1. ' ARSHAD NOOR KHAN J.---- By this common judgment we intend to dispose of Criminal Jail Appeal No,D-50 of 2007, Criminal Appeals Nos.D-58 and 59 of 2007 as the said appeals have arisen out against the same judgment passed by the learned Special Judge, Narcotics Ghotki.
2. ' By these appeals, the appellants have challenged their conviction and sentence recorded by the learned Special Judge, Narcotics Ghotki, who convicted and sentenced the appellants to suffer life imprisonment and fine of Rs,200,000 each under section 9(c) of the Control of Narcotic Substances Act, 1997 and in case of default in payment of fine, they shall suffer further S.I. For six months with benefit of section 382-B, Cr.P.C.
3. ' The case of the prosecution, as per F.I.R. Is that on 22-6-2004 the complainant Rasheed Ahmed excise inspector proceeded from police station Excise Ubauro after recording entry No,166 in the Roznamcha along with subordinate staff namely EC Barkat Ali, EC Abdul Jabbar, EC Niaz Hussain, EC Khursheed Ahmad, EC Allah Dino and EC Muhammad Ramzan in official Mobile Van bearing No,GS-5005 at about 1-30 a.m. And after their departure from police station, they came to the border of Sindh Punjab at national highway Ubauro where at about 5-30 a.m. They noticed a Truck bearing No,KT-2813 from Punjab side was coming to whom they signaled to stop when the truck was stopped they found two persons, one driving the truck and another sitting near him. They both were taken out from truck and on enquiry it revealed that the person who was driving the truck disclosed his name as Sarwar Khan son of Noor Badshah Afridi Pathan and other disclosed his name as Ajmeer Khan son of Abdul Manan Bangash Pathan both resident of Kohat. The latter disclosed himself to be the cleaner of the truck. On search of appellant Sarwar Khan cash of Rs,900, his driving license and N,I.0 were secured from his pocket and cash of Rs,300, and photocopy of N.I.0 were secured from accused Ajmeer Khan. They also searched the truck and from the cavity of the truck they secured Charas duly wrapped in plastic bag, which were 280 in numbers and each piece contains 1 Kg., as such total 280 Kgs. (seven mounds) Charas were secured, as such seven pieces from those Charas were separated for chemical analysis and were sealed separately and prepared Mashirnama of the arrest of the appellants and recovery and returned to the police station, where the F.I.R. Was lodged and after registration of the F.I.R. The statement of the witnesses were recorded, the samples were sent to chemical examiner for report and after usual investigation challan against the appellants was sent in Court to stand the trial.
4. ' After receipt of the challan, the learned trial Court made compliance of section 265-C, Cr.P.C. And framed the charge against both the appellant under section 9(c) of Narcotic Substances Act, 1997 vide Exh.4 to which they both pleaded not, guilty and claimed trial vide plea Exhs.5 and 6.
5. ' After framing the charge the prosecution examined P.W.1 Rasheed Ahmad, who is complainant vide Exh.9 who produced the Roznamcha Entry No,166, Mashirnama of arrest of the appellants and recovery vide Exh.9-B, copy of F.IR. Vide Exh.9-C, chemical examiner report vide Exh.9-d. P.W-2 EC Allandino vide Exh.10 and prosecution closed its side vide statement Exh.11.
6. ' The statements of both the appellants were recorded separately under section 342, Cr.P.C.
7. Wherein they denied to have committed the present offence and they showed their ignorance about the chemical examiner report and stated that police officials have implicated them falsely in the present case, They have not examined themselves on oath nor they led the evidence of their witnesses in their defence.
8. ' After recording of evidence and hearing of the learned counsel for the parties, the learned Special Judge Narcotics Ghotki convicted and sentenced the appellants as stated above; hence both the appellants have filed instant appeals.
9. ' We have heard Mr. Ghulam Shabbir Dayo and,Mr. Rashid Khan Durrani, learned counsel for the appellants and Mr. Ali Haider Dareshani, learned counsel for the State.
10. ' The learned counsel for appellant Sarwar Khan vehemently contended that the appellant was neither in knowledge about alleged Charas in his truck as he was not the owner of the truck nor he was trafficking it. He further contended that the complainant separated 7 Kgs. Charas from the whole quantity of 280 Kgs. And since the whole quantity allegedly secured from the appellant, was not sent to the chemical examiner, as such at the most, the appellant may be held responsible for 7 Kgs. Charas. He further contended that the .Mashir of locality has not been picked-up and all the witnesses are police officials whose testimony could not be believed for recording of conviction and sentence against the appellant. In support of his contention he has relied upon the case of Amanat Ali and others v. State reported in 2008 SCM R 991, the case of Muhammad Hashim v. State PLD 2004 SC 856, the case of Zahoor Ahmad Memon v. The State reported in 1997 SCM R 543 and the case of Taj Wali v. The State reported in PLD 2005 Kar.
11. 128.
12. ' The learned counsel for appellant Ajmeer Khan in addition to the arguments advanced by the learned counsel for appellant Sarwar Khan, has further contended that the appellant Ajmeer was cleaner on the said truck and he in any way had no knowledge about trafficking of narcotics, as such he was not responsible for trafficking the narcotics and has been wrongly convicted by the learned trial Court. In support of his contention, he was relied upon the case reported in 2007 SLJ 1284 (sic).
13. ' Mr. Ali Haider Dareshani, Advocate, learned State Counsel while controverting the arguments advanced on behalf of the appellants, has contended that the appellants have alleged no enmity with the police officials to implicate them falsely and that they also did not dispute the whole quantity not to be the Charas produced before the trial Court, as such their defence carries no weight He further contended that though the witnesses were police officials but their testimony could not be ignored simply because they are police officials and their evidence have fully implicated the present appellants in the present crime.
14. ' We have considered the arguments advanced on behalf of the parties and have gone through the entire evidence available on record.
15. The complainant Rasheed Ahmad, Excise Inspector before the trial Court has deposed same fact as contained in the F.I.R. He deposed about the arrest of appellants on 22-6-2004 and recovery of Charas weighing 280 Kgs. From the secret cavity of the truck and further deposed about the seal of 7 Kgs. Charas separately out of 280 Kgs. For chemical examination and he further deposed that the samples sent to the chemical examiner were opined by chemical examiner to be the Charas vide report of the chemical examiner, which he produced before the learned trial Court vide Exh.9-C. He has been cross examined at great length by learned counsel for the appellants but in cross examination no where arrest of the appellants and recovery of huge quantity of Charas has been questioned or disproved. In the said lengthy cross examination, the testimony of this witness remains unshaken so far as recovery of 280 Kgs. Charas from the secret cavity of a truck driven by appellants Sarwar and Ajmeer Khan being cleaner, concerned and in his cross examination he also admitted that he consumed 2 hours at the spot in completion of the formalities. Similarly, P.W.2 EC Allandino who is the Mashir of arrest of the appellants and recovery has fully deposed on the same pattern as has been deposed by P.W.1 Rasheed Khan. He has also fully supported the recovery of 280 Kgs. From the secret cavity of truck and 7 Kgs. Charas was separated and the remaining quantity of the Charas was sealed separately. He has cross examined with the same questions, which were suggested to the P.W-1 Rasheed Ahmad and it appears that there is no slight difference in cross examination of both the P. Ws. And even it appears that their evidence is in consonance with each other on this material aspect of the case regarding arrest of the appellants and recovery and in cross examination, no material has been fished by the defence side to extend its benefit to the appellants.
16. The learned counsel for the appellants have contended that the Mashirs of the locality have not been picked-up and all the Mashirs are police officials whose testimony could not be believed. The said contention in our humble opinion is devoid of any force for the reason that section 25 of the Control of Narcotic Substances Act, 1997 speaks about the evidence of the police officials which may be treated as good as the evidence of any independent witness could be. It is now settled principle of law that the evidence of police official could not be discarded merely on the reasons that they are police officials. Their evidence may be treated as good as the evidence of an independent witness could be, and section 25 of Narcotic Substances Act also did not put any restriction regarding production of police officials as witness rather it excludes all hypothesis from the evidence of police official and speak about quality of police official, to be considered by the Courts and applicability of section 103, Cr.P.C. Has been ousted from the proceedings of Control of Narcotic Substances Act. The said point also came for consideration before the DB of this Court in a case of Lal Muhammad alias Haji Laloo v. The State reported in PLD 2009 Kar. 2,12, wherein while speaking on behalf of the bench one amongst us (Justice Arshad Noor Khan) while resolving the same controversy after analysis of case-law propounded by Supreme Court, was pleased to observe as under:--- ...It is not disputed that the prosecution witnesses are the police officials but in our humble opinion the evidence of a police official can be treated as good as the evidence of any other independent witness could be, provided they have been cross-examined by the defence and no element of mala fide has been fished out in their cross-examination to render their evidence out of consideration. In the present case in the ,lengthy cross-examination conducted on the prosecution witnesses no material has been fished out to prove that the prosecution witness possess any animosity against the appellant to implead him falsely. Even the evidence of the prosecution witness being police officials could not be excluded from consideration in view of section 25 of the Act, 1997 as section 25 of the Act, 1997 is completely different ill nature from the provisions of section 103, Cr.P.C....
17. ' The observation made by me on this aspect of the matter in the case of Lal Muhammad (supra) is complete answer to the arguments advanced by learned counsel for the appellants.
18. The contentions of the learned counsel for the appellants that whole quantity of Charas was also not sent to the chemical examiner, as such the appellants could be held responsible for the quantity of Charas to the extent of 7 Kgs. Which was sent to the chemical examiner for report. The said arguments have not impressed us for the reasons that, in case, if the narcotic substances have been secured in bulk quantity from the possession of the appellants, it is not obligatory on the part of the prosecution to send the whole quantity of the narcotics to the chemical examiner and the sample from such huge bulk of narcotic substance may be sent to the chemical examiner and positive report of the chemical examiner may be treated affirmatively against the whole quantity of Charas. The same point also came for consideration in the case of Lal Muhammad (supra), and has been dealt with by me in the following manner; after following the observation made by the Honourable Supreme Court in the case of Nadia Khan v. The State reported in 1998 SCM R 1899:--- ' ...The heavy quantity of Charas secured at the instance of the appellant is not mandatorily required to be sent to the Chemical Examiner and only the samples of the said contraband Charas and its positive report is sufficient to hold the whole recovery as a Charas. It has also come on record through the evidence of prosecution witnesses -that the complainant after recovery of 160 kilograms Charas at the instance of the appellant containing in four bags, separated 1000 grams from each of the bags and the said recovery and the samples have not been seriously controverted by the defence side in the lengthy cross-examination conducted on the witnesses, as such it has not been disproved from the evidence of the prosecution witnesses that 160 kilograms Charas was not secured at the instance of the appellant and 1000 grams Charas was not separated from each of the four bags...
19. ' It has further been observed in the same authority as under:---
(16) The contention of the learned counsel for the appellant also does not impress us that whole quantity'of Charas was not sent to the Chemical Examiner for report. The whole quantity of Charas secured in bulk was not required to be sent to Chemical Examiner and its samples sent to the chemical examiner for analysis and its positive report was sufficient to hold the whole quantity secured at the instance of the appellant to be the Charas...
20. ' The observation made in the aforesaid case in this respect also fully attract to the circumstances of the present case.
21. ' Admittedly the appellants were coming from Kohat to Karachi and for such a long distance, it cannot be said that they were not in knowledge of the secret cavity in the truck ,from where the Charas was secured nor it has been pleaded by both the appellants that they were appointed as driver and cleaner first time on the truck in question so as to say that they were not in knowledge about the secret cavity of the truck being full of the Charas. Even appellant Ajmeer Khan has not taken any separate defence in his statement before the trial Court to the extent being cleaner of the truck he was not in knowledge about the availability of the Charas, therefore he is not liable for any conviction for trafficking the Charas. Since the appellant Ajmeer has not taken the said defence before the learned trial Court, as such first time such plea, being concocted and afterthought raised before this Court could not be entertained. The argument advanced by Mr. Durrani, therefore has not impressed us. The truck in question was in possession of both the present appellants and apart from the Charas secured from, the secret cavity of the truck no other material or goods have been secured from the truck in question at the time,, of recovery of a Charas, as such it is evident that the truck was empty at the time of its seizure by the Excise police and it does not inspire confidence that both the appellants could come in empty truck from Kohat to Karachi without any goods or material loaded on it, which fact also shows that the appellants were full in knowledge about the Charas which they were trafficking at the time of their arrest.
22. ' In the case of Lal Muhammad (supra) all the similar facts and propositions of law as involved in the present case have been fully' discussed after analyzing the case-law of the Honourable Supreme Court and in view of the observations of the Honourable Supreme Court in the case referred in the aforesaid case of Lal Muhammad, the appeal of that appellant, were dismissed and same is the proposition involved in the present appeals which deserve similar fate of dismissal.
23. ' In view of the case-law discussed above we are of the firm opinion that the case-law relied upon by the learned counsel for the appellants, are distinguishable from the circumstances of the present case and are inapplicable.
24. After appraisal of whole evidence available on record as well as the case-law on the subject we are of the firm opinion that the recovery of 280 Kgs. Charas has been established by the prosecution from the possession of both the appellants and said recovery has not been disproved by the appellants by adducing any independent evidence, as such the learned trial Court rightly convicted and sentenced them and we do not find any illegality or infirmity in the judgment passed by the learned trial Court. The appeals were dismissed by our short order dated 20-5-2009 for the reasons to be recorded later on and above are the reasons for the same.