' IMAM BUX BALOCH, J.---By this Criminal Jail Appeal the appellants assailed the judgment dated 12-2-2009, passed by the learned Special Judge, C.N.S.A., Ghotki in Special C.N.S.A. No,13 of 2005, the State v. Naveed and another, arising out of Crime No,144 of 2005 of Police Station Ghotki, registered for offence under section 9(c) of the Control of Narcotic Substances Act, 1997, convicting the accused to undergo imprisonment for life and to pay fine of Rs,300,000 each and in default of payment of fine they shall further suffer R.I. For one year more. The benefit of section 382-B, Cr.P.C.
Was also extended to the accused.
2. Brief facts of the case are that on 8-7-2005 at 0045 hours at National Highway near Brohi Mori, the present accused were found in possession/ transporting 25 maunds of charas, two Kalashnikovs with magazines and bullets, by complainant/S.H.O. Rana Nasrullah of Police Station Ghotki, when they along with absconding accused Mukhtiar, Gulzar Khan and Shah Hussain were travelling in a Wagon bearing Army Plate No,191-7428, which was coming from Punjab side. The accused were put under arrest and property was sealed at the spot, then the accused were brought at Police Station Ghotki, where they were booked under section 9(c) of the Control of Narcotic Substances Act, 1997 and separate F.I.Rs, under section 13(d) of the Arms Ordinance were also registered against each of the accused. The charge was framed, to which the appellants have denied and claimed to be tried. During the trial the prosecution examined complainant Inspector Rana Nasrullah as P.W.1, he has produced Roznamcha at Exhibit 10-A, mushirnama for arrest and recovery at Exhibit 10-B, F.I.R. No,144/2005 at Exhibit 10-C, mushirnama for recovery of uniforms, caps and belts at Exhibit 10-D and Chemical Examiner's Report at Exhibit 10-E and WHC Abdul Rehman as P. W. 2 at Exhibit 11. After completing the trial the statements of the Appellants were recorded under section 342, Cr.P.0 to which both the appellants have denied the prosecution's allegations and stated that they are innocent and they have been falsely implicated by the police. They further stated that. While they were travelling in a Coach for Karachi, being Pathans by caste, they were arrested and the alleged charas has been foisted upon them by the police. After hearing the learned Counsel for the accused/applicants the impugned judgment was passed.
3. We have heard Mr. Abdul Baqi Jan Kakar, learned counsel for the appellants and Mr. Zulfiqar Ali Jatoi, learned Deputy Prosecutor-General for the State.
4. The , learned counsel for the appellants contended that the appellants were taken from Coach being Pathans by caste and the charas and other properties, two Kalashnikovs, magazines/bullets and Army uniforms, have been foisted upon the appellants by the Police after letting off the real culprits. He submitted that the property, which was sent to the Chemical Examiner as per mushirnama is different, which creates doubt in the prosecution case. He submitted that the complainant is also Investigator of the case and that P.W.2 is a subordinate police official, hence no reliance could be placed upon the testimonies of the prosecution witnesses, who are the police officials. He further submitted that no independent person was cited as witness in support of prosecution case. He submitted that a slightest doubt is to be extended in favour of the appellants/accused. He further submitted that only one circumstance is sufficient for extending .The benefit of doubt to the appellants. He has placed reliance on the following case-law:--
(1) 2005 YLR 605 GHULAM SIDDIQUE v. THE STATE
(2) 2007 YLR 160 Messrs SHAMS AND BROTHERS v. GOVERNMENT OF PAKISTAN and others
(3) 2007 YLR 3096 BILAL v. THE STATE
(4) 2005 M LD 501 ZAREEF KHAN v. THE STATE
(5) 2009 YLR 646 ERAN GUL and others v. THE STATE
5. On the other hand Mr. Zulfiqar Ali Jauni, learned Deputy Prosecutor-General submitted that the prosecution has established its case beyond any shadow of reasonable doubt. He contended that the learned counsel for the appellants has not pointed out any discrepancy/contradiction in the prosecution evidence. He submitted that the prosecution witnesses are unanimous on each and every aspect of the case. He submitted that the complainant had arrested the appellants and seized the Wagon, bearing Army number plate and that huge quantity of charas weighing 25 maunds and two Kalashnikovs were also recovered from the possession of the appellants, who were wearing Military uniforms disclosed that they are Army Officers and Jawans. He submitted that the police officials have no enmity with the appellants who are Pashto speaking belong to Mardan District, Khyber Pakhtoon Khwa. He submitted that the evidence of the police officials could not be brushed aside. He further submitted that 21 kilograms of charas from the bags and slabs were taken and the same was sent for chemical examination and the chemical report is in positive.
He has placed reliance on the following case-law:-
(1) 2008. SCMR 1254 ZAFAR v. THE STATE
(2) 2007 M LD 169 BABAR ALI alias SAJOO v. THE STATE The learned D.P.G. Submitted that the learned trial Court has rightly convicted the appellants.
6. We have considered all aspects of the case with the assistance of the learned counsel for the appellants and the learned D.P.-G. And have minutely examined the evidence available on record.
P.W.1 Rana Nasrullah has categorically stated that the appellants, wearing Army uniforms, travelling in a Wagon bearing Army and Rangers number, and two Kalashnikovs and 25 maunds charas were recovered from their possession P.W.2 WHC Abdul Rehman also stated the same facts as stated by P.W.1 Rana Nasrullah. The evidence of P.W.2 WHC Abdul Rehman corroborated the evidence of P.W.1 Rana Nasrullah. The recoveries effected from the possession of the appellants are corroborative evidence of the complainant and .WHC Abdul Rehman. After scrutiny, we have not found any major discrepancy or contradiction in the prosecution evidence, the chemical report is in positive, the police officials could not foist huge quantity of charas weighing 25 maunds and two Kalashnikovs, which are not easily available with the police. The objection raised by the learned counsel for the appellants that the complainant is the Court and after showing good cause for the omission of the said witnesses from the list; and if the Court grants such permission, it shall record reasons for so doing.
(3)
Investigating Officer and other prosecution witnesses are 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.1, Exh. P.3. 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."
7. During trial lengthy cross-examination was conducted but nothing was found favourable to the appellants. As regards the non-compliance of section 103, Cr.P.C. Is concerned, suffice to say that section 25 of the Control of Narcotic Substances Act specifically excludes the provisions of section 103, Cr.P.C., hence non-association of members of the public in the recovery proceedings is neither a requirement of law nor an absolute rule. We have examined the prosecution evidence we found that the recovery and arrest of the appellants was effected in odd hours of the night from the National Highway and no public witness could be available at such time. As regards the contention of learned counsel for the appellants that the property, which was sent for chemical examination as shown in the memo of arrest and recovery is different from the property received by the Chemical Examiner, we have examined the mushirnama of arrest and recovery and Chemical Examiner's report, we are unable to accept the contention of the learned counsel for the appellants.
We have also examined the chemical report, 21 Kgs. Of charas, which was taken from the charas recovered from the possession of the appellants was sent to the Chemical Examiner and that the chemical report also revealed that 21 Kgs. Of charas was received by the Chemical Examiner and that the report is in positive. We have also examined the case-law relied upon by the learned counsel for the appellants but the same are distinguishable from the facts and circumstances of the instant appeal. We have also found another aspect of the case which is that once the prosecution has prima facie established its case then under section 29 of the Control of Narcotic Substances Act the burden shifts on the accused to prove contrary to the plea of the prosecution.
Reliance is placed on the cases of:--
(1) Kashif Amif v. The State PLD 2010 Supreme Court 2053
(2) Ismaeel v. The State 2010 SCM R 27
(3) Muhammad Arshad v. The State 2007 SCM R 1328.
(4) Mst. Taj Bibi v. The State 2007 SCM R 1591.
8. The prosecution had discharged its initial onus while proving that the substance was recovered from the appellants is charas as opined by the Chemical Examiner and that the defence had failed to discharge its burden in terms of section 29(d) of the Control of Narcotic Substances Act. The prosecution established that the person who is found in possession of the narcotics has committed an offence as held in the case of Ikram Hussain v. The State 2005 SCM R 1487. In the case in hand the prosecution had discharged its initial burden' while proving that the narcotics were recovered from the appellants, as such, the burden had been shifted to the appellants to prove their innocence, which they-failed to do.
' For all the foregoing reasons, we see no merits in the instant appeal, which was dismissed by us by our short order dated 16th November, 2011 and these are the reasons for the same.