' IMAM BUX BALOCH, J.-By this Criminal Jail Appeal the appellant assailed the judgment dated 12-2- 2009, passed by the learned Sessions Judge, Ghotki in Sessions Case No,37 of 2005, the State v.
Zafar Iqbal, arising out of Crime No,146 of 2005 of Police Station Ghotki, registered for offence under section 13(d) Arms Ordinance, 1965, whereby the appellant was convicted to undergo R.I. For three years and to pay fine of Rs,10,000 and in default of payment of fine he shall suffer R.I. For six months 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 45 hours at National Highway near Brohi Mori, the present accused were found in possession/transporting 25 mounds of charas, two Kalashnikovs with magazines and bullets, by complainant/S.H.O. Rana Nasrullah of Police Station Ghotki, when the present appellant along with co-accused Zafar Iqbal and absconding accused Mukhtiar, Gulzar Khan and Shah Hussain were travelling in a Wagon bearing Army Plate No,91-7428, 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 13(d) Arms Ordinance, separately, and a case under section 9(c) of the Control of Narcotic Substances Act, 1997 was also registered against them. The charge was framed, to which the appellant has denied and claimed to be tried. During the trial the prosecution examined complainant. Inspector Rana Nasrullah at Exhibit 08, he has produced copy of Roznamcha entry at Exhibit 8/A, mushirnama of arrest and recovery at Exhibit 8/B and F.I.R. Of the case at Exhibit 8/C and also examined WHC Abdul Rehman Khoso at Exhibit 9. After completing the trial the statements of the appellant was recorded under section 342, Cr.P.0 to which the appellant had denied the prosecution's allegations and stated that he is innocent and he has been falsely implicated by the police. He further stated that while he was travelling in a Coach fdr Karachi along with his co-accused, being Pathans by caste, they were arrested and the alleged charas, Kalashnikovs and other articles have been foisted upon him and his co-accused by the police.
After hearing the learned counsel for the accused/applicant the impugned judgment was passed.
3. I have heard Mr. Abdul Baqi Jan Kakar, learned counsel for the appellant and Mr. Syed Sardar Ali Shah Rizvi, Assistant Prosecutor General for the State.
4. The learned counsel for the appellant contended that the appellant was taken from Coach being Pathan by caste and the charas and other properties being two. Kalashnikovs, magazines/bullets and Army uniforms, have been foisted upon the appellant by the Police after letting off the real culprits. He submitted that the case property viz. Kalashnikov has been foisted upon the appellant and all other recoveries were also managed by the police. 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 appellant.
5. On the other hand Mr. Syed Sardar Ali Shah Rizvi, learned Assistant Prosecutor General submitted that the prosecution has established its case beyond any shadow of reasonable doubt. He contended that the learned counsel for the appellant 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 appellant and co-accused and seized the Wagon, bearing Army number plate and that huge quantity of charas weighing 25 mounds, two Kalashnikovs, bullets and magazines were also recovered from the possession of the appellant and the co-accused, who were wearing Military uniforms disclosed that they are Army Officers and Jawans. He submitted that the police officials have no enmity with the appellant who is Pashto speaking belonging to Mardan District, Khyber Pakhtoon Khawaja. He submitted that the evidence of the police officials could not be brushed aside. He further submitted that apart from recovery of Kalashnikov 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 2008 SCM R 1254, ZAFAR v. THE STATE. The learned D.P.-G. Submitted that the learned trial Court has rightly convicted the appellant by taking a leading view.
6. I have considered all aspects of the case with the assistance of the learned counsel for the appellant and the learned A.P.-G. And have minutely examined the evidence available on record.
P.W.1 Rana Nasrullah has categorically stated that the appellant and the co-accused, wearing Army uniforms, travelling in a Wagon bearing Army and Rangers number, two Kalashnikovs and 25 mounds of charas were recovered from their possession which is a corroborative evidence of the complainant and the WHC Abdul Rehman. After scrutiny, I have not found any major discrepancy or contradiction in the prosecution evidence, the police officials could not foist the huge quantity of charas weighing 25 mounds and two Kalashnikovs, which are not easily available with the police.
The objection raised by the learned counsel for the appellant that the complainant is Investigating Officer and witness of occurrence and that the recovery rendered the prosecution case doubtful having no force. This aspect of the case was discussed in the case of ZAFAR supra, wherein the honourable Supreme Court of Pakistan has observed that where the defence has not produced any such evidence to establish animosity by the prosecution, the evidence of such police officials could not be brushed aside merely they belong to the police department. The Honourable Supreme Court has observed as under:- "The police employees are the competent witnessed like any other independent witness and their testimony cannot be discarded merely on the ground that they are the police employees as laid down in the cases of Muhammad Azam v. The State PLD 1996 SC 67, Muhammad Hanif v. The State 2003 SCM R 1237, Riaz Ahmad v. The State 2004 SCM R 988 and Naseer Ahmad v. The State 2004 SCM R 1361.
So far as the objection of the learned counsel for the appellant that the Investigating Officer is the complainant and the witness of the occurrence and recovery, the matter has been dealt with by this Court in the case of State through Advocate-General Sindh v. Bashir and others PLD 1997 SC 408, wherein it is observed that a Police Officer is not prohibited under the law to be complainant if he is a witness to the commission of an offence and also to be an Investigating Officer, so long as it does not in any way prejudice the accused person. Though the 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 appellant.
8. I have examined the prosecution evidence and found that the recovery and arrest of the appellant and the co-accused 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 contentions of the learned counsel for the appellant that the Kalashnikov and other properties have been foisted upon the appellant and co-accused, I, being a member of Division Bench of this Court, have already dismissed Special Criminal Jail Appeal No,25 of 2009 by observing that the prosecution has succeeded to prove its case against the appellant and his co-accused.
9. The prosecution has proved its case against the appellant beyond any shadow of reasonable doubt. I have not found any discrepancy or material contradiction in the prosecution evidence. The arrest of the appellant and seizure of wagon having Army/Rangers number plate, 25 mounds of_ charas, two Kalashnikovs and Army uniforms, which the appellant and the co-accused were wearing at the time of arrest and recovery in the odd hours of night, all the above circumstances proved the prosecution case against the appellant. The appellant has not proved any animosity of the complainant as that the appellant belongs to Mardan, Khyber Pakhtoon Khawa Province. The appellant in his statement under section 342, Cr.P.C. Has also not produced any evidence to discard the prosecution evidence.
10. For all the foregoing reasons, I see no merits in the instant appeal, which was dismissed by me by my short order dated 18th November, 2011 and these are the reasons for the same.