' NISAR MUHAMMAD SHAIKH, J.---These two appeals, filed by two appellants Iqbal Hussain and Noor Muhammad respectively, shall stand decided by this common judgment as both these appeals have arisen out of the same judgment dated 24-6-2009 passed by the learned Judge, Special Court-I, (CNS) Karachi in Special Case No,70 of 2005 (Crime No,6 of 2005 of Police Station ANF-I, Karachi) whereby both the appellants were convicted under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for life and to pay fine of Rs,100,000 each and in default thereof, to suffer S.I. For three months more.
2. The prosecution case in brief is that on 25-6-2005 Inspector Jehangir Khan of Police Station ANF Gulshan-e-Iqbal, Karachi was busy in patrolling along with his subordinates at Sohrab Goth when he received a spy information that accused Noor Muhammad and Iqbal Hussain Narcotics smugglers, have brought a huge quantity of charas concealing in secret boxes of bus No,RIR-6175 from Peshawar to Karachi and after dropping the passengers at Landhi, they would go in the same bus to Al-Asif Square, Sohrab Goth for delivery of charas to the party. It was about 1705 hours when the spy pointed a passengers' bus which was got stopped near Al-Asif Square and the driver as well as the person sitting next on the seat at engine were captured. The persons Who were present at the spot refused to act as witnesses though asked for. Therefore, by making A.S.-I. Naeem Khan and PC Ayaz Ahmed as witnesses out of the raiding party, the Inspector enquired the names and the addresses of the accused who disclosed the same. Thereafter, they were also enquired about the secret boxes, to which they disclosed about such secret boxes made at down side of the bus.
The Inspector then secured 66 packets of foil packing containing 2 slabs of charas in each packet and 64 small foil packets containing one slab of charas in each and accordingly, total 98 kilograms of charas, secured from the secret boxes of the bus, was sealed in three nylon made gunny bags for chemical examination. The accused were arrested and the case property i.e, charas as well as bus including its keys were taken into custody and such mashsirnama was prepared at the spot and then such case was registered at Police Station. On completion of investigation, the appellants were sent up to face the trial of the case.
3. The accused/appellants did not plead guilty to the charge framed by the trial Court as Exh.
4. The prosecution then examined P.W.1, A.S.-I. Naeem Khan, who produced the memo of arrest and recovery and P.W.2., Inspector Jehangir Khan who produced the F.I.R. No,6 of 2005 as well as the report of the Chemical Examiner. The statements under section 342, Cr.P.C. Of the accused were recorded as Exhs.12 and 13. Thereafter, copies of the Roznamcha entries Nos.12 and 14 dated 25-6- 2005 were filed together with application under section 540, Cr.P.C. (Exh.15) moved by SPP ANF with a prayer to recall the P.Ws. To produce the bus in question before the Court. Such application, after hearing the parties, was allowed by the trial Court vide its order dated 11-6-2009 and accordingly, the P.Ws. Were recalled for the above purpose. Thereafter. The statements under section 342, Cr.P.C. Of the accused were again recorded as Exhs.16 and 17. Their defence was of total denial.
However, they did not examine themselves on oath or any witness in their defence. After hearing the parties, the trial Court awarded the conviction and sentence to the appellants as mentioned above, which has been assailed in the present appeals.
4. Mr. Abdul Razzak, learned counsel for the appellant Noor Muhammad, relying upon the cases reported as 2009 SCMR 141, 1997 SCMR 543, PLD 1987 FSC 43, PLD 2009 Karachi 191, 2009 PCr.LJ 523 and 1334, 2009 YLR 640, 1380 and 1724, 2008 MLD 797, 2007 PCr.LJ 483, PLD 2007 Karachi 238, 2006 PCr.LJ 123, PLD 2006 Karachi 698, 2004 YLR 356, 2004 PCr.LJ 1224, 2003 PCr.LJ 865 and PLD 2003 Karachi 606, argued that the appellant was allegedly arrested from a passengers' bus at thickly populated area but no witness was cited from the passengers or the area, therefore, the sole testimony of the ANF officials cannot be relied upon specially when there are also material discrepancies and contradictions which create doubt in the prosecution case. He further argued that the complainant himself also acted as an investigation officer who failed to produce the bus in question before the trial Court and also failed to make the owner of the bus as a witness in the case. He also argued that the appellant has falsely been implicated in this case and the charas in question was foisted upon him and its recovery, even otherwise, is not proved by any independent or corroboratory evidence, therefore, he is liable to be acquitted as the impugned judgment is not sustainable in law.
5. Whereas Mr. Ilam Din Khattak, learned advocate for the appellant lqbal Hussain, relying upon the case reported as 2008 SCMR 991, argued that nothing was recovered from the possession of the appellant or on his pointation and there is no evidence against the appellant lqbal Hussain to connect him with the alleged crime as he was neither owner nor driver of the bus in question and there is no proof against him to show that he was Cleaner or Conductor of the bus, therefore, he is liable to be acquitted by giving the benefit of doubt created in the prosecution case due to absence of any material evidence against him to warrant his conviction.
6. On the other hand, learned Special Prosecutors relying upon the case reported as 1988 SCMR 1899. 2008 SCMR 1254, 2009 SCMR 291, 306 and 1403, 2008 YLR 2538, 2702 and 2903, argued that both the appellants were apprehended by the ANF officials on spy information that they have brought the charas from Peshawar to. Karachi by a bus and thus a huge quantity of charas was also secured from the secret cavities of the bus as disclosed and pointed out by the appellants.
They further argued that the recovery of charas as well as its positive report of the Chemical Examiner stood proved beyond any shadow of doubt, therefore, appellants cannot escape of their liability and responsibility of carrying and transporting the charas in question. They also contended that there is no bar for the complainant to act as an Investigating Officer being a witness of the recovery and there is also no bar for ANF officials to be the witnesses of the recovery which has been proved by the corroboratory evidence, therefore, the minor discrepancies or irregularities, if any, are to be ignored specially when there was no dispute or enmity or any between the appellants and the complainant party, therefore, the huge quantity of charas could not be foisted upon the appellant without any reason of their false implication and as such they were rightly convicted by the trial Court.
7. We have considered the above submissions and perused the relevant record and also gone through the authorities as relied upon by the parties.
8. The record shows that the contents of the very F.I.R. As well as memo of arrest and recovery are corroborated by the evidence of complainant, Inspector Jehangir Khan and recovery witness A.S.-I.
Naeem Khan and their evidence could not be shaken on any of the material particulars during their cross-examination. Their evidence is A further corroborated by the report of the Chemical Examiner which is positive in respect of the entire charas secured from the secret cavities/boxes of the bus on the disclosure of the appellants whose presence in the bus at the relevant time of recovery of a huge quantity of charas from the same bus, is fully corroborated by the evidence of both the P.Ws.
Who, no doubt, belonged to ANF but in this regard, it is held in a recently reported case of Ismail v.
The State (2010 SCMR 27) that "it is a settled principle of law that mere fact that prosecution witnesses belonged to Anti-Narcotics Force, by itself cannot be considered a valid reason to discard their statements". It has also been observed in the same case (supra) as under:-- "It is pertinent to mention here that Chemical Examiner reports regarding charas and opium are sufficient to prove that the substance recovered from the petitioner is charas which can be used to cause intoxication. The prosecution had discharged its initial onus while proving that substance was recovered from him whereas the petitioner had failed to discharge its burden in terms of section 29(d) of the Control of Narcotic Substances Act, 1997."
9. Since the prosecution had been able to successfully adduce the convincing evidence in support of the alleged recovery of a huge quantity of charas, therefore, non-recovery of driving licence of the accused or registration book of the Bus, was not of so importance to vitiate the said recovery of contraband charas of a large quantity, specially when such driving licence or registration book, which could not be secured being not available, were not the requirement of constitution of the offence. However, it was for the appellants who were required to furnish a cogent reason of their false implication but they failed to do so. According to their statement under section 342, Cr.P.C, they were falsely implicated as they did not give the names of the smugglers of charas on the enquiry of the complainant party. Although this defence plea seems to be an after thought as the same was never suggested during the cross-examination of the P.Ws., yet the same is not substantiated by the appellants in any way. In the case of Abdul Rasheed v. The State (2009 SCMR 306) it was held that a large quantity of heroin could not be thrust upon the accused in absence of any tangible concrete enmity. But, in the present case, there is no sort of such enmity.
10. There is since no denial that the recovered material was not the charas or it was tampered with or that the report of Chemical Examiner was not correct or genuine, therefore, these factors also support the case of the prosecution who also produced the case property including the bus before the trial Court as is evident from the material available on record and there is no reason to connect the accused with these things falsely. They have claimed their innocence with total denial of the alleged occurrence but the same is proved by the confidence inspiring evidence of the. P.Ws. Who had no animosity or any interest to depose falsely B against the appellants and they being driver and conductor/cleaner of the Bus cannot be said to have had no knowledge of the contents/articles lying/concealed in such Bus which travelled a long journey from Peshawar to Karachi. In a similar type of the case of Muhammad Noor and others v. The State, recently report as 2010 SCMR 927, it was observed as under:-- "As regards Driver of the vehicle, it is important to note that when he is driving the vehicle, he is Incharge of the same, therefore, it would be under his control and possession. Hence, whatever articles lying in it would be under his control and possession. This Court in the case of Nadir Khan v.
State 1988 SCMR 1899 has observed that knowledge and awareness would be attributed to the Incharge of the vehicle. The relevant portion reads as under; "We have gone through the evidence on record and find that the petitioners had the charge of vehicle for a long journey starting from Peshawar and terminating at Karachi. They had the driving licence also. As being person Incharge of the vehicle for such a long journey, they must be saddled with the necessary kntiwledge with regard to the vehicle and its contents."
' Keeping in view the above principles of law, the appellant Muhammad Noor is Driver, therefore, he is in possession of the vehicle and also in possession of the articles whatever lying in it. The allegations against the appellant Muhammad Ramzan is that on his information secret cavities of the vehicle were opened and Charas was secured. Thus, from such information it has been established that he had knowledge of the availability of Gharas in the secret cavities of the vehicle.
Therefore, the appellant Muhammad Ramzan is also involved in the case along with the appellant Muhammad Noor. Hence, the case has been proved against both the appellants Muhammad Ramzan and Muhammad Noor."
11. The contention of the learned counsel for the appellants that the appellants had no connection with the bus in question, is also devoid of any force as the huge quantity of charas is proved to have been recovered by the complainant party from such bus in which only the appellants were found present while using the same at the relevant time and it was in line with the spy information.
It is surprising that nobody has come forward to claim the Bus, apparently, for the reason that the narcotic substance was secured from such bus. The suggestion of the accused Iqbal Hussain during the prosecution evidence that the owner of the bus was released and the accused was implicated falsely, is also without any substance. This accused, saying that nothing was secured from him, also did not claim his CNIC secured by the raiding party on his personal search.
12. The next contention of the learned counsel for the appellants that the complainant himself could not act as an investigating officer, has also no force in circumstances of this case and, even otherwise, the observations made in this connection in the case of Zafar v. The State (2008 SCMR 1254) are relevant and applicable to this case and the same read as under:-- "So far as the objection of the learned counsel for the appellant that the Investigating Officer is the complainant and the witness of the occurrence and recovery, the matter has been dealt with by this Court in the case of State through Advocate-General Sindh v. Bashir and others PLD 1997 SC 408, wherein it is observed that a Police Officer is not prohibited under the law to be complainant if he is a witness to the commission of an offence and also to he an Investigating Officer, so long as it does not in any way prejudice the accused person. Though the Investigating Officer and other prosecution witnesses arc employees of A.N.F., they had no animosity or rancor against the appellant to plant such a huge quantity of narcotic material upon him. The defence has not produced any such evidence to establish animosity qua the prosecution witnesses. All the prosecution witnesses have deposed in line to support the prosecution case. The witnesses have passed the test of lengthy cross-examination but the defence failed to make any dent in the prosecution case. The prosecution has been successful to bring home the guilt of the appellant to the hilt by placing ocular account, recovery of narcotic material, the Chemical Examiner report G.I., Exh.P3. The learned counsel for the appellant has not been able to point out any error of law in the impugned judgment and the same is unexceptionable."
13. The contention of learned counsel for the appellants that the copy of the Roznamcha entry on the basis of which the ANF left the Police Station and apprehended the appellants was very much necessary to be produced by the prosecution, is also not forceful as the complainant party had not left the Police Station with intention or preparation to apprehend the appellants but such spy information was received by them during patrolling in the area and it was after that the appellants were apprehended. Even otherwise, the copies of such departure and arrival entries dated 25-6- 2005 were placed on record on behalf of the prosecution through their application (Exh.15) moved before the trial Court under section 540, Cr.P.C.
14. For the aforesaid reasons, we find that the evidence adduced by the prosecution during the trial of the case was properly appreciated by the learned trial Court and thus, the appellants were rightly found guilty of the charge on the basis of the material brought on the record of the trial Court and accordingly, the facts of the remaining cases/authorities as relied upon by learned counsel for the parties, are distinguishable to the case in hand.
15. In the circumstances, the conviction and sentence awarded by the trial Court to the appellants Iqbal Hussain and Noor Muhammad was maintained and their appeals were dismissed by this Court vide short order dated 17-6-2010 and these are the reasons for the same. It is however added that the benefit of section 382-B, Cr.P.C, which is not maintained in the judgment of the trial Court, shall be given to the appellants.