SAGHEER AHMAD QADRI, J.---Imtiaz Masih, Ravez Masih and Shahzad Masih, appellants have challenged their conviction and sentence through the above cited Criminal Appeal No.298 of 2008.
They were tried by the learned Additional Sessions. Judge, Attock in case F.I.R. No.71 dated 26-5- 2004 registered at Police Station Jand, District Attock under section 9(c) of the Control of Narcotic Substances Act, 1997 for the recovery of 235 K.G. Charas as well as 7 K.G Opium from their possession.
2. As per F.I.R. (Exh.PA) Amir Khan, S.-I. Lodged complaint (Exh.PE) mentioning that on 26-5-2004 he received information through Mukhbar that a Suzuki Khyber bearing Army Number Plate was coming towards Kohat Road in which three suspicious persons were travelling. On this information a police party headed by Amir Khan, S.-I./S.H.O. Was constituted including Muhammad Akram, A.S.- I., Khan Badshah, A.S.-I., Muhammad Ajaib, ASI, Noor Muhammad, Constable-475, Muhammad Safdar, Constable-495, Tariq Parooq, Constable-504, Noor. Zaman, Constable-865, Hubdar Hussain Shah, Constable-325, Muhammad Yaqoob, Constable-725 made `Naka Bandi' in front of Police Station Jand at Pindi Kohat Road. At 9-00 a.m. a car came from Kohat side in which 3 persons were travelling was stopped. Front number plate was missing whereas on rear side there was a fake army number plate 90-0776. One person was sitting on front seat adjacent to driver seat and the third one was sitting on rear seat. All the three persons were taken into custody who subsequently disclosed their names as Imtiaz, Shahzad and Ravez sons of Rasheed Masih, Caste Christian, residents of Karwan Road, Ittehad Colony, Muslim Abad, House No 41, Tehsil and District Mardan. On search of the car Charas lying in boot, underneath rear seat of the vehicle and mats in front of rear seat total weighing 235 K.G. Including 7 K.G. Opium lying underneath the mats of front seat was recovered. Out of the recovered Charas and Opium 10/10 grams were separated for, chemical analysis and the instant case was registered. Charas (Exh.P1) was sealed into seven parcels whereas Opium (Exh.P2) was sealed into two parcels. The car Exh.P3 besides two number plates (P4/1 to P4/2) were also taken into possession vide memo Exh.PB.
3. After investigation report under section 173, Cr.P.C. Was submitted in court and the appellants were charged under the aforementioned offence to which they pleaded not guilty and claimed trial.
4. Prosecution examined four witnesses in order to prove the charge. P.W .1 Jumma Khan, Constable-568/Moharrir stated that on 26-5-2004 he received complaint (Exh.PE) sent by Muhammad Amir, S.I. Through Hubdar Hussain Shah, Constable which he correctly converted into formal F.I.R. (Exh.PA). He further disclosed that on the same day Muhammad Amir, S.-I. Handed over him nine parcels including seven parcels of Charas and two Opium for safe custody in the police Malkhana. Besides these parcels he also received two sample parcels containing Charas and Opium for onward transmission to the office of Chemical Examiner which he sent on 28-5-2004 through Sher Afgan, Constable. P.W.2 Sher Afgan, Constable deposed about the transmission of sealed parcels of Charas and Opium to the office of Chemical Examiner on 28-5-2004. P.W.3 Khan Badshah, A.S.-I. And P.W.4 Amir Khan, S.-I./S.S.H.0. Are the recovery witnesses who supported the contents of the F.I.R. (Exh.PA). P.W.4 Amir Khan, S.-I. Also conducted the investigation of the case who after preparation of necessary police papers submitted challan in court. After tendering in evidence the reports of Chemical Examiner (Exh.PG and Exh.PH) the prosecution closed its case.
5. After closure of the prosecution evidence the learned trial Court examined the appellants under section 342, Cr.P.C. Wherein they asserted their false implication in this case. While replying Question No.6 Imtiaz Masih, appellant No.1 stated as under:- "I am innocent. Actually I am coming on Bus from Kohat when the said Bus reached in front of Police Station Jand the Police official deboarded me from the Bus and took me to Police Station and planted the charas and opium upon me falsely and when the police produced me before the court where I know that the said case was registered against me. 1 have no knowledge about the above said narcotics. However, all the P. Ws. Are police officials and they deposed falsely on the asking of Investigating Officer."
Similarly, Ravez Masih, appellant No.2, while, replying to question No.6 deposed as under:-- `I am innocent. No DSP or any other higher officer came at the Police Station nor I was presented before any such officer. I have seen the red and green packets of polythen bags .Of charas and opium each containing of 10 litars in the court. I applied for inquiry before DPO Attock and also at the Police Station Jand but no action has so far been taken. The Investigating Officer did not record statement of my defence witness. I have no concern whatsoever with drug maphia and illegal arms now or in the past. The present arms case and narcotics case are totally false and mala fide.
First time I saw the Investigating Officer in the court. I am noble and respectable citizen. I am previously non convict. All the P. Ws. Are police officials and subordinate of Investigating Officer they deposed on direction of Investigating Officer just to strengthen their case."
Same was the statement of. Shahzad Masih, appellant No.3 as mentioned above. In defence the appellants produced copy of report under section 173, Cr.P.C. (Exh. DA) in case F.I.R. No.13 dated 26- 5-2004 under section 13/20/65, A.O., charge sheet (Exh.DB), copies of statements of Muhammad Akram, A.S.-I. (Exh.DC and Exh.DJ), copies of statements of Abdul Rab, Inspector Legal (Exh.DD and DK), copies of statements of Jumma Khan (Exh.DE and DL) copies of statements of Muhammad Amir (Exh.DF and DM), copy of statement of Shoukat Masih (Exh.DG), copy of parcha remand (Exh.DH), copy of report under section 173, Cr.P.C. (Exh.DI), copy of the statements of Boota and Younas (Exh.DN) and closed their defence.
6. The learned trial Court after conclusion of trial vide judgment dated 9-10-2008 convicted all the three appellants under section 9(c) of the Control of Narcotic Substances Act, 1979- and sentenced to imprisonment for life each with fine of Rs.1,00,000 each and in default of payment thereof to undergo further imprisonment for six months' each. Benefit of section 382-B, Cr.P.C. Was, however, extended to the appellants.
7. Feeling aggrieved by that judgment the appellants have challenged their conviction and sentence through this criminal appeal.
8. Learned counsel for the appellants argued that the appellants are innocent who have falsely been involved in the case; that no narcotics was recovered from their possession; that the statements of the recovery witnesses are full of material contradictions regarding colour of the narcotics and the pistol recovered from the appellants; that the complainant P.W.4 Amir Khan, S.-I.
Himself conducted the investigation of the case which prejudiced the case of the appellants; that the sample was not taken &dm each packet hence all the recovery was fake and planted on the appellants; that the car was being run by Imtiaz Masih, appellant No.1 and there is nothing in prosecution evidence to suggest that his co-accused had knowledge of the narcotics in secret cavities of the car. Prayed that benefit of doubt be extended to the appellants and they be acquitted of the charge while accepting this criminal appeal.
9. On the other hand, learned D.P.-G. While controverting the contentions raised by the learned counsel for the appellants has argued that huge quantity of 235 KG Charas and 7 KG Opium was recovered from appellants possession while they were travelling in the car which was secured into possession and the witnesses P.W.3 Khan Badshah, A.S.-I. And P.W.4 Amir Khan-S.-I./complainant who also conducted the investigation of the case have fully proved the recovery of Charas/Opium; that the remaining aspects of the investigation i.e. Registration of the F.I.R., forwarding of the sample parcels to the office of Chemical Examiner and the positive reports of Chemical Examiner are available on record which fully connect the appellants with the commission of the offence that defence version put forward by the appellants is afterthought and the learned trial Court has observed that minor discrepancies were pointed out by the appellants the conviction was rightly passed against them. Prayed that this criminal appeal be dismissed.
10. We have heard the learned counsel for the parties and perused the record.
11. As already mentioned according to the complaint (Exh.PE) on the basis of which F.I.R. (Exh.PA was recorded as the three appellants, namely, Imtiaz Masih, Ravez Masih and Shahzad Masih were apprehended on 26-5-2004 at about 10-30 a.m. When they reached at the alleged place of recovery while travelling in a Suzuki Khyber Car having fake number plate bearing Army No 90- 0776. The car (Exh.P3) being driven by Imtiaz Masih, appellant No.1 and when checked it found contained Charas in its underneath mats as well as in the boot of the car in the shape of packets which when weighed it collectively became 235 K.G. While Opium weighing 7 K.G. Was also recovered. According to the complaint Exh.PE the contents of which are proved through the statement of P.W.4 Amir Khan, S.I. He secured 10/10 grams of Charas and Opium each out of the recovered substance made the same into sealed parcels and remaining Charas and Opium was also sealed in separate parcels which subsequently at the time of trial was exhibited as Charas Exh.P1 and Opium Exh.P2. The recovery memo. Exh.PB of all recovered articles including Charas (Exh.P1) Otqum (Exh.P2), Suzuki Khyber Car (Exh.P3), two fake army number plates. (P4/1-2), Registration Book (Exh.P5), key of the car (Exh.P6) its stepny (Exh.P7) was prepared. During trial the prosecution got examined total four witnesses out of which P.W.3 Khan Badshah, A.S.-I. And P.W.4 Amir Khan, S.-I./S.H.O. Appeared as recovery witnesses. P.W.4 Amir Khan, S.-I. Also acted as complainant/Investigating Officer of the instant case. Both of these witnesses were cross- examined at length by the learned defence counsel at the trial stage. They, however, remained consistent in respect of all material aspects i.e. Interception of the appellants at the alleged place of arrest while travelling in the car, search of the car, recovery of Charas and Opium, preparation of the sample parcels and then subsequent proceedings conducted for securing these narcotics into possession. Although learned counsel for the appellant during arguments tried to point out certain minor discrepancies between the statements of these two recovery witnesses like time, manner as well as arrest of the appellants but these discrepancies are of miner nature and are not sufficient to discard the evidentiary value of these two witnesses.
12. As far as the objection raised by the learned counsel for the appellant that although there was a prior information with the complainant/I.O. P.W.4 Amir Khan, S.-I. But he did not associate any of the public witness at the time of alleged recovery and thus violated the provision of section 103, Cr.P.C.
In view of the provision of section 25 of the Control of Narcotic Substances Act, 1997 whereby the application of section 103, Cr.P.C. Is excluded this objection is of no value. Even otherwise it is not possible now a dais by the police to associate any public witness in such like cases as people generally do not cooperate with the police under the fear of earning any enmity with the drug paddlers, etc.
13. As far as the objection raised by the learned counsel for the appellants that only 10 grams each of the recovered substances was secured from the total Charas as well as Opium for, sample purposes which is not sufficient but in view of the defence version raised by the appellants when they outrightly denied that any substance was recovered from their possession this objection is of no value. Had the appellants C challenged the remaining substance during their defence that it was not a narcotics then this objection would have some value but in the circumstances when they are not admitting rather agitating that they have been falsely involved in this case this objection is without any substance. Therefore, the reports of the Chemical Examiner (Exit. PG and Exh.PH) were rightly believed by the learned trial Court. No defence was led by the appellants during trial stage rather they only remain contended while submitting certified copies of the statements of some witnesses in their defence in case registered under section 13 of the Arms Ordinance (No.XX), 1965. Even in those statements the witnesses examined only stated that the appellants did not belong to any drug paddlers gang, etc. Or they have no previous records of involvement in such like cases. Those witnesses admitted that they were not present at the spot when the appellants were arrested by the police.
14. The arguments advanced by the learned counsel whereby he raised objection that P.W.4 Amir Khan, S.4. Was the complainant and he also acted as Investigating Officer thus whole of the proceedings were vitiated as no independent investigation in this case was conducted. D Although no such objection was raised at the trial stage nor any question was put to the Investigating Officer in this respect, however, there is no absolute rule that a police officer who in such like cases specially in narcotic cases where the persons intercepted/arrested and from their possession narcotics/contraband are recovered naturally the Incharge of that police party has to act as complainant and in these cases investigations are to be carried on then and there and investigation only can be carried on at the spot to interrogate the accused, prepare the relevant documents/memos. About the recovery of the substance, etc. And then to proceed further subsequently towards the remaining part of the investigation. In such like cases if objection is not raised that accused was prejudiced by the investigation and actual prejudice caused is proved, only on this ground trial cannot be taken as vitiated. For guidance reference can be given to the illuminated judgment delivered by the Full Bench of the Hon'ble Supreme Court of Pakistan in State through Advocate-General, Sindh v. Bashir and others (PLD 1997 Supreme Court 408) wherein His Lordship Mr. Justice Nasir Aslam Zahid while agreeing with the judgment of his learned brothers including Ajmal Mian, J. Added the following note:-- "I agree with the judgment of my learned brother Ajmal Mian, J. However, I am adding this note as I would like to make certain observations regarding the first submission made on behalf of the respondents that, since Inspector Shamim Ahmed of C.I.A. Was the complainant in this case as well as the Investigation Officer, the trial vitiated. In support of the said proposition, reliance had been placed on the case of Aksar Khan v The State 1955 MLD 1237 in which learned Single Judge of the Peshawar High Court held that a police Inspector could not legally assume dual charge as a complainant and as an Investigator, as it had rendered the trial a sheer mockery. I agree with Ajmal Mian, J. That we, are unable to subscribe the said broad legal proposition and that there is no legal prohibition for a police officer to be a complainant if he is a witness to the commission of an offence and also to be an Investigation Officer so long as it does not, in any way, prejudice the accused person."
Resultantly, the objection raised by the learned counsel for the appellants is without any substance.
14. In view of the circumstances when the prosecution was able to prove the recovery of, narcotics from the appellants, its keeping in safe custody, sending the sample parcels to the office of Chemical Examiner intact and subsequently positive reports of the recovered narcotics, the learned trial Court rightly convicted all the three appellants. Resultantly, this criminal appeal being devoid of any force, is hereby dismissed.