Muhammad Akhtar Shabbir, J.--Petitioners seek leave to appeal from the impugned judgment of the Peshawar High Court, Peshawar dated 16.11.2005 whereby the Criminal Appeals No, 672, 676 of 2004, filed by the petitioners were dismissed and conviction and sentence under Section 9(c) of the Control of Narcotics Substances Act, 1997 (hereinafter referred to as the Act, 1997) to life imprisonment with fine of Rs, Five lacs each or in default thereof further five years S.I with benefit of Section 382-B Cr.P.0 passed by Judge, Special Court (CNS) Peshawar at Kohat Camp, was maintained.
2. Brief facts of the. case as disclosed in the F.I.R are that. Regional Director ANF Peshawar, Shahidullah Jan on receipt of spy information that huge quantity of narcotics material would be smuggled through the Suzuki Motor Car No, LHV-7361 to Punjab, constituted a Police party consisting of AD Rehmat Khan, Incharge Police Station ANF Kohat, including complaining inspector Zarin Khan and others to intercept the vehicle. The raiding party conducted nakabandi near Police Station Jarma, Kohat-Bannu Road. At about 18:30 hours a vehicle, Suzuki Motor Car No, LHV-7361, coming from Kohat side was stopped and checked. The Police party found two men and a women sitting in the car. On search of the vehicle 26 packets of charas and 10 packets of opium concealed in the secret cavities of the dickey of the car were recovered and on weightment charas was found 28 kgs and opium 12 kgs. Four grams from each packet was separated and secured into two sealed packets for onward transmission to the chemical examiner. On asking the Driver of the car disclosed his name as Muhammad Mushtaq son of Gul Rehman and person sitting with him on front seat introduced himself as Muhammad Saleem, women sitting in the car was Zuhra Bibi wife of Muhammad Shoaib. After completion of investigation of the case, AD Rehmat Khan, PW-2, sent report under Section 173 Cr.P.0 and challaned the accused to the Court where charge sheet was framed against the accused-petitioners. They denied the charge and claimed the trial.
3. During the trial, the prosecution had produced six witnesses namely HC Nazir Azam, PW-1, AD Rehmat Khan, PW-2, Judicial Magistrate Muhammad Aslam Khan, PW-3, F.0 Matti-ur-Rehman, PW- 4, DFC Ghuncha Gul, PW-5 and Inspector Zarin Khan, PW-6. After close of the prosecution evidence, statements of the petitioners under Section 342 Cr.P.0 were recorded where they claimed to be innocent and having been involved falsely. None of the petitioner appeared as his own witness in defence under Section 340(2) Cr.P.C. At the_ conclusion of the trial of the case, learned trial Judge appraised the evidence available on the file of the case, found the petitioners guilty of the offence and, thus, convicted them. However, the lady accused Mst. Zuhra Bibi was acquitted from the charge.
4. Learned counsel for the petitioners argued that the conviction had been passed on the basis of confessional statements of the petitioners and that these confessions were not made in accordance with the requirements of the law and thus have no evidentiary value. He further contended that the recovered narcotics material (the case property i,e, charas, opium and the motor car alleged to have been used in the commission of the crime) were not produced before the trial Court at the time of the trial. He also contended that at the time of alleged recovery of narcotics material, no public witness had been associated. Thus, the whole process of recovery was made in violation of Section 103 Cr. P.C. While on the other hand, Qari Abdul Rashid, learned ASC for the State vehemently opposed the arguments of the learned counsel for the petitioner and supported the judgment of the trial as well as the High Court.
5. We have heard the arguments of the learned counsel for the parties and perused the record with their assistance. Mr. Muhammad Aslam Khan, Civil Judge-I/Judicial Magistrate Kohat, PS-3, deposed that on 22.9.1999, he recorded confessional statements of petitioners-Muhammad Saleem and Muhammad Mushtaq. From perusal of the confessional statements of the petitioners recorded by PW-3, it reveals that no sufficient time was provided to the petitioners to think over before making such statements and there is no certificate of verification by the magistrate that they were asked to sit and think over the matter cool-mindedly as the statements can be used against them. It is settled principle by the superior Court that the record should contain full account of the occurrence and showing the voluntariness of the confession because the purpose behind the preliminary recording of statement is not merely to satisfy the Magistrate but also the Court who will hear and decide the case whereas in the instant case, neither the record nor the statement of the Magistrate PW-3 recorded in the Court shows that the accused-petitioners were given sufficient time to compose themselves. It has been held in State vs. Muhammad Naseer (1993 SCM R 1822) that where the record shows that the accused hardly had any time at his disposal to think over before recording his confessional statement, such confessional statement would not be held voluntary.
6. The prosecution alongwith confessional statement of the accused-petitioners to prove its case also produced PW-2-Rehmat Khan, AD, PS ANF Kohat, Matti-ur-Rehman, FC, PW-4, who is witnesses of recovery memo, PW-6-Zarin Khan, Inspector, in whose presence the vehicle used in the commission of the crime, Suzuki Car No, LHV-7361 was stopped, checked and narcotics material weighting 28 kgs charas and 12 kgs opium was recovered and taken into possession. These witnesses were subject to lengthy cross examinations and despite that they made consistent statements on material points. One of the coaccused- Muhammad Mushtaq, Driver of the vehicle being aware of the presence of charas and opium being transported on the car, failed to refute the allegation leveled against him. No enmity or grudge have been alleged against the recovery witnesses for falsely implicating the accused-petitioners in the case. Admittedly, prosecution witnesses have been cross-examined by the defence counsel but none have been elicited which could detract from their statements.
7. As to the arguments of the learned counsel for the petitioners that no public witnesses had been joined at the time of recovery of narcotics material, the answer would be that the Police officials are also competent witnesses and their testimony could not be discarded merely for the reason that they were employees of the force. Reliance in this context can be placed to case of Shoukat Khan v. State (2003 P.Cr.L.J 324), Muhammad Azam v. State (PLD 1996 SC 67).
8. So far as the objection of learned counsel for the petitioners that the case property, the remaining narcotics material i,e, charas and opium was not produced in the Court, the accused- petitioners had not challenged the nature of recovery substances being "charas" and "opium' before the trial Court or the High Court. They can not now turn around that the recovered material which was not produced at the time of trial of the case in the Court was other than the narcotics.
The prosecution witnesses when examined at the trial were not even suggested by the petitioners to produce remaining case property in the Court. It was neither objected nor prayed before the Court that entire case property may be sent to the chemical examiner for report to challenge that it was not the narcotics substance. The objection can not be raised now at this stage before this Court. Reliance can be placed in this context to case of Ali Muhammad v. State (2003 SCM R 54).
The argument of the learned counsel for the petitioners with regard to the non compliance of provision of Section 103 Cr.P.0 has also no force because application of Section 103 Cr.P.0 to the offence under the Control of Narcotic Substances Act, 1997 has been excluded by Section 25 of the Act. The relevant provision is as under:- "25. Mode of making searches and arrest:--The provisions of the Code of Criminal Procedure, 1898, except those of Section 103, shall, mutatis mutandis, apply to all searches and arrests insofar as they are no inconsistent with the provisions of Sections 20, 21, 22 and 23 to all warrants issued and arrest and searches made under these sections."
9. The argument is further strengthen by the dictum laid down in the case State v. Muhammad Amin (1999 SCM R 1367) and. Muhammad Hanif v. State (2003 SCM R 1237). The relevant portion of this judgment is reproduced as under:-- The contention concerning violation of Section 103 Cr.P.0 seems to be fallacious when examined in the light of provisions as contained in Section 25 of the Act which provides exclusion of Section 103, Cr.P.C. Even otherwise the reluctance of general public to become witness in such-like cases has be now become a judicially recognized fact and there is no option left but to consider the statement of an official witness as no legal bar has been imposed in this regard.
The Police officials are equally good witnesses and could be relied if their testimony remains unshattered during cross examination. In this regard reference can be made to Muhammad Naeem v. State (1992 SCM R 1617), Muhammad v. State (PLD 1981 SC 635)."
10. The Magistrate PW-3 failed to comply with the requirements of recording confessional statements of accused as provided under Section 164/364 Cr.P.C. the defect in recording the confessional statement of the accused-petitioner is so vital that this evidence can not be considered and on the rule of caution and prudence, in the circumstances, this piece of evidence must be ruled out of consideration.
11.After excluding the confessional statements of the petitioners, the Court has to look for other evidence and material on record to determine the responsibility and guilt of the accused- petitioners. The prosecution by producing other material witnesses on cross-examination, recovery memo and report of chemical examiner has been successful to establish the guilt of the accused- petitioners to the hilt. Evidence of the prosecution witnesses is straight, natural and reliable which was not shaken in any way by the defence. No ill will or animosity against the prosecution witnesses/Police employees before the occurrence has been pointed out or existed prior to the said occurrence.
12.Learned counsel for the petitioner has miserably failed to point out any error of law or misreading of evidence in the impugned judgment of Peshawar High Court which can result into miscarriage of justice.
13.For the foregoing facts, reasons and circumstances, we find not merit in this petition which is dismissed and leave to appeal is refused.