' TARIQ SHAMIM, J.---Appellant, Gul Badshah known as Saadat Khan, was tried by the learned Additional Sessions Judge/Special Judge CNS, Taxila, District Rawalpindi, in case bearing FIR.
No,389 of 2000, dated 24-8-2000, registered with Police Station'Taxila, District Rawalpindi, for offence under Article 9(c) of Control of Narcotic Substances Act, 1997. The learned trial Court, vide its judgment, dated 13-4-2006, found the appellant guilty of the said charge, convicted him under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to death with a fine of Rs,100,000 and in default to undergo rigorous imprisonment for one year.
2. Precisely the allegation against the appellant, according to the F.I.R. (Exh.PF/1), is that on 24-8- 2000, Masood Bashir Warraich Excise Inspector, complainant (P.W.5), Arshad Mahmood Inspector (P.W.4), and other police officials were present at the Excise Check Post, Margallah for the purposes of checking narcotics when they received spy information that a truck carrying a huge quantity of narcotic substances was coming from Peshawar side. Consequently, truck bearing. Registration No,DR-3649 en route from Peshawar was signaled to stop but the driver instead of stopping the vehicle tried to escape who was stopped by the officials with the help of Raja Fakhar Sultan, A.S.P.
With much difficulty. On inquiry, the driver of the truck disclosed his name as Gul Badshah. The bricks loaded on the truck were removed and after much search, 171 kilograms of Charas, *70 kilograms of opium and 3 kilograms of heroin was recovered from secret cavities of the truck. 5 kilograms of Charas, 3 kilograms of opium and 300 grams of heroin were separated for chemical analysis. Two repeater shot guns .12 bore were also recovered from the thick. The truck and the registration book thereof were also taken into possession. The Charas P-1, opium P-2, heroin P-3, guns P-4 and 5, truck P-6 and the registration book P-7 were taken into possession by the police vide recovery memos. Exh.PA to Exh.PE which were attested by Arshad Mahmood Inspector (P.W.4), Mahmood Sultan and Muhammad Asghar Excise Constables. The complaint (Exh.PF) as well as the case property was handed over by Masood Bashir Warraich, Excise Inspector to Arshad Mahmood Inspector (P.W.4) for further proceedings. On the basis of the complaint formal F.I.R. (Exh.PF/1) was recorded by Muhammad Aslam (P.W.3). The case property was handed over to the Moharrar Malkhana for safe custody by Arshad Mahmood Inspector (P.W.4). The case property was kept in custody in the Malkhana and subsequently the samples were dispatched to the Chemical Examiner Rawalpindi for analysis. After investigation, the appellant was challaned in this case.
3. On 10-4-2002, charge under section 9(c) of Control of Narcotic Substances Act, 1997 was framed against the appellant to which he pleaded not guilty and claimed trial.,The prosecution in order to prove its case produced Muhammad Sultan Constable (P.W.1) a recovery witness, Habib-ur- Rehman, A.S.-I. (P.W.2.) deposed about the receipt of case property for safe custody in Malkhana and on 28-8-2000 he sent the parcels of sample charas, opium and heroin for chemical analysis through Nazir Ahmad, A S.-I., Muhammad Aslam Sub-Inspector (P.W.3) drafted the formal F.I.R.
(Exh.PF/1) on the basis of complaint (Exh.PF) sent to him by Arshad Mahmood Inspector, Arshad Mahmood Inspector/S.H.O., Police Station Taxila (P.W.4) was handed over the complaint (Exh.PF) as well as the case property by Maso.Od Bashir Warraich, Excise Inspector for further proceedings, he prepared the rough site plan Exh.PG, recorded the statements of the recovery witnesses under section 161, Cr.P.C. As well as the version of the accused/appellant; arrested the accused/appellant in the case, handed over the case property to the Moharrar Malkhana for safe custody, obtained physical remand of the accused and thereafter, sent him to jail on judicial remand, recorded the statement of Nazir Ahmad, A.S.-I. And Habib-ur-Rehman Head Constable/Moharrar Malakhana for the dispatch of sample parcels to the office of the Chemical Examiner, Rawalpindi and during investigation he found the accused/appellant involved in the case and challaned him accordingly and Masood Bashir Warraich, A.E.T.O. (P.W.5) recovered narcotic substances, separated the samples, made them into sealed parcels and took them into possession along with two shot guns and registration book vide recovery memos. Exh.PA to Exh.PE under the attestation of the prosecution witnesses, drafted the complaint (Exh.PF) and handed over the same along with the case property, recovery memos. And the person of the accused to Arshad Mahmood Inspector for further proceedings. The Deputy District Attorney after tendering in evidence reports of the Chemical Examiner regarding Charas (Exh.PH), regarding opium (Exh.P1) and regarding heroin (Exh.PJ) closed the prosecution case.
4. The statement of the appellant was recorded under section 342, Cr.P.C. In response to the question "Why this case against you and why the P.Ws. Deposed against you?" the appellant replied as under:-- "I was a labourer on the truck for loading and un-loading the bricks and the case property was recovered from the secret cavities of the truck, for which, I have no knowledge of it."
' The appellant did not opt to appear as his own witness in disproof of the allegations levelled against him as required under section 340(2), Cr.P.C. However, he produced form of NADRA (Exh.DA), copy of the identity card of Saqeeb (Exh.DB) and copy of his identity card (Exh.DC) in this defence.
5. The learned trial Court after concluding the trial convicted and sentenced the appellant as stated above. The appellant has challenged his conviction and sentence through the instant appeal whereas the learned trial Court has sent Capital Sentence Reference No,6-N of 2006 for confirmation of death sentence awarded to the appellant. Both the matters are being decided together through this single judgment.
6. The learned counsel for the appellant contended that the prosecution had failed to prove its case beyond all reasonable doubts against the appellant whose name was not Gul Badshah but it was Saadat Khan; that the appellant had no concern with the recovered substance as the owner of the truck ways Khayal Badshah and the truck was being driven by Gul Badshah; that after a bargain in which Rs,850,000 exchanged hands, the real culprit was let off by the excise officials; that the appellant was only a loader who was on the truck for the purposes to unloading bricks and that the appellant had no knowledge of narcotics concealed in secret cavities of the truck.
7. On the other hand, the learned Additional Prosecutor-General Punjab contended that the appellant was apprehended at the spot who disclosed his name as Gul Badshah; that the truck was being driven by the appellant and in view thereof, he was directly responsible for the recovered contraband; that the report of the Chemical Examiner was returned in the positive; that the appellant had not challenged the recovery of narcotics or disputed his presence at the spot; that Muhammad Sultan Constable (P.W.1), who was a witness of recovery, Habib-ur-Rehman, A.S.-I.
(P.W.2) and Muhammad Aslam (P.W.3) were not cross-examined by the appellant thus, he had conceded to the statements, made by the said witnesses at the trial and that in view of the overwhelming evidence against the appellant he had rightly been convicted and sentenced by the learned trial Court.
8. We have heard the learned counsel for the appellant and the learned Additional Prosecutor- General Punjab and have gone through the record with their able assistance.
9. On 24-8-2000, Arshad Mahmood Inspector (P.W.4), Masood Bashir Warraich Excise Inspector (P.W.5) and other police officials were present at the Excise Check Post, Margallah for the purposes of checking narcotics when they received spy information that a truck carrying a huge quantity of narcotic substances was coming from Peshawar. Consequently, truck bearing Registration No,DR- 3649 en route from Peshawar was signaled to stop but the driver instead of stopping the vehicle attempted to escape and was subsequently stopped by the witnesses with much difficulty with the help of Raja Fakhar Sultan, A.S.P., who was also present at the place of occurrence. On inquiry, the driver of the truck disclosed his name as Gul Badshah. The bricks loaded on the truck were removed and after some search, 171 kilograms of Charas, 70 kilograms of opium and 3 kilograms of heroin was recovered from secret cavities of the truck. Two .12 bore repeater shot guns were also recovered from the truck. The Charas P-1, opium P-2, heroin P-3, guns P-4 and 5, truck P-6 and the registration book P-7 were taken into possession by the police vide recovery memos. Exh.PA to Exh.PE which were attested by Arshad Mahmood inspector (P.W.4) and Mahmood Sultan Constable.
The complaint (Exh.PF) as well as the case property was handed over to Arshad Mahmood (P.W.4) for further proceedings by Masood Bashir Warraich, Excise Inspector. On the basis of the complaint formal F.I.R. (Exh.PF/1) was recorded by Muhammad Aslam (P.W.3). The case property was handed over to the Moharrar Malkhana for .Safe custody by Arshad Mahmood (P.W.4). In the investigation, the appellant was found fully implicated in the crime and report under section 173, Cr.P.C. Was submitted against the appellant who claimed trial and after recording of prosecution evidence and the statement of the appellant under section 342, Cr.P.C., the appellant was convicted as stated above.
10. It has been noticed that Muhammad Sultan Constable (P.W.1) who had witnessed the recovery of contraband narcotic from the truk, Habib-ur-Rehman, A.S.-I. (P.W.2) who had kept the narcotic in safe custody in Malkhana and had handed over the sealed parcels of heroin, opium and Charas to Nazir Ahmad, A.S.-I., for onward transmission to the office of the Chemical Examiner, Rawalpindi and the scribe of the F.I.R. (Exh.PF/1) Muhammad Aslam (P.W.3) were not cross-examined by the appellant despite being given an opportunity in the said respect. Insofar as cross-examination of Arshad Mahmood (P.W.4) and Masood Bashir Warraich (P.W.5) is concerned, essentially the same related to the identification of the appellant who claimed to be Saadat Khan and not Gul Badshah.
According to the learned counsel for the appellant it was a case of substitution as the appellant was Saadat Khan and not Gul Badshah as per the form (Exh.DA) and the National Identity Card of the appellant (Exh.DC). It was further argued on behalf of the appellant that the appellant was present on the truck being a loader of bricks and that in fact the real culprits had been let off by the officials after obtaining Rs,850,000. We are afraid the arguments advanced on behalf of the appellant are without substance for the reasons that the appellant was apprehended by the complainant and others from the spot and on inquiry he disclosed his name as Gul Badshah thus, the complaint was drafted on the basis of information provided by the appellant who was apprehended by the police while driving the truck from which huge quantity of contraband narcotic was recovered. Since he was not carrying any identification papers on his person therefore, the witnesses had no option but to accept the information provided by the appellant as to his name and parentage etc. The identity card was produced on behalf of the appellant for the first time when his statement was recorded under section 342, Cr.P.C. By the learned trial Court.
Arshad Mahmood Inspector (P.W.4) in reply to a question put to him in the cross-examination stated as under:-- "At the time of his arrest, I wrote the particulars of the accused whatsoever were stated by him to me."
' To another question he replied:-- "The truck was being driven by the accused. I prepared Fard Shinakht' of the accused."
' Masood Bashir Warraich, Excise Inspector (P.W.5) in response to a question put to him by the defence stated as under:- "The only one person, accused present in Court, was present in the truck. I have verified his name and particulars at that time. It is incorrect that the person who was apprehended told me his name as Saadat Ullah Khan. It is incorrect to suggest that I had let off the real culprit namely Gul Badshah and had involved the present accused in this case due to ulterior motives and considerations. "
' Thus, all the suggestions put to the witnesses with regard to the substitution of the appellant and that the appellant being Saadat Khan and not Gul Badshah were repelled by the witnesses. At this juncture it would be pertinent to refer to the statement made by the appellant under section 342, Cr.P.C., the relevant portion whereof is reproduced hereunder:-- "I was a labourer on the truck for loading and un-loading the bricks and the case property was recovered from the secret cavities of the truck, for which, I had no knowledge of it."
11. From the above statement, it is proved that the appellant was present at the time of recovery of narcotic substances from the truck as he had admitted that he was present on the truck being a loader of bricks. The recovery of narcotic substances from the truck is also A established from the statement made by the appellant under section 342, Cr.P.C. And by not cross-examining Muhammad Sultan Constable (P.W.1) recovery witness, the appellant has accepted the statement made by him as to his presence at the place of occurrence and the recovery of narcotic substances from the secret cavities of the truck being driven by him.
12. Five kilograms of Charas, three kilograms of opium and 300 grams of heroin was separated by the complainant for the purposes of chemical analysis. The result of the samples was received from the Chemical Examiner vide reports Exh.PH., Exh.PI and Exh.PJ and all the tests for identification of Charas, opium and heroin were in the positive thus, it was established beyond any doubt that the substances recovered from the possession of the appellant were narcotics substances.
13. Insofar as the arguments advanced by the learned counsel for the appellant that there was gross violation of mandatory provisions of sections 20 and 21 of Control of Narcotic Substances Act, 1997 is concerned, it has been held by the Honourable Supreme Court of Pakistan in the case of Zafar v. The State (2008 SCM R 1254) that the provisions of sections 20 and 21 are not mandatory but in fact directory C in nature and non-observance thereof would not vitiate the trial. Even otherwise, the recovery was effected from a truck therefore, there was no occasion for the complainant to associate members from the locality with the recovery proceedings. Even otherwise, as has been held by the Honourable Supreme Court of Pakistan in a number of cases the police and excise officials are as good witnesses as any other. Further, the witnesses had no motive, r enmity with the appellant to falsely D implicate him in the crime. Obviously such a huge quantity of contraband narcotic could not have been planted by the witnesses on the appellant.
14. It was also argued by the learned counsel for the appellant that the complainant and the investigator of the case is one and the same person which was contrary to the law. In the case of State through Advocate-General, Sindh v. Bashir and others (PLD 1997 SC 408) it was observed by the Honourable Supreme Court of Pakistan that the Investigating Officer can be complainant as well as witness at the same time without any adverse effect on the prosecution case. Be that as it may, the fact remains that in the instant case the complainant has not E investigated the case himself and in fact the case property and the recovery memos. As well as the appellant was handed over by the complainant Masood Bashir Warraich (P.W.5) to Arshad Mahmood (P.W.4) immediately after the occurrence who thereafter conducted an independent investigation of the case and challaned the appellant.
15. Insofar as the evidence of the witnesses is concerned, we have found the same to be in conformity with each other in all material aspects of the case. The witnesses are consistent and unanimous about the recovery of narcotic substances from the truck which was being driven by the appellant and all other material particulars of the case.
16. Now adverting to the defence plea partly discussed in the earlier part of the judgment, we have observed that the appellant had admitted being a witness to the alleged bargain between the police and the real culprit on receipt of Rs,8,50,000; that no effort was made by the appellant during the investigation as well as at the trial to bring on the record the existence of another person named Gul Badshah son of Muhammad Shah; that the appellant had conceded about his presence in the truck as he had shown himself to be the loader of bricks; that immediately after the arrest of the accused Fard Shinakhat was prepared by Arshad Mahamood (P.W.4) wherein the particulars of the apprehended person as well as his description was duly recorded; that the particulars given in the Saza slip tally with the physical description of the appellant; that the truck was found loaded with bricks which obviously leads to the presumption that the bricks had been deliberately loaded to cover up the transportation of narcotics and that under section 29 of the Control of Narcotic Substances Act, 1997 presumption is attached to the criminal liability of a person from whose possession narcotic substance is G recovered, the appellant had failed to rebut the presumption against him thus, he is responsible for possessing illicit narcotic substances.
17. From the above discussion, it is concluded that Gul Badshah appellant also known as Saadat Khan was in possession of illicit Charas, opium and heroin for the purposes of transportation from Peshawar for its sale thus, he was rightly convicted and sentenced by the learned trial Court on the basis of overwhelming evidence produced at the trial by the prosecution against him.
18. In sequel to the above, we Dismiss the appeal filed by Gul Badshah also known as Saadat Khan while maintaining the conviction and sentence awarded to him by the learned trial Court. The death sentence is Confirmed and the Capital Sentence Reference is answered in the Affirmative.