IMAM BUX BALOCH, J.---Through this appeal the appellants assailed judgment dated 30-6-2005 passed by Special Judge (CNS), Hyderabad whereby appellants have been convicted to suffer R.I for 14 years and to pay fine of Rs,3,00,000 each, in case of default in payment of fine each appellant to suffer imprisonment for one year more. The benefit of section 382-B, Cr.P.C. was also extended in favour of the appellants.
2. The prosecution's case in nutshell is that on 23-7-2004 AETO Abdul Waheed Mughal under the directions of Excise Inspector Chaudhary Ghulam Muhammad Arain, In charge Divisional Special Squad, Hyderabad proceeded with AETO Nisar Ahmed, EI Mir Muhammad Abbasi, EI Javed Nazir Shaikh, EI Muhammad Aakig Khan Ghaznavi, EI Muhammad Qasim Rahi, EI Pir Bukhsh Soomro, ED Sikandar Ali, ED Allahwarayo, ED Allah Bachayo, ED Muhammad Khan, EC Fida Hussain, EC Muhammad Saleem and driver ED Muhammad Sharif and left Excise Police Station in official vehicle bearing No,GS-4010, vide Roznamcha Entry No,6 at 1745 hours, after receiving spy information. The Excise Police party reached on Midway Hotel at about 1830 hours and noticed two persons standing near main gate of the hotel, one was holding gray colour fancy bag and other was holding green colour fancy bag in their hands. After identifying the excise staff in uniform both of them tried to run away but apprehended. The complainant party introduced their identity to the appellants who on enquiry disclosed their names as Muhammad Akram son of Abdul Aziz by caste Rajput resident of Do-Qabar Street, Shahi Bazar, Hyderabad while other disclosed his name as Mukhtiar Ahmed alias Baboo son of Pir Bukhsh Mangrio, resident of near Dargah Meher Ali Shah, Tando Wali Muhammad, Hyderabad. Grey coloured bag was opened which contained 10 bundles of juice packing with red tap containing charas and cash Rs,15Q were also secured from Muhammad Akram, while from Mukhtiar alias Baboo green coloured bag was opened which contained 08 bundles of juice packets with white tap and Khaki paper containing heroin powder and cash of Rs,200 was also secured from him. The weight of charas and heroin was taken in presence of E.I Mir Muhammad Abbasi and E.I Javed Nazir Shaikh. The weight of Charas became 10 kg while the weight of heroin became 8 kg, out of charas 10 grams were taken from one bundle and was sealed for chemical examination, 1 gram of heroin powder was also taken in white paper and sealed separately for chemical examination while remaining charas and heroin were. sealed separately. Such Mushirnama of arrest and recovery was prepared at the spot. The accused/ appellants and recovered property was brought at Excise Divisional Special Squad, Hyderaqbad, where F.I.R. was registered vide Crime No,16 of 2004. After completing investigation the accused appellants were sent up to face trial.
3. During trial charge was framed on 17-12-2004 as Exh.4 to which the appellants/accused pleaded not guilty and claimed to be tried. During trial prosecution has examined E.I Mir Muhammad Abbasi as P.W.1 at Exh.8, who has produced mushirnama of arrest and recovery at Exh.8-A. AETO Abdul Waheed Mughal was examined as P.W.2 at Exh.9, who has produced F.I.R. in Crime No,16/04 of Police Station Excise Hyderabad at Exh.9-A, chemical examination report at Exh. 9-B, Roznamcha Entry Nos. 6 and 7 dated 23-7-2004 Exh.9-C. Ater completing the prosecution evidence vide at Ex.10 through a statement closed the prosecution side.
4. The statements of appellants Muhammad Akram and Mukhtiar alias Baboo under section 342, Cr.P.C. were recorded. The appellant Muhammad Akram in his statement produced an order dated 26-7-2004 passed by Sessions Judge, Hyderabad in Criminal Revision Application No,28 of 2004, re: AETO Abdul Waheed Muijhal v. Muhammad Akram at Exh.11-A, copy of Crime No, 47 of 2003 of Police Station Cantt: Hyderabad, registered for offence falling under section 9(c) of C.N.S. Act, 1997 read with sections 196, 193, P.P.C. The appellant Mukhtiar alias Baboo with his statement produced copy of C.P. No,D-659/1999 re: Mst. Zohra v. Shahi Muhammad Siyal and others, order passed in C.P. No, D-659 of 1999, dated 24-11-1999 and statement of respondents Shafi Muhammad Siyal, Inspector Excise and Taxation, E.C. Shabir, E.0 Ashiq, copy of C.P.D-74 of 2000 re: Mst Zohra v. Federation of Pakistan and others along with affidavits. The appellant Mukhtiar alias Baboo also examined two defence witnesses namely Mehrab Ali as D.W.1 at Exh.13, Nazar Muhammad as D.W.2 at Ex.14. After hearing the accused/appellants and the State the impugned judgment was passed.
5. We have heard Mr. Abdul Qadir Halepota, Advocate for the appellants and Mr. Khadim Hussain, D.P.-G. on behalf of State, with their assistance we have gone through the evidence available on record.
6. Mr. A.Q Halepota, learned counsel for the appellants contended that Excise Jamadar Sikandar who prepared memo of arrest and recovery was not examined and so also E.C. Muhammad Saleem, who weighed narcotics, was not examined which creates doubt in the prosecution story.
He further contended that place of incident is a thickly populated area situated near Midway Hotel, Hyderabad, independent witnesses were also available as admitted by prosecution witnesses but independent witnesses over sighted with mala fide intention and ulterior motives, which fact also creates doubt in the prosecution case. Learned counsel further argued that the prosecution has failed to comply with the mandatory provisions of section 103, Cr.P.C. and further argued that at the time of charge the appellants had denied and taken the plea that they were arrested from cattle- pen of appellant Mukhtiar alias Baboo and falsely implicated in this case. Learned counsel further argued that the sample for chemical examination was taken from one patti of charas and 1 gm of heroin was taken from one packet and it could not be said with certainty that remaining case property is of charas and heroin. The learned counsel pointed out contradictions in the evidence of both the P.Ws. and contended that the very taking of samples and sending the same to the chemical examination is doubtful, as the same has not been sent according to the mushirnama of arrest and recovery. The learned counsel strongly criticized the chemical report and stated that in the prescribed manner samples were not sent for chemical examination as stated by the chemical examiner in its report which creates doubt in the prosecution case. Learned counsel further contended that the appellant Mukhtiar alias Baboo had enmity with excise officials of Hyderabad and such. petitions in the years 1999 and 2000 had been filed by Mst. Zohra, Aunt of the appellant Mukhtiar alias Baboo in this Court at Hyderabad Circuit, due to that enmity the appellants have been involved in the false case.
7. Mr. Halepota further argued that two witnesses of the locality have been examined in defence of the appellants who categorically stated that the appellants were arrested from Cattle-pen of the appellant Mukhtiar Ahmed alias Baboo in their presence and their evidence has to be examined in juxtaposition with the prosecution evidence.
8. The learned counsel has summed up his arguments that there are so many doubts in the prosecution case and the benefit of doubt in the circumstances of the case may be extended in favour of the appellants. Learned counsel has relied upon the following case laws:-- Banwari Lal and another v. Emperor, (AIR 1920 Allahabad 203) Emperor v. Akub Ali Mazumdar and others (AIR 1920 Calcutta 522), Mst. Jeejal and another v. The State (2005 MLD 1261), Shafiullah v The State (SBLR 2008 Sindh 60), Rasool Muhammad v. Asal Muhammad and 3 others (1995 SCMR 1373), Tariq Parvez v. The State (1995 SCMR 1345), The State v. Tariq Mehmood, (1987 PCr.LJ 2173), Haji Muhammad Jee and others v. Muhammad Ibrahim Shauq and others, (1988 SCMR 1691), Waqar Nazir and others v. The State (2007 SCMR 661) and Ali Hassan v. The State PLD (2001 Karachi 369).
9. On the other hand, Mr. Khadim Hussain, learned D.P.G for the State strongly supported the impugned judgment. He contended that the huge quantity of contraband material was recovered from the possession of the appellants in the daylight and further argued that there is no strong enmity between the appellants and excise officials to falsely implicate the appellants and huge quantity of contraband be foisted upon the appellants. He further contended that the evidence of both the prosecution witnesses .are corroborating to each other and there is no major contradictions in their evidence. He further contended that section 103, Cr.P.C. is excluded under section 25 of the CNS Act, 1997. Learned D.P.-G. further contended that at the time of arrest of the appellants no any complain whatsoever had been lodged or any application or petition had been filed on behalf of the appellants to show that appellants had been involved falsely.
10.We, with the assistance of the learned counsel for the parties have gone through the evidence available on record. P.W.1 E.I Mir Muhammad Abbasi has stated that on spy information they saw two persons standing on the road, while holding Khaki coloured fancy bag and green coloured fancy bag in their hands, upon seeing excise police party they tried to run away but were captured by excise police, subsequently they disclosed their names as Muhammad Akram and Mukhtiar Ahmed alias Babu son of Pir Bukhsh Mangrio. On opening the same 10 bundles of charas in juice packets with red colour packing were secured with Rs 130 and from accused Mukhtiar alias Baboo, green colour bag was secured and on opening the same four patties with juice packing containing heroin,. weighing 8 kgs while weight of recovered charas was taken which became 10 kgs.10 grams from one bundle of charas sealed for chemical examiner while 1 gram of heroin powder, sealed for chemical examination. Remaining charas and heroin were sealed separately. He and E.I Javed Nazir Shaikh acted as Mushirs, in cross-examination he stated that after leaving excise police station, they have proceeded to the place of incident through Saddar Cantt:, Qasim Chowk, Pathan Colony Chowk and then reached at Mid-way Hotel, where accused were standing outside the gate of Midway Hotel road coming out from city area towards police choki. He further stated that four excise officials apprehended the accused, mushirnama was prepared at place of incident. E.J Sikandar prepared mushirnama of the arrest and recovery. He further stated that sufficient number of public persons were collected at the place of incident. AETO Abdul Waheed Mughal approached many persons to act as Mashir but they refused.
11. P.W .2 complainant AETO Abdul Waheed Mughal stated the same facts as stated that they reached at the place of incident at about 1830 hours where accused were standing outside the Midway Hotel on the road coming from market area towards Central Prison. Accused were standing on the gate of Midway Hotel towards the Clinic of Dr. Pushpa, accused had tried to run away at 15 to 20 paces, but they apprehended them. Mashirnama was prepared at place of incident, and accordingly F.I.R. was lodged. In cross-examination he stated that it is correct that no sample is taken from nine packets of charas, they had sent the samples from one packet.
Voluntarily says there is letter from laboratory that only 10 grams of charas be sent for chemical examination. He further deposed that no substance was taken from remaining seven packets of heroin powder, and during remand period they were directed to provide necessary medical treatment to the accused. He admitted that he had filed a revision before the Sessions Court against order of the Magistrate as police remand was refused and accused were remanded to judicial custody. He further admitted that the criminal revisions was disallowed.
12. We have also gone through the defence witnesses produced by appellant Mukhtiar alias Baboo.
D .W.1 Mehrab Ali, Veterinary Doctor stated that he used to purchase milk from the cattle-pan of appellant Mukhtiar. On 23-7-2004 at about 4-00 pm, he went to the cattle-pan of accused when suddenly two/three vehicles of police came entered in the cattle-pan and apprehended Muhammad Akram and Baboo. They caused some blows to both the accused while Akram sustained more blows. They enquired about their arrest on which they replied that it is their official matter. They are taking both and after making some enquiries they be released. Thereafter he enquired from the parents of the accused and stated to them that whenever they required him for evidence he will accompany them. He also accompanied the parents of accused for agitation. In cross-examination this witness stated that he is residing at Tando Wali Muhammad since his birth, his house is situated in the third street from the cattle-pan of accused. He further stated that he was purchasing milk from accused since more than two years. He further stated that he had not made any telegram or complaint to any higher authority about arrest of accused from their cattle- pan in his presence.
13.D .W.2 Nazar Muhammad has stated that he is ex- councillor of the area, he had remained councillor in the year 1979, 1983 and 1987. It was 23rd Friday about 4:00 pm sufficient number of mohalla people and the police were present at the cattle-pan of Baboo. Excise Police in uniform and also in civil dress took away Baboo and Akram, saying that they would release them after making some enquiry. Next morning their Aunt informed that F.I.R. has been registered against them. In cross-examination this defence witness stated that he is residing on one side of road while accused are residing on other side of road. He had only visiting terms with the accused persons on marriage and death, he has not sent any telegram or complaint to any higher authority about false implication of the accused in the case. He has not accompanied the Aunt of accused to Excise police station.
14. We have examined the evidence available on record. Both the prosecution witnesses are unanimous that the appellants had been captured at the gate of Midway Hotel, Hyderabad and contraband material recovered from their possession. No major contradictions are available in their evidences, minor discrepancies with the passage Of time may occur but the same could not affect the consistent evidence available on record. The contention of Mr. Halepota that the samples sealed at the place of incident show that heroin powder was inserted in a white panni and after that the same was put in a khaki envelope likewise the 10 grams of charas inserted in a white panni and was put in .khaki envelope is contradictory to the chemical report. We have perused the chemical examiner report which reveals as under:
(1) Weight:---(i).gross of the parcel with contents:- 10-700 gins.
(ii) Net wt. of the contents without any wrappers:- 9-900 gins. (Nine grams and Nine hundred mgs).
(2) Physical Appr:- Greenish brown semi soft piece with smell like charas.
(3) Miro.Exam:- Horn type spines detected.
(4) Rosin test:--- Positive.
5. Fast Blue B Salt test:- Positive.
Parcel No,2:-
(1) Weights:- (i) Gross wt. of the plastic packet with contents: 01.600 gms.
(ii) Net wt. of the contents without any wrappers:-01.600 gms."
15. After examining the chemical analyzer report, we are not agreed with the contention of the learned counsel for the appellants that the samples drawn at the time of recovery of contraband was not the same, which was sent to the chemical examiner. On the same day the samples were dispatched to chemical examiner and on the next day chemical examiner received the samples which excluded any manipulation or tampering with the samples.
16.We have also gone through the law cited by the learned counsel for the appellants. In our considered view the same are, not helpful to the appellants. In the case of Mst. Jeejal and another v. The State (2005 MLD 1261) (supra), the samples were taken, containing one slab each whereas chemical report reveals that 24 and 10 small size of black brown pieces were sent to chemical examiner and in the above circumstances the benefit of doubt was extended.
17. In the case of Haji Muhammad Jee and others v. Muhammad Ibrahim Shauq (1988 SCMR 1691) the case was remanded for retrial. The case of Tariq Parvez v. The State (1995 SCMR 1345) it is stated that the concept of benefit of doubt to an accused person is deep rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.
18. In the case of Rasool Muhammad v. Asal Muhammad and 3 others (1995 SCMR 1373), it is observed that "He was not given any opportunity to explain as to whether or not he had mentioned the presence of Rasool Muhammad P.W.10 and Abdul Aziz P.W.11 in the F.I.R. Exh.P.W.8/1, allegedly lodged by him. It is by now well settled principle of law that unless a circumstance sought to be used against an accused is put to him during examination under section 342, Cr.P.C. that circumstance cannot be used against him. Omission to draw the attention of an accused person to a circumstance to be used against him is prejudicial to him. So, it can neither be considered, nor used against him for any purpose".
19. In the case of Waqar Nazir and others v. The State 2007 SCMR 661, it was observed that "In case the defence plea and the aforesaid portions of cross- examination of prosecution witnesses are put in a juxtaposition, then it is crystal clear that both the Courts below had convicted and sentenced the petitioner without judicial application of mind in its true perspective as evident from the contents of the impugned judgment of the Courts below. It is a settled law that defence has only to make out a possibility of its version being true and is not required to prove its plea beyond reasonable doubt. It is also settled law that statement of the accused in defence if found reasonably possible from material on record then accused could be given benefit of doubt and acquitted as the law laid down by this Court in following judgments: (i). Waris's case PLD 1981 SC 127 and (ii) Safdar Ali's case PLD 1953 FV 93. "
20. In the case of Ali Hassan v. The State (PLD 2001 Karachi 369) a Division bench of this Court has observed that "The trial Court has further referred to the provisions of section 25 of the Control of Narcotic Substances Act, 1997, whereby applicability of section 103, _Cr.P.C, in the cases under this Act has been excluded. This exemption may give a legal technical support to the admissibility of the evidence of official witnesses, but it does not make them reliable. Man cannot be made moral through legislation. Evidence of such official witnesses should always be examined with a view of the facts that in a society with the level of moral values that we unfortunately have, a subordinate official is seldom excepted to tell the truth in deviation of the express or complied instructions of his superior. As far the ulterior, motive, these officials are always interested to show, their efficiency by registering more cases and the reason for not foisting the other opium, allegedly thrown away by one Irshad Khan who escaped, upon the present appellant may be to make more number of cases by that quantity."
21. In the case of Saifullah v. The State (2007 YLR 3087) wherein it has been observed that "The expert found the signatures of two witnesses namely SIPs Arshad and Malik Javed Iqbal on the sample. When the entire material was consumed then it was the duty of the prosecution to have received the Wrapper in which the sample was sent to Chemical, Analyzer thereafter it should have been produced before the Court so as to prove as to whether the wrapper was same in which the sample examined by the Chemical Analyzer was consumed and prepared at the place of incident. Neither the complainant nor the mashir stated in their depositions that the mashir had put their signatures on the packet of sample".
22. In the case of Banwari Lal and another v. Emperor AIR 1920 Allahabad 203 that "Petitioner was charged under section 112, with entering a railway carriage without a ticket with intent to defraud the railway. He pleaded guilty to entering the carriage, but said that as the train was about to start he had no time to purchase a ticket. He was nevertheless convicted. Held: that the conviction was bad, as the petitioner's plea amounted to a denial of having intended to defraud." In the case of Queen-emperor v. Bhadu, the circumstances of that case are not similar with the circumstances of this case.
23. The contention of Mr. Halepota that the mandatory provision of 103, Cr.P.C. has been violated and no any public witness cited though were available at the time of incident is not helpful to appellants as section 25 of the CNS Act, 1997 has excluded the applicability of section 103, Cr.P.C. in the cases of narcotics. Prosecution witnesses being members of the raiding party are natural witnesses and their testimony cannot be discarded merely on the ground that they are the employees of police .force. The prosecution witnesses had demonstrated complete unanimity on all aspects of the case, no major contradiction could be pointed out in the evidence, -so as to create a dent in the prosecution case. No enmity, ill-will or grudge has been alleged against the prosecution witnesses to falsely implicate the appellants in the case. Large quantity of 10 kgs of charras and 8 kgs of heroin powder could not be thrust upon the , accused, in absence of any tangible and concrete enmity, which ' had not been proved by the defence. One can refer the case of Abdul Rasheed v. The State (2009, SCMR 306) the relevant portion is reproduced for ready reference:-- "(5) We have heard the learned counsel for the parties and have perused the record with their kind assistance. All the three prosecution witnesses had demonstrated complete unanimity on all aspects of the case. The appellant could not point out any contradiction in the statements of the prosecution witnesses, so as to create a dent in the prosecution case. No enmity, ill-will or grudge has been alleged against the prosecution witnesses to falsely implicate the appellant and despite lengthy cross-examination, their veracity could not be shattered and nothing favourable to the defence could be extracted from their statements. The most important aspect of the case is that a large quantity of 'about 1000 grams (1 kg) of heroin could not be thrust upon the appellant in absence of any tangible and concrete enmity, which has not been proved by the defence. The appellant could not point out any misreading or non-reading of evidence resulting into miscarriage of justice.
(6) So far as the argument regarding non- association of the public witnesses at the time of raid by the raiding party is concerned, suffice it to be observed that application of provisions of section 103, Cr.P.C. has been excluded under section 25 of the Act, as laid down by this Court in Fida Jan v.
The State 2001 SCMR 36. The prosecution witnesses being members of the raiding party were the natural witnesses and their testimony cannot be discarded merely on the ground that they were the employees of police force. Reference in this context, may be made to Mohammad Azam v. the State PLD 1996 SC 67, Muhammad Hanif v. The State 2003 SCMR 1237,' Riaz Ahmad v. The State 2004 SCMR 988 and Naseer Ahmad v. The State 2004 SCMR 1361."
24. Time and again it was held by the Hon'ble Supreme Court of Pakistan that police officials are also competent witnesses and their testimony cannot be discarded merely for the reason that they were employees of the police force. As held in the case of Muhammad Mushtaq and another v. The State (2008 SCMR 742) relevant portion is reproduced as under:-- "As to the arguments of the learned counsel for the petitioner 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 reasons that they were employees of the force. Reliance in this context can be placed to case of Shaukat Khan v. The State 2003 PCr.LJ 324 and Muhammad Azam v. The State PLD 1996 SC 67.
25. We have also observed that after the arrest of the appellants/accused no any complaint or any application has been moved by the appellants or their relatives against the complainant. The documents produced by the appellant Mukhtiar with his statement under section 342, Cr.P.C. pertaining to the years 1999 and 2000, whereas the offence has been committed in the year, 2004, much after the petitions filed by one Mst. Zohra alleged to be Aunt of the appellant Mukhtiar. The prosecution witnesses were not party in that proceedings. In such circumstances, the prosecution_ witnesses could not be disbelieved who have given consistent evidence on each and every aspect of the case.
26. For the foregoing reasons we feel no need to interfere with the impugned judgment of the trial Court, we therefore upheld the conviction and sentence awarded to the appellants by the trial Court. Consequently the appeal is dismissed.