' MRS. IRSHAD QAISER, J.---Appellant Haftay Khan was tried in case registered vide F.I.R. No, 193 dated 14-7-2009 under section 9(c), C.N.S.A. 1997, P.S. Mattani, Peshawar on the allegation that on interception and search of the truck bearing registration No,778 Quetta Balochistan being driven by him, charas weighing 20 kg was recovered. The learned Court vide its judgment dated 10-12-2010 convicted him under section 9(c), C.N.S.A., 1997 and sentenced him to life imprisonment with fine of Rs,200,000 or in default to suffer one year's S.I Benefit of section. 382-B, Cr.P.C. Was extended.
2. The brief but relevant facts of the case are that on 14-7-2009 the complainant Syed Naseem Hayat along with others was on petrol duty of the area when he received information that a huge quantity of narcotic would be smu ggled from tribal area through a Truck No, 778 Quetta Balochistan. On this information they laid Nakabandi/and at about, 1700 hours they intercepted the Truck No, 778 Quetta Balochistan. On query the driver disclosed his name Haftay Khan while another person sitting with him disclosed his name as Khair Gul. The truck was checked and during the search of the truck 20 packets, weighing one kg each of charas pukhta lying behind the seat of driver were recovered. The accused were arrested on the spot and the present case was registered against them.
3. After completion of investigation challan was submitted in trial Court. During trial the prosecution produced 4 witnesses. While Darwesh D.F.C. Was examined as C.W.1. The accused when examined under section 342, Cr.P.C. Denied the prosecution story and stated that he is innocent and falsely charged however he did not opt to examine himself under section 340(2), Cr.P.C. Or produce defence. On the conclusion of the trial appellant was convicted and sentenced while co-accused was acquitted hence the present appeal.
4. Learned counsel for the appellant argued with vehemence that false case has been registered against him. That no narcotic was recovered for the truck rather it was loaded with furniture and when they reached at the spot the SHO stopped it and demanded Rs,40,000. On his refusal a false case was registered. That the alleged recovery was effected on 14-7-2009 whereas according to FSL report Exh.PZ it was received on 24-7-2009, after the lapse of 10/11 days. His submission was that the delay in sending the sample of charas would not only reflected on dishonest investigation but possibility cannot be ruled out that samples were tampered with. That the samples were taken only from 20 slabs allegedly recovered from him and not from the whole lot consisting of 40 slabs, therefore the report of Chemical Examiner should be taken to the extent of 10 kg and in this way he is entitled to lesser punishment. He further contended that the evidence of the prosecution is inconsistent rather contradictory on the material point; therefore, the benefit of such contradiction be given to accused. That the provision of section 103 of Cr.P.C. Have not been complied with. That prosecution failed to produced the case property i.e, truck in the trial Court for its inspection and exhibition. In rebuttal the learned State counsel supported the judgment of conviction and argued that huge quantity of charas weighing 20 kgs was recovered from the vehicle driven by appellant.
That there is no or enmity between the Police official and the appellant. That both the P.Ws. Were consistent on all the material particulars and their statements are worthy of credence. That he being Incharge of the vehicle and having conscious knowledge of the narcotics was held responsible and was rightly convicted and sentenced according to law.
5. We have carefully examined the entire record and perused the judgment impugned with the eminent assistance of counsel for the parties. After having gone through the entire evidence by keeping the defence version in juxtaposition we have no hesitation in mind to hold that prosecution has proved the factum of recovery on the basis of forthright and convincing evidence. The statement of prosecution witnesses namely Riaz Ahmad, Naseem Hayat and Fazle Malik have been thrashed out in depth who all have supported the prosecution version. Their evidence is consistent on all material particulars worthy of credence and inspired confidence. The recovery witnesses were not shown to be motivated by any or enmity towards the accused. No discrepancy or flaw creating dent in prosecution version could be pointed out. Discrepancies highlighted in the prosecution evidence are minor in nature and could not be considered sufficient to vitiate the trial.
The testimony of these witnesses inspired confidence and has been rightly relied upon by the trial Court. The appellant was apprehended at the spot from truck bearing Registration No, 778 Quetta Baluchistan on whose searching 20 kgs charas was found for which F.I.R. Was got lodged with promptitude. Accused has admitted the date, time and place of the occurrence. He also admitted that at the relevant time he was driving the truck and other co-accused was sitting with him as cleaner. His only defence was that the truck loaded with furniture was stopped by Police official, and SHO demanded Rs: 40,000 from him and on his refusal false case was registered. From the perusal of statement of P.Ws. 3 and 4 it reveals that they were subjected to lengthy and searching cross-examination by the accused but not a single question/suggestion was put on them with regard to the demanding of Rs, 40,000. It is an accepted principle of law that when accused at a criminal trial takes a specific plea, the onus invariably shifts and he is required to produce evidence and prove his innocence or at least, his plea should be supported by the attending circumstances and it should not be unfounded altogether. Though the appellant contended that he is innocent and at the relevant time the truck was loaded with furniture having genuine bullty. But the plea taken by the appellant is without foundation an& has not been satisfactorily proved. Nothing has been brought on record to demonstrate that he was taking furniture on a truck. The owner of the furniture or the shop from where he loaded the furniture has not been produced at the trial to support the plea. No oral or documentary evidence has been produced. In ordinary law when best evidence is not produced in the Court the inference is to be drawn against the party withholding such evidence.
6. The submission of learned counsel for the appellant is that the provision of section 103, Cr.P.C.
Was not complied with as no other respectable persons were associated has no force, firstly for the reason that provision of section 103, Cr.P.C. Has been excluded under the provision of section 25 of C.N.S.A. 1997 and secondly the noncompliance cannot be considered as a strong ground for holding that the trial of the appellant is bad in the eye of law. There is consistent opinion of apex Court that Police officials are competent witnesses and their statement cannot be discarded merely for the reason that they belong to the Police Department. Reference is made to 2001 SCMR 36 and PLD 2004 Pesh 246. Reference may also be made to 2010 SCMR 1962 wherein it is held:- "We are conscious of the fact that no private witness could be produced but it must not lost sight of that reluctance of general public to become witness in such like cases by now has become a judicially recognized fact and there is no way out but to consider the statement of an official witness as no legal bar or restriction whatsoever has been imposed in this regard. We are fortified by the dictum laid down in Hayat Bibi v. Muhammad Khan (1976 SCMR 128), Yaqoob Shah v. The State (PLD 1976 SC 53), Muhammad Hanif v. State (2003 SCMR 1237). It is well-settled by now that Police officials are good witnesses and can be relied upon if their testimony remained unshattered during cross examination as has been held in case of Muhammad Naeem v. State (1992 SCMR 1617), Muhammad v. State (PLD 1981 SC 635). The contention of Mr. Kamran Murtaza, learned Advocate Supreme Court on behalf of petitioner qua violation of provisions as enumerated in section 103, Cr.P.C. Seems to be devoid of merit when examined in the light of provisions as contained in section 25 of the Act which provides exclusion of section 103, Cr.P.C.
7. Regarding delay in dispatch of sample to the FSL for examination, suffice it to say that we have to realize the ground realities of less means of communication and man power with the Police and over and above the absence of any evidence to presume that because of delay, dispatch samples were tampered with; therefore, this argument would not be available to the learned counsel for the appellant because it is proved that through application Exh.P.W.1/5. I.O. Sent 20 sample having a monogram of NH and according to FSL report Exh. PZ they received 20 sealed parcel marked as I to 20 each bearing 3 seals in the marks Of NH. Moreover, when the case property was opened in the Court the sample of monogram NH was also found inside the parcel. Thus it proves that the FSL report is in respect of the samples which were taken from the charas recovered from accused.
8. The other main objection raised by accused is that truck has not been produced in the Court for its exhibition and inspection. C. W.1 Darwesh, gave the explanation of non production of truck and stated that since the truck was not in working condition; therefore, its production in the Court is not possible and it is parked in P.S. For a period of more than one year. His report is Exh.C.W.1/1. He has not been cross-examined by the accused. Though it was the legal duty of the prosecution to produce the truck in the Court being case property, even through chain and it has withheld material piece of evidence but the benefit of this omission cannot be given to accused as he himself admitted that at the relevant time and place he was driving Truck No, 778 Quetta Balochistan and it was intercepted by Police.
9. His last submission was an alternative defence to the quantum of sentence is that samples were not taken from whole lot rather out of 40 slabs these were taken only from 20 slabs of charas weighing 10 kgs. But this contention of appellant has no force because appellant has consistently denied the factum of recovery of narcotics from him whereas there is sufficient ocular account of two witnesses that in their presence and from possession of the appellant 20 kgs of chars were recovered. Both the witnesses have categorically stated that 5 grams each were taken out from each packet and sealed in 20 parcels. Moreover, when the case property was opened before the trial Court it was observed that each packet consisted of 2 slabs and sample was taken from each slab. Above all whether 5 grams sample each was taken from one slab or two slabs in a packet at least one fact is clear that 20 sample weighing 5 grams each were sent to Expert. Each slab if taken to be of 500 rams then the minimum quantity regarding which it is proved that taken sample therefrom were weighing 10 kgs. If this is the case of appellant, even then his case still remains within the scope of section 9(c), C.N.S.A., 1997.
10. We after assessm ent and evaluation of entire evidence on record are satisfied about the involvement of the appellant in the offence. We find that the conclusion drawn and reasons advanced by the learned trial Court show fair evaluation of evidence which is in accordance with the settled principle of criminal justice. We find no illegality or infirmity in the impugned judgment warranting interference of this Court. Thus the appeal being meritless is hereby dismissed and the impugned judgment of conviction is maintained.
11. Before parting with the case we deem it necessary to express our concern on the non- production of truck in the court during trial. It is not the first time to observe that during trial the case property including vehicles etc. Has not been produced for the reason best known to prosecution. Since it is one of the mandatory duty of the prosecution to produce all the case property in the court to prove its case; therefore, the office of this court is directed to send the copies of this judgment to the Director-General, Anti-Narcotics Force, I.G.P and D.G, prosecution so that this judgment may be brought to the notice of all the prosecutors and investigators dealing with the cases under the Control of Narcotic Substances Act, 1997.