' SYED SAJJAD HASSAN SHAH, J.---Through this judgment, we intend to dispose of the instant criminal appeal filed by Jamal Shah and three others, appellants-convicts against their conviction and sentence under section 9 (c) Control of Narcotic Substances Act, 1997, awarded by learned Judge Special Court-II, Takhtbhai, Mardan vide judgment dated 5-7-2011 as under:-- "From the truthful and confidence inspiring evidence of prosecution, I am satisfied that all the accused facing trial were carrying ten kilograms (10 Kilo Grams) charas, hence, they each are convicted and are sentenced to undergo ten (10) years RI each and they each shall pay fine of Rs,1,00,000 failing which they each shall undergo one year's SI. "
2. The prosecution story as contained in No, 207,dated 5-3-2011 is that a Murasla received in the Police Station, Shergarh that during the course of Naqabandi at about 1430 hours, a Motorcar bearing No,KT-363-JY-Islamabad came from Mardan side, which was intercepted, wherein, Jamal Shah, appellant-convict was sitting on driving seat, whereas, Muhammad Naseem, appellant- convict was sitting on front seat, while on rear seat Shabir Ahmed and Tahir Shah were sitting. The police party deboarded all the appellants-convicts from the motorcar. On search ten numbers of packets Charas Pukhta were recovered from the petrol tank of the motorcar, on weighing, it comes to 10000 grams, each packet containing 1000 grams. Out of recovered charas, from each packet 5/5 grams charas were separated and sealed in the parcels Nos.1 to 10 and was sent for FSL analysis on 5-3-2011, whereas, the remaining bulk of narcotics weighing 9950 grams were sealed into separate parcel.
3. Thereafter, P. W.1 Zarif Khan, S.I. Prepared the site plan at the potation of Javed Khan, ASI, wherein, Point No,6 is indicated that the contraband was recovered in the presence of all the appellants- convicts from the petrol tank of the motorcar. The Investigating Officer has applied for the police custody of the appellants-convicts vide his application Exh.P.W y 1 and the learned Judicial Magistrate awarded two days police custody. After expiry of the said police custody vide application Exh.P.W.1/2, the appellants-convicts were produced before the Court for recording their confessional statements but they have refused to confess their guilt before the learned Judicial Magistrate. Thereafter, they were sent to the Judicial Lock-up. The analysis report received and placed on record as Exh.PK, showing the positive result.
4. After completion of investigation, the challan was submitted in the trial Court under section 173, Cr.P.C. The appellants-convicts were charged under section 9(c), C.N.S. Act, 1997 to which the appellants-convicts pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as three witnesses.
5. P.W.1 Zarif Khan, S.-I. Police Station Sher Ghergarh, who is the Investigating Officer of the case. He deposed that after receipt of Murasla and copy of F.I.R., he visited the spot and prepared the site plan Exh.PB at the instance of the complainant and recorded the statement of the P.Ws. Under section 161, Cr.P.C. He further deposed that he applied for the police custody of the appellants- convicts vide his application Exh.P.W.1/1 and obtained two days police custody. He stated that after expiry of the period of police custody of the appellants-convicts, he requested the Court vide his application Exh.P.W.1/2 for recording their confessional statements but they refused to confess their guilt before the learned Judicial Magistrate and were sent to the Judicial Lock-up. He also recorded the statements of accused and received the analysis report of FSL Exh.PK and after completion of investigation he handed over the file to SHO for submission of complete challan against the appellants-convicts.
6. Javed Khan, ASI, Police Post Shago Naqa was examined as P.W.2 and deposed that he along with other police party names appearing in Murasla present at the spot. In the, meanwhile, a Motorcar bearing No,KT-363-Islamabad Aulto came from Mardan side. Jamal Shah, appellant-convict was driving the motorcar, whereas, on the front seat appellant-convict Muhammad Naseem was present, while on the rear seat appellants-convicts Tahir Shah and Bashir were present. They were deboarded from the said motorcar, which was searched in their presence and recovered ten packets charas pukhta from the petrol tank weighing each packet containing 1000 grams, total 10000 grams charas pukhta recovered from the petrol tank of the motorcar. Out of which 5/5 grams contraband separated from each packet and sealed in Parcel Nos.1 to 10 while the remaining was sealed in Parcel No,11 and prepared the recovery memo Exh.P.W.2/1- in the presence of marginal witnesses. He prepared the Murasla Exh.PA/1, and sent the same along with the accused and case property to the Police Station for the registration of the case. The Investigating Officer prepared the site plan at his instance. On the basis of Murasla, the F.I.R. Was registered by Muzamil Khan, SI.
7. Fazal Subhan, FC No,622, Police Post Shago Nap was examined as P.W.3, who was accompanied the police party during the Naqabandi. He narrated the same facts as stated by P.W.2 in his statement as mentioned above.
8. Thereafter, statement of appellants-convicts recorded under section 342, Cr.P.C, wherein, they have denied the prosecution allegation that no contraband recovered from them. They have not disclosed in their statements that the prosecution witnesses are inimical and deposing on account of having any against them. All the appellants-convicts did not opt to appear as their own witness on Oath as required under section 340(2), Cr.P.C.
9. After culmination of the trial, the learned Judge, Special Court, Takhtbhai Mardan convicted and sentenced the appellants-convicts in the manner as mentioned above, hence, the instant appeal filed by the appellants-convicts against their conviction and sentence.
10. The learned counsel for the appellants-convicts inter alia contends that the appellants were implicated in the case with the mala fide of the police. He further contended that the appellants have no concern with the contraband recovered by the police. The learned counsel has emphasized that the appellants belonging to the different parts of the country and their involvement in the instant case not proved on the record. He argued that the statements of the witnesses are inconsistent and there are material discrepancies amongst the statements of P.Ws., whereof, it appears that they were not present on the spot. He further argued that the F.I.R. Was recorded on the basis of Murasla Exh.PA/1, sent by Javed Khan, ASI, who has also prepared the recovery memo Exh.P.W.2/ 1 and the site plan has also prepared at his instance, according to the learned counsel the proceedings conducted by a Police Officer other than the rank of Inspector would be violatary to the provisions contained in section 21 of C.N.S. Act. He further contended that nothing has been recovered from the search of motorcar outside the Police Post, however, the alleged recovery of contraband made inside the Police Post from the petrol tank of the motorcaf, which is not believable. Moreover, the samples were sent to the FSL for chemical examination with the delay of 23 days, as the samples were received on 28-3-2011 in the Laboratory and the prosecution was bound to send the same immediately within the period of 72 hours. Lastly, he prayed for the acquittal of the appellants-convicts from the charges levelled against them.
11. The learned State counsel supported the judgment passed by the learned trial Court and rebutted the arguments by referring that the appellants-convicts were present at the time of recovery of contraband. The learned State counsel further argued that on the pointation of appellant-convict Jamal Shah from the concealed portion of petrol tank of the motorcar the contraband was recovered by the police. He further argued that it was suggested to P.W.1 in his cross-examination on behalf of the appellants-convicts that the charas belongs to appellant- convict Jamal Shah and the rest of the appellants-convicts were not present at the time of recovery of the same.
12. Arguments of the learned counsel for the parties considered and record carefully perused.
13. A perusal of record reveals that the prosecution in support of its case brought on record the available material, which includes F.I.R., Exh.PA, according to which occurrence took place on 5-3- 2011 at 1400 hours while the report lodged on the same day at 1430 hours, there is no delay in lodging of F.I.R. The F.I.R. Was registered on the basis of Murasla Exh.PA/1. The site plan Exh.PB is available on record showing the detail of the place of occurrence. The recovery was effected in the presence of appellants-convicts from a portion of petrol tank of the motorcar. The contraband was recovered vide recovery memo Exh.P.W.2/1, which has been duly attested by two witnesses. The samples taken from the recovered contraband weighing 5/5 grams from each packet and sent for chemical examination to the FSL, which was duly received on 28-3-2011, result Exh.PK, whereof received as positive. The prosecution has produced all the available evidence and succeeded to prove its case against the appellants-convicts.
14. It is important to note that all the documents produced by the prosecution during the trial of the case have gone unquestioned and on behalf of the appellants-convicts no objection was raised at the time of admitting such documents in evidence of the prosecution, which lend support to the prosecution story that the same rings true.
15. All the appellants-convicts belonging to far-flung places and nothing has been brought on record in order to tender explanation that why and how they assembled together and for what purpose they were travelling together in the same motorcar. P.W.1, Zarif Khan, recorded the statements of appellants-convicts under section 161, Cr.P.C. In his cross-examination on behalf of appellants-convicts, the following circumstances have been brought on the record, whereby, the presence of accused Jamal Shah, appellant-convict and others candidly admitted by asking question from the said witness. For convenience sake, the relevant portion of the statement made in the cross-examination is reproduced for ready reference:- "I have also recorded the statements of accused. It is correctly recorded in the statement of accused Tahir and Muhammad Naseem that they were going for picnic. Jamal Shah, accused admitted in his statement that motorcar in question belongs to him and it has also been mentioned in his statement that the narcotics also belongs to Jamal Shah. It is incorrect to suggest that only Jamal Shah accused is responsible for the trafficking of narcotics."
16. It appears from the above statement of P.W.1, that the story of the prosecution fully supported by this portion of cross-examination. Jamal Shah, appellant-convict admittedly owner of the motorcar which was taken into possession by the Investigating Officer. Moreover, the presence of other appellants-convicts is also not disputed and it is further stated that the narcotics belongs to appellant-convict Jamal Shah. The defence plea taken on behalf of the appellants-convicts was that they were going for the purpose of picnic. In order to prove the said plea, they neither opted to make statement on 'Oath nor they produced any defence evidence, therefore, the defence plea is not convincing and we can legitimately draw the presumption that the participation in occurrence of the appellants-convicts and recovery of contraband is fully established.
17. The material aspect of the case as deposed by P.W.1 in his statement, has not been cross- examined on behalf of the appellants-convicts and thus, supported the allegations of the prosecution levelled against them.
18. Similarly, the presence of the police party on the spot at 2-00 p.m. Is also admitted in cross- examination by P.W.2, which is reproduced as under:-- "We have checked till 2-00 p.m., so many vehicles. Before the present recovery nothing was recovered by us from the said checking of the other vehicles. I had checked another motorcar about 5 minutes prior to the checking of the vehicle of instant case."
19. A major portion of the statement of this witness is also not cross-examined about the recovery of the contraband on behalf of the appellants-convicts. This witness was cross-examined, wherein, the recovery of narcotics is also admitted in the following words:- "Jamal Shah accused himself disclosed that the narcotic is lying in the Petrol Tanki of the Car He also admitted that the narcotic in question is his ownership and the narcotic is also belongs to him. It is correct that clue to a machine we separated the Tanki from the motorcar. There was two portions in the tanki, one was for petrol and other was for narcotic. The petrol was not removed from the tanki by me. The mechanic opened the tanki and recovered the contraband from the same then the same was weighed by me through scale.,"
20. Similar statement made by P. W.3 Fazal Subhan in his cross-examination.
21. The appellants-convicts have not explained their presence on the spot in their statements recorded under section 342, Cr.P.C. That why the.) Were accompanying with Jamal Shah in his motorcar. Similarly, what was the purpose of journey, however, going for picnic is not established.
No animosity of any sort with the police was shown by the appellants-convicts for their false implication in the case. Such a huge quantity of contraband could not be foisted without any valid reason.
22. The accused against whom the material as mentioned above is brought on record, his conviction and sentence is fully justified .By the material produced by the prosecution. In support, whereof, reliance placed on case titled Arshad Hussain v. The State (2011 SCM R 1400). The relevant portion is reproduced as under:-- "There is no enmity existed between the parties. The testimony of the eye-witnesses coupled with the report of Chemical Examiner and the recovery from the motorcar was established against the petitioner. There is no material contradiction in the statements of prosecution witnesses to disbelieve them. The defence taken by the petitioner that he get the car is in lieu of money given to. Qaisar Khan Afridi cannot be believed as he failed to verify the availability of narcotics in the said car at the time of delivery of car to him. The impugned judgment of the Peshawar High Court is passed on proper appreciation of material evidence on record."
23. In the above-mentioned case the appeal filed by appellants-convicts is dismissed by the august Supreme Court.
24. The learned counsel for the appellants-convicts pointed out that the accused were implicated in the instant case, they were not in the knowledge of the contraband in the petrol tank of the motorcar, which was driven by Jamal Shah, appellant-convict. As stated earlier that it is the stance of appellants-convicts that they were proceeding for picnic purpose and was not in knowledge of the contraband, which was kept in the petrol tank of motorcar. This version is not plausible and appealing to the prudent mind as it is admitted that the contraband was recovered from the petrol tank, however, it belongs to Jamal Shah, appellant-convict, who is the owner of the motorcar and was driving the same, though was travelling for picnic purpose, however, there is no evidence brought by the appellants-convicts in support of said stance. Moreover, there is no denial that they were not travelling in the motorcar wherefrom the narcotics were recovered from its petrol tank.
Their assembling and travelling together is still shrouded in mystery, therefore, it is not believable.
25. The learned counsel pointed out that there is a delay of 23-days in sending the recovered contraband to the Chemical Examiner for analysis. In this regard, no objection raised about the tampering of contraband. Moreso, nothing is available on record nor anything brought on record in order to show that the contraband was not in safe custody during those days. Mere raising of objection at the time of arguments is not sufficient to declare that the recovery of the contraband is not made from the possession of appellants-convicts. At the relevant time all the appellants- convicts boarded in the motorcar. In above circumstance, the recovery of contraband has not been shattered by any means of evidence.
26. The learned counsel further agitated that the F.I.R. Was firstly recorded under Articles 3/4 of the Prohibition Order but subsequently section of law has been changed to 9-C, C.N.S.A. Is also not of any avail for the appellants-convicts as section of law can be changed at which is legally permissible because there is no prohibition contained on the powers of the Court. Resultantly, this objection also does not serve any purpose.
27. So far as the question of contradiction is concerned, there is no material contradiction in the statements of the prosecution witnesses pointed out by the learned counsel. The statements are consistent, coherent and not suffering from any legal infirmity. In this regard, reliance placed on case titled Faiz Ahmad v. The State (2006 M LD 459), wherein, it was held that:-- "It is correct that the entire prosecution case rests on the testimony of the police employees and by examining their statements we see that there are some discrepancies in their statements for example Nasir Hussain F.G. (P.W.1) stated to have received the parcels in the morning time while Jamshed Ali (P.W.2) stated to have handed over the parcels at night time, Javaid Iqbal (P.W.3) stated that proceedings were completed by Atique Sindhu (P.W.4) while the said Atique Sindhu stated otherwise, but all these discrepancies, minor in nature, or some delay in dispatch of the parcels have no adverse impact on the prosecution case because the statements of the above mentioned witnesses are quite consistent on all material points and their statements find full corroboration."
28. The learned counsel agitated another point that the complainant is an official below the rank of Sub-Inspector, cannot register the case and proceed with the investigation under section 21 of the Act ibid. He further agitated that the entire proceedings in the instant case conducted after registration of the case during the course of investigation, which are illegal and without lawful authority, this Objection also does not hold field because this is not the rule of universal application that in all circumstances, the case would be registered by the Sub-Inspector. Some times the officer of such rank would not be available wherefrom in such cases the concerned officer/official who would wait for his arrival or to proceed further with the case. As such, till the arrival of SI the entire scenario of the place of occurrence can be changed. In this aspect of the case, we are fortified by a case titled Muhammad Younas and others v. Mst. Parveen alias Manu and others (2007 SCM R 393), wherein, it was held that:-- "The other argument of the learned counsel for the respondent No,1 as to the violation of the provisions of sections 21 and 22 of the Act needs to be dealt with. Ordinarily only an officer of the rank of Sub-Inspector or equivalent or above may exercise the powers of arrest and seizure of narcotics. But this is not an absolute rule. There may be cases of extreme urgency requiring prompt action, where an accused is caught with narcotics in his possession by a police officer of a lower rank. Can it be said that such police officer should just let him to go with the narcotics? The answer would certainly be in the emphatic "No". The guilt of innocence of an accused does not depend on the question of competence or otherwise of a police officer to investigate the offence. A trial of an accused is not vitiated merely on the ground that the case has been investigated by an officer who is not authorized to do so unless the contrary intention appears from the language of a statute. The competent court would proceed to determine the guilt or innocence of an accused on the basis of the evidence produced before it irrespective of the manner in which he is brought before it. A somewhat similar view was taken in the cases of M. Abdul Latif v. G.M. Paracha and others 1981 SCM R 1101, State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408, The Crown v. MeMr Ali PLD 1956 FC 106, M.S.K. Ibrat v. The Commander in-Chief, Royal Pakistan Navy and others , PLD 1956 SC 264; Ahmad Khan v. Rasul Shan and others v. The State 1984 SCM R 954 and The State v. Sohail Ahmed and 4 others PLD 1990 FSC 29. We may however, observe that in a proper case, a police officer, if guilt of deliberate usurpation of power and violation of a statute, may render himself liable to disciplinary or penal action or both in accordance with law. The purpose of enacting protective provisions of sections 21 and 22 of the Act seems to be that normally the cases of narcotics being of serious nature should be handled by more responsible police officers.
29. In this regard, reliance placed on another case. Muhammad Hanif v. The State (2003 SCM R 1237) wherein, it was observed that:-- "We are not persuaded to agree with learned Advocate Supreme Court on behalf of petitioner that since the raid was conducted and investigation made by an unauthorized police officer in violation of the mandatory provisions as contained in sections 21 and 22 of the Control of Narcotic Substances Act, 1997 the whole trial has vitiated for the simple reason that arrest, seizer and investigation by an incompetent police officer would not vitiate the trial and at the best such an irregularity can be cured under section 537, Cr.P.C. As it has caused no prejudice to the petitioner.
In this regard, we are fortified by the dictum laid down in State v. Bashir (PLD 1997 SC \408). "
30. More so, the huge quantity of narcotics is recovered from the possession of all the appellants- convicts. It is not a case against an individual rather it is a case against the society. There is no material discrepancies in the statements of P.Ws., supported' by recovery and, the FSL report and promptly lodged the F.I.R. The recovery of contraband was pointed out by Jamal Shah appellant- convict and nothing brought on record in cross-examination, whereby, any benefit can be extended to the appellants-convicts.
31. The prosecution has proved its case beyond any shadow of doubt. The learned counsel for the appellants-convicts failed to point out any illegality or any material discrepancies in the impugned judgment.
32. For what has been discussed above, the instant appeal is hereby dismissed.