1. MRS. SYEDA TAHIRA SAFDAR, J.---The brief facts of the case are that F.I.R. No.18 of 2004 Levies Thana Taftan was registered on 17-6-2004 at 1630 hours on report of Major Muhammad Umar Farooq, Wing Commander 75-Wing Kharan Rifles, wherein it was asserted that on routine patrolling at Waricha Landhi two vehicles and four persons namely Bashir Ahmed, Zahoor Ahmed, Ghulam Gillani and Shabbir Ahmed were apprehended, while from vehicle Siapa Registration No.Nil, Engine No.224-404385, Chassis No. PL140-B65357, on checking 19-Kilograms of suspected heroin was recovered. While the other vehicle Toyota Hilux bearing Registration No. Chagai-2366, Engine No.37-0041214, chassis No.YN57-061530 a satellite phone was recovered, was guiding the vehicle from which narcotics are recovered. Registration of case the investigation was made by the Naib Resaldar Levies Headquarters Taftan namely Rasool Khan (P.W.4). On completion case was challaned against all the four persons apprehended by the authorities. Before framing of charge an application submitted by the present appellant, he was declared as juvenile and direction was issued for submission of separate challan to his extent through order dated 7-9-2004. Separate challan was submitted, whereupon charge was framed against the appellant on 28-9-2004, as he pleaded not guilty of the charge and claimed trial; six witnesses appeared from prosecution side, while appellant produced only one witness and also recorded his statement on oath in defence. On completion of trial the court finding him guilty of the offence, thus convicted the appellant to suffer rigorous imprisonment for life with fine of Rs.100,000, in default of payment further suffer imprisonment for a term of one year. Feeling aggrieved of the conviction the appellant filed instant appeal, which is pending for adjudication.
2. It is contention of the appellant that . The trial Court failed to consider the provisions of section 22 read with section 21 of Control of Narcotic Substances Act 1997, which is mandatory in nature in respect of arrest, seizure and detention. Further, admittedly the recovered heroin and other articles were handed over to P. W.2, which were taken into possession by Investigation Officer (P.W.4) in Headquarter, which was again handed over to the complainant which remained in their custody.
3. The legal provisions are violated. Despite assertion of Investigation Officer he was not competent to investigate, while the investigation was not conducted properly, this aspect was not considered by the trial court which highly prejudiced his case. Furthermore, the material which favoured him was not considered, while the material which favoured the prosecution was accepted by the trial Court, which is against the norms of justice. The appellant prayed for setting aside of impugned judgment and he be acquitted of the charge.
4. Written arguments were filed by the counsel for the appellant, wherein it is his contention that it has been admitted by P.W.1 that the recovered articles and vehicle are in their possession at headquarter, while all the proceedings were held at Fort by Naib Resaldar, no proceedings were held at the spot, all the recovery memos were prepared at Fort, also appellant was not present at said occasion. The investigating officer never visited the site of occurrence, nor prepared the site plan, neither any article was recovered in his presence. Further, a specific plea was taken by him in his defence, that he was passenger in the vehicle, while have no concern with vehicle or articles.
5. Despite admission of investigating officer' that the accused/appellant told him that he boarded in the vehicle from Naukundi to bring the luggage of his father from Taftan, who had been retired recently and he is a student boarded on vehicle as passenger, the trial Court failed to appreciate the same.
6. From perusal of material placed on record certain facts are found to be admitted. First, surely the appellant was apprehended from the spot boarding in the vehicle Siapa, which was driven by co-,accused Ghulam Jillani, whereon empty cans/drums were loaded, during checking of vehicles made by FC personnel. Secondly at spot no proceedings were held, rather on recovery of alleged narcotics both the vehicles and all the four persons were brought to Fort of Kharan Rifles at Taftan, whereafter, written report was sent for registration of F.I.R. To Levies Thana. While Naib Rasaldar Levies was called at the Fort, who carried out the proceedings. i.e. Memo. Of recovered articles were prepared, articles recovered were weighed, sealed parcels were prepared and custody of accused persons were handed over to him. It is also an admitted position that after completion of above mentioned proceedings all the articles were again handed over to the FC Authorities, which remained in their custody till producing them before the court. The prosecution, is required to establish the recovery of contraband articles from the vehicle and also has to establish that the recovered material was in conscious possession of the appellant. P.W.1 Major Umar Farooq and P.W.3 Muhammad Amir are the eye-witnesses of the occasion, they both deposed about the occurrence, according to them they at first, while doing routine checking, . Stopped vehicle Toyota Hilux two persons boarded therein, while a satellite phone was recovered from them, whereafter, second vehicle Siapa reached, which was loaded with empty drums ('Y ), on checking one of them was found heavy, which was checked on suspicion, whereupon 19 packets were recovered from it, both the accused Ghulam Jillani and Ghulam Shabbir, present appellant, were boarded in the vehicle. Both the vehicles and all the four persons were brought to Fort Taftan and written report for registration of F.I.R. Was sent. Both the witnesses corroborated statement of each other, there is no contradiction in their statements, while P.W.2 Mushtaq Ahmed is the person to whom the articles and persons apprehended from the site were handed over by P.W.1 complainant at Fort, while all the proceedings regardipg preparation of recovery memo. And parcels were held in his presence and he also received back all the articles to place them in safe custody. P.W.4 Rasool Khan is Naib Resaldar Levies Taftan, who acted as Investigation Officer, prepared the seizure memos, weighed the recovered suspected material, prepared sealed parcels of samples taken from the material and the remaining one, also handed over the same to P.W.2 after obtaining the receipt. To this extent there is no contradiction between these two witnesses. P.W.5, Rafique Tareen, who was posted as Tehsildar Taftan at relevant time produced analysis report Exh.P/5-A, as per the same the suspected material is heroin.
7. As per appellant the investigation of the case was made by an unauthorized person, while the provisions of sections 21 and 22 of Control of Narcotic Substances Act 1997 were not fulfilled.
8. Though P.W.4 Naib Resaldar Levies admitted during course of cross-examination that he was not competent to conduct investigation, but added to the same that he obtained sanction from the competent Authority, whereafter, carried out the investigation. He produced said sanction as Exh.P/4-B, which reveals that the Judicial Magistrate, Taftan allowed him to conduct the proceedings in absence of Tehsildar. As per provisions contained in sections 21 and 22 of Control of Narcotic Substances Act, 1997 and even in section 23 of the Act an officer not below the rank of Sub-Inspector of Police, or equivalent is specified to be empowered to take action under said sections. In present case admittedly the entry and search was made by an officer to the rank of Major, while recovery was also effected by him. As far as Naib Resaldar is concerned, he acted in absence of Tehsildar that too with permission obtained from the concerned Judicial Magistrate, as such there seems to be no illegality in the same. Even otherwise, any fault or irregularity committed during course of investigation would not vitiate all the proceedings held thereafter, only in case of any' irregularity which is of such a nature not curable or prejudicial to the case of either of the parties, otherwise not. In present case the defence only wants to take advantage of the fact that the officer who conducted the investigation was not competent to carry out the same, being officer of rank below as mentioned in section-21 of the Act 1997, but no contention of the sort is raised that the investigating officer held the investigation with mala fide intention or in such a manner which is against the norms of law and justice, thus of no legal effect. The Investigating Officer was authorized by the concerned court to proceed with the matter, therefore, in the circumstances there is no occasion to challenge the authority of the officer concerned. The appellant has also failed to point out that due to the same his case is affected and prejudice is caused to him. {2B85EBC0-A36D-47E4-A7C3-78FE98CC6B51}{67D21920-21D9-483D-B1EC-1111F8CDC99E}{2A511A56- DF8C-4AA7-A94C-64F540BBDC6D}As far as recovery of narcotic substance, proved to be heroin, is concerned, the witnesses of the recovery appeared as P. W.1 and P.W.3, who corroborated evidence of each other, no contradiction is pointed out in their statements. In support thereof statement of P.
9. W.3 is recorded. In view of evidence present on record the recovery of suspected material, Heroin, from the drums loaded on the vehicle, wherein the appellant along with driver co-accused Ghulam Jillani was boarded, is established. As it is also an established fact that the said vehicle belonged to co-accused Ghulam Jillani and was also driven by him. Further, the material recovered was neither sealed at the spot, nor samples were taken from it at the time of recovery, rather admittedly the articles along with apprehended persons including the appellant were brought to the headquarters/ Fort by the complainant. The investigation officer (P.W.4) conducted the proceedings at fort. Though it is also an irregularity, but the recovery of the suspected material is established, while no contradiction appeared in statements of the prosecution witnesses. It has also not been established that the FC personnel were interested party, thus falsely planted the recovered material against the appellant and co-accused Ghulam Jillani. As the checking of the vehicles were conducted by the FC personnel, while recovery was also effected during the same, the Levies personnel/ officers were not accompanied to them, who were required to be called at the spot, which was not done. The appellant has not denied his presence in the vehicle and his apprehension from the spot, thus keeping in view the mentioned admitted facts in absence of any allegation of mala fide, this irregularity in the proceedings become of less value, thus does not destroy the case of the prosecution as a whole. The point which remains in hand, which is required to be considered that though this fact has not been denied by the appellant that he was travelling in the vehicle, from which the narcotics were recovered, that the appellant was conscious of presence of the suspected material and also involved in act of transportation of the same. As his presence is not denied by the appellant from the vehicle, which otherwise is not a public conveyance, now in the circumstances the burden lies upon the appellant to establish that he was travelling in the vehicle as passenger having no concern with the recovered articles enabling him to discharge from the offence. In order to prove his contention he recorded his own statement and also produced one witness. According to the appellant he from house of Muhammad Akbar in Nauiundi, proceeded to Taftan to bring luggage of his father, who was employee of Public Health, he boarded in vehicle of Ghulam Jillani. The FC personnel stopped and checked the vehicle wherein empty drums were loaded, after checking they were brought to the Fort. There were three vehicles, out of which one was released with two persons and they were told that heroin has been recovered from the vehicle. No heroin was recovered from their vehicle. While the only defence witness Muhammad Akbar deposed that 6/7 months back Shabbir (appellant) visited his house and spent night there, on his query he (appellant) told that he was going to Taftan to bring the stuff. While in the morning he boarded in with Jillani at road. During course of cross- examination he was unable to explain that why the appellant along with co-accused was arrested by the Militia/ FC personnel. He further admitted that in his NIC his permanent and present address is mentioned as Killi Faisal Colony Dalbandin District Chagai. He added to it that he had been married in Naukundi. According to him he is residing in Naukundi from last four years. It is to be noted that the appellant is also resident of Faisal Colony Dalbandin. The witness did not produce any document, from which it can be ascertained that he is presently residing .At Naukundi. Both the appellants and his witness are residents of Faisal Colony Dalbandin. It is also to be noted from the papers present on record that co-accused Ghulam Jillani is also resident of Faisal Colony Dalbandin. Both the accused persons and the witness are residents of same area. Though the investigating officer while recording his statement as P.W.4 in course of cross-examination admitted that accused Shabbir (appellant) told him that he boarded in the vehicle from Naukundi, to bring the luggage of his father, who had been retired from PHE recently, further he, is student of school, while boarded in vehicle as passenger. The witness further deposed that as per accused Ghulam Jillani appellant has no concern with the recovered material. Though this statement made by the co-accused before Investigating Officer, exonerating the appellant, but is of less value. As neither disclosure memo. Has been prepared, nor any statement of the co-accused was recorded as confessional statement as required under law. The mere statement made before Investigating Officer about his non-involvement has to be established by the appellant, apart from the same in view of above the situation, that his presence in the vehicle at the time of recovery is not denied.
10. The witness appeared on his behalf also looses his credibility, when he himself unable to establish his present residential address at Naukundi.
11. From the whole set of evidence these facts are come on record that the presence of appellant in vehicle driven by co-accused Ghulam Jillani, from where contraband article, proved to be heroin, was recovered has been established. Further, the appellant and co-accused are residents of same area/colony, while boarding in vehicle from Naukundi is not established, the only defence witness also unable to establish his residence at Naukundi, rather he is also resident of Faisal Colony Dalbandin, thus the version taken in defence looses its weight. The trial Court has properly assessed the material present on record and come to the right conclusion. No misappreciation and misreading of evidence is established by the appellant. As far as plea of false implication in the case while releasing the real culprits is concerned, is also not established as he (appellant) is not sure about existence of any enmity between him and the complainant Major. No mala fide on the part of FC personnel or even against Levies Personnel are asserted nor established. There is material against the appellant connecting him with commission of the offence without any reasonable doubt.
12. In view of above discussion the appellant has failed to make out any case in his favour for interfering in the decision arrived by the trial Court, which is hereby upheld. Instant appeal is dismissed being without merits.