from where registration and an insurance policy books along with a belty of Madeena Goods Transport New Truck Adda (Terminal) Quetta, in the name of Tikka Khan (applicant in Revision A. No,48/2006), a fitness certificate and a calibration chart in the name of Contractor of Universal Tanker Service were recovered. The complainant, thereafter, searched the rear part of said Oil Tanker and from the tank of the same secured two dark blue fibre containers containing 54 slabs of charas (weighing 64 Kgs and 800 grams). He separated four slabs from the same as sample for chemical examiner and sealed the same in rosy bag made of polyester fibre. He also sealed the remaining 50 slabs in two other rosy bags of polyester fibre and arrested both the accused persons, secured the said Oil Tanker as well as prepared such mashirnama and took both the accused persons along with said Oil Tanker, Charas and other articles to Excise Police Station Sukkur where F.I.R. As above, was registered whereafter statements of P.Ws. Were recorded and the said sample was sent to the Chemical Examiner for analysis and report and on completion of investigation challan against both the appellants was submitted for commission of offence under section 9(e) C.N.S. Act, 1997.
6. ' After framing of formal charge to which the appellants pleaded not guilty, the case proceeded and the prosecution in order to prove its case examined P.W.l/ complainant Shaukat Ali Shaikh as Exh.7, who produced copies of Entries Nos.33 and 34 of the station diary showing his departure from Excise Police Station Sukkur along with said other Excise Officials and return after arrest of the accused and the recovery of the case property as Exhs.7/1 and 7/2, F.I.R. As Exh.7/3, Report of Chemical Examiner as Exh.7/4, Registration Book of the said Oil Tanker (Article P/l), Insurance Policy (Article P/2) N.I.C. Of accused Shaukat (Article P/3). Currency Notes secured from him (Article P/4, unconsumed part of sample returned by Chemical Examiner (Article P/5), parcels containing remaining 50 (fifty) slabs of charas (Articles P/6 and P/7) and plastic container (Articles P/8 and P/9). The P.W.2 Dr. Muhammad Saleem as Exh.6, P.W.3 Muhammad Hanif as Exh.7, P.W.4 Faisal Hanif as Exh.8 and P.W.5 Investigating Officer Sub-Inspector ^ Muhammad Sabir as Exh.9, P.W.2, Fateh Muhammad as Exh.8, who produced the calibration chart and fitness certificate of the said Tanker (Articles P/10_and P/11) as well as photo copy of his 161 Cr.P.C., statement (Exh.8/1). The appellants in their statements recorded under section 342, Cr.P.C., vide Exhs.11 and 12, respectively, denied commission of offence and recovery of said charas from the said Tanker and pleaded innocence.
7. Appellant Shaukat Khan produced a Taisla' dated 19-6-2004 allegedly effected between his brother and him and one Mastan Khan and others as (Exh.11/1), photo copy of an application dated 20-6-2004, addressed to President of Pakistan and copy endorsed inter alia to S.H.O. Jackson Police Station Karachi for registration of the case against said Mastan Khan and others for allegedly kidnapping his brother Tikka Khan (owner of the Oil Tanker and applicant in Rev. A.
8. No,48/2006), F.I.Rs, Nos.6 and 10 of 2004 of Police Station Jackson dated 8-1-2004 registered against said Mastan Khan and another and Gulistan Khan, respectively, for commission of the offence under section 6/9(b) C.N.S. Act, 1997, as (Exh.11/4 and Exh.11/5) and tried to get him defended as follows:-- "One Mastan Khan, who is my villager, had abducted my brother. Tikka Khan, who is the owner of the said Oil Tanker No,TTA-719. Subsequently, the Nazim of the area got my said brother released, but the said Mastan Khan threatened to involve me in false cases. I produce faisla of Nazim as Exh.11/1. I also produce photo copy of an application submitted by me to President of Pakistan as Exh.11/2. I also produce photo copies of F.I.Rs, Nos.10/2004 and 6/2004 of PS Jackson as Exhs.11/3 and 11/4. I have been falsely implicated in this case at the instance of the said Mastan Khan. Nothing was recovered from the said Oil Tanker or from my possession. I am innocent."
9. ' Appellant Muhammad Ali adopted the statement of appellant Shaukat Khan and pleaded as under:-- "Co-accused Shaukat Khan is my maternal uncle. We have enmity with one Mastan Khan. Due to that, the excise officials have falsely involved the co-accused and me in this case. My further statement is same as given by co-accused Shaukat Khan and the same may be treated as my statement."
10. ' However, though both the appellants were asked to be examined under section 340(2) Cr.P.C. And produce their defence witness (es) but they refused to do so.
11. ' P.W.1/ complainant, Nazim Hussain, reiterated the contents of F.I.R. In his deposition. He states that on 17-8-2004 at about 5.00 a.m. He, vide Entry No,33 of the Station Diary, proceeded along with his subordinate staff, by Official Mobile Van bearing Registration No,5005 towards Garrang Wah bridge at Shikarpur-Sukkur Road, for detecting excise offences. He has further deposed that at about 8.00 a.m., while he was present along with the said other Excise Officials at the said road near the said bridge, he saw one Oil Tanker bearing Registration No,TTA-719, coming from Shikarpur side.
12. However, the said Tanker was got stopped by him. The driver and his companion (cleaner), upon interrogation, disclosed their particulars as Shaukat Khan and Muhammad Ali, respectively, both residents of Sher Keera Taluka and District Peshawar. When person of both of them were searched Rs,2100 and N.I.C. Were secured from Shaukat Khan. Thereafter, search of cabin of Tanker was made from where Registration and Insurance Policy Books along with a belty of Madeena Goods Transport New Truck Adda (Terminal) Quetta, in the name of Tikka Khan, a fitness certificate and a calibration chart in the name of contractor of Universal Tanker Service were recovered. He, thereafter, searched the rear part of said Oil Tanker and from the tank of the same secured two dark blue fibre containers containing 54 slabs of charas (weighing 64 kgs and 800 grams). He separated four slabs from the same as sample for Chemical Examiner and sealed the same in rosy bag made of polyester fibre. He also sealed the remaining 50 slabs in two other rosy bags of polyester fibre and arrested both the accused persons, secured the said Oil Tanker as well as prepared such mashirnama and took both the accused persons along with said Oil Tanker, Charas and other articles to Excise Police Station Sukkur where as above, was registered. He, thereafter, recorded statements of the witnesses' sent the said sample to the Chemical Examiner for analysis and report' and on completion of investigation submitted challan against both the appellants.
13. ' P.W .2, Fateh Muhammad, the evidence of P. W.1, Shaukat Ali Shaikh and produced the Calibration chart and fitness certificate of the said Oil Tanker. He has deposed that on 17-8-2004 while he was posted at Excise Police Station Sukkur as Excise Constable at about 500 hours, he accompanied Excise Inspector Shaukat Ali Shaikh and other Staff members for proceeding towards Garrang Wah bridge at Shikarpur-Sukkur Road, for detecting excise offences. He has further deposed that at about 8.00 a.m., while he was present along with Inspector Shaukat All Shaikh and said other Excise Officials at the said road near the said bridge, they saw one Oil Tanker bearing Registration No,TTA- 719, coming from Shikarpur side. However, the said Tanker was got stopped by them. The Driver and his companion (cleaner), upon interrogation, disclosed their particulars as Shaukat Khan and Muhammad Ali, respectively, both residents of Sher Keera Taluka and District Peshawar, when persons of both of them were searched, Rs,2100 and N.I.C. Were secured from Shaukat Khan.
14. Thereafter, search of, cabin of Tanker was made from where Registration and an Insurance Policy Books along with a belly of Madeena Goods Transport New Truck Adda (Terminal) Quetta, in the name of Tikka Khan, a fitness certificate and a Calibration chart in the name of Contractor of Universal Tanker Service were recovered. According to him, Inspector Shaukat Ali Shaikh, thereafter, searched the rear part of said Oil Tanker and from the tank of the same secured two dark blue fibre containers containing 54 slabs of charas (weighing 64 Kgs and 800 grams). The said Inspector separated four slabs from the same as sample for Chemical Examiner and sealed the same in rosy bag made of polyester fibre. He also sealed the remaining 50 slabs in two other rosy bags of polyester fibre and arrested both the accused persons, secured the said Oil Tanker as well as prepared such mashirnama and took both the accused persons along with said Oil Tanker, Charas and other articles to Excise Police Station Sukkur where F.I.R., as above was registered.
15. ' We have heard the learned counsel appearing for the appellants and learned counsel appearing on behalf of the State: ' It has been contended by the learned counsel for the appellants that the case against the appellants is false and they have been implicated with mala fide intention on the part of Excise Police. It has further been contended by the learned counsel for the appellants that the whole case of the prosecution rests on the evidence of complainant and his supporting witnesses/mashirs. It has further, been contended that whole 'case based upon alleged information given to police before registration of F.I.R. Such information is not admissible in the eyes of law. It has, further, been contended by the learned counsel for the appellants that the case of the prosecution is full of contradictions, suspicions and doubts together with the fact that the evidence produced by the prosecution is not confidence inspiring, hence cannot be formed a basis of conviction. It has, further, been contended by the learned counsel though enmity has been alleged by the appellant but the learned trial Court has not touched that point and without appreciating the, same has passed the impugned judgment in haste. It has, also, been contended that there is violation of section 103 Cr.P.C., as complainant Inspector Shaukat Ali Shaikh did not call any independent person to act as witness.
16. ' Learned counsel appearing on behalf of the State has supported the impugned judgment on the grounds that except the version of the appellants there is nothing on record to indicate that there was any previous enmity between the complainant and the appellants, hence there is no reason to disbelieve the evidence of the witnesses. It has further, been contended by the learned counsel for the State that provisions of section 103 Cr.P.C., do not apply to the facts and circumstances of this case for the reason that the search was not made in an occupied place.
17. ' We have considered the arguments of both the learned counsel and perused the record and are of the con1sidered view that the prosecution has proved its case beyond any reasonable doubt for the reasons that the vehicle from which the contraband articles were recovered belonged to brother of appellant Shaukat Khan who is maternal uncle of appellant Muhammad Ali was being plied by both the appellants.
18. ' So far as the pleas of the appellants in respect of enmity are concerned, the same have not been supported by any independent evidence except Faisla' and copy of application produced by the appellant Shaukat Khan also appear to be managed documents. They have not even examined themselves on Oath to disprove the charge or even did not lead any other evidence to rebut the prosecution case, which, in our view, stands fully established against them.
19. ' So far Revision application, moved by applicant Tikka Khan, is concerned, it may be observed here that although the applicant Tikka Khan himself was not made the accused but the record clearly shows that he was real. Brother of appellant Shaukat and the Tanker belonging to the applicant was only meant for carrying the liquid products but instead of that a considerable quantity of charas in two fibre drums was detected which had been concealed in the tank of the Tanker, in question. These factors led to the conclusion that the transportation of the narcotics was in the knowledge of the applicant. It has not been disclosed that how and when the said Tanker was handed over to the appellant Shaukat Khan. The use of the Tanker, in the circumstances, has been proved together with the fact that the applicant Tikka Khan was in the knowledge of such use.
20. ' In view of foregoing reasons we dismiss both the Criminal Appeals bearing B No,402/2006 and Crl.
21. Rev. A. No,48/2006.