SHAHID ANWAR BAJWA, J.---Appellant was tried for an offence punishable under section 9(c) of the Control of Narcotic Substances Act, 1997 and vide judgment dated 23-12-2010 he was convicted and sentenced to undergo imprisonment for life and to pay fine of Rs,10,00,000, and in case of default in payment of fine to undergo further imprisonment for 6 months. Benefit of section 382-B, Cr.P.C. Was also allowed.
2. Brief facts, as alleged in the F.I.R., are that on 18-11-2009 a police party led by Mohammad Ayoob Buriro, complainant and P.W.1 went to National Highway for checking vehicles. During checking they saw a bus coming from Punjab side, it was intercepted and stopped. Excise party found driver (present appellant) in a confused state. He was alighted. From his personal search official recovered some money, original driving licence and identity card. It is stated in the FIR.. That the present appellant disclosed that cleaner and second driver had fled away. On search of secret cavities on roof of the bus Excise officials found 8 bags wrapped in brown plastic and 27 in brown and blue plastic, in all 35 bags containing slabs of charas of 1 Kg. Each. From each piece 100 grams were separated and sealed separately for chemical examination. Thereafter challan was filed. At the trial P.W.1 was Muhammad Ayoob, complainant and I.O. And P.W.2 was a Mushir. Thereafter statement under section 342, Cr.P.C. Was recorded. The appellant also stated that he would produce two persons as defence witnesses.. Consequently, D.W.1 Amir Khan appeared as witness.
Thereafter vide impugned judgment appellant was convicted and sentenced as above. Hence this appeal.
3. Learned counsel for the appellant submitted that in the F.I.R. It is alleged that appellant was driver of bus in question. He submitted that no evidence has been led to prove that appellant was in possession of narcotic substance and learned counsel in this regard relied upon Warner v.
Metropolitan Police Commissioner ([1969] 2 A.C. 256), Muhammad Noor and others v. The State (2010 SCMR 927). Learned counsel submitted that complainant also acted both as I.O. And the P.W.1 and he submitted that this could not be done. He relied upon Nazeer Ahmed v. The State (PLD 2009 Karachi 191), State through Advocate-General, Sindh v. Bashir and others (PLD 1997 SC 408) and Akhtar Hussain Shah v. The State (1999 PCr.LJ 225). Learned counsel submitted that by this appellant has been prejudiced in his defence. Learned counsel submitted that appellant was not bus driver but was truck driver. Learned counsel submitted that the Mashirnama was signed by four witnesses but only one person has been produced as witness and three have not been produced as witnesses. Learned counsel relied upon Naqeebullah and another v. The State (2002 MLD 253) and Mazhar Hussain Naqvi v. Dr. Zafar H. Zaidi, Vice-Chancellor, Karachi University, Karachi (PLD 2001 Karachi 269). Learned counsel further submitted that the witness was subordinate of complainant and, therefore, his evidence could not be relied upon. Learned counsel next submitted that ownership of vehicle has not been established and driving licence, as alleged, has not been recovered from appellant. Learned counsel relied upon Qaisarullah and others v. The State (2009 SCMR 579).
4. Learned Assistant Prosecutor-General Sindh supported impugned judgment and submitted that there is no enmity whatsoever between the complainant and present appellant so as to falsely implicate the appellant. He submitted that a huge quantity of narcotic substance has been recovered. He relied upon Gul Badshah v. The State (2011 SCMR 984) and Ghulam Qadir v. The State (PLD 2006 SC 61).
5. We have heard submissions of learned counsel and perused the record as well as case cited at the bar.
6. In Warner's case (supra) learned counsel referred to the following observations of the House of Lords:-- "Contrast Regulation 20 of the Dangerous Drugs (No,2) Regulations, 1964 (made pursuant to the Dangerous Drugs Acts, 1951 and 1964), where there is a definition of possession that indicates the difficulties involedd. In the absence of any definition when the word "possession" is used at common law or in a statute it might bear one of three meanings on the authorities; (a) physical possession, which is equivalent to custody or detention; (b) constructive possession, which may be equivalent to the power to possess; or (c) legal possession, which is not the same as lawful possession, but is the possession from which legal consequences flow.
' Legal possession requires an animus. The animus is the intention to possess the object."
' Rex v. McNamee (1832) 1 Mood. C. C. 368 illustrates clearly the distinction between the master's possession and the drover's custody of the cattle. To put the servant into possession it does not suffice to give him bare custody of the goods. Knowledge and intention are vital factors in determining the difference between custody and possession."
7. Learned counsel also relied upon Muhammad Noor's case (supra). Facts of this case were that a vehicle was intercepted by Excise official. Muhammad Noor was sitting on driver's seat and other persons disclosed their names including one Noor Muhammad. On the information supplied by the driver and one passenger (not Noor Muhammad) narcotic substance was recovered. Supreme Court observed as under:-- "It is pointed out that in most of the cases it will be very difficult for the prosecution to prove that the accused was knowingly in possession of narcotic drugs; therefore, the Legislature has enacted a provision in the shape of section 29 in the Act to shift the burden upon the accused to disprove the possession once the prosecution proves that the accused was in possession of narcotic drug.
Thus, the prosecution first has to discharge the duties of proving the allegation, once it is proved then the accused is presumed to be guilty of the offence unless he disproves the allegation and charge. The said section reads as under:--
(29) Presumption from possession of illicit articles.--- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of
(a) Any narcotic drug psychotropic substance or controlled substance;
(b) Any cannabis, coca or opium poppy plant growing on any land which he has cultivated;
(c) Any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or
(d) Any material which have undergone any process towards the production, or manufacture of narcotic drug, psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance or controlled substance has been produced or manufactured, for the possession of which he fails to account satisfactorily.
' The above section expressly cast a duty upon the Court to presume in a trial under the Act that the accused has committed the offence under the Act unless contrary is proved. If the case is of possession of narcotic drugs then first prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused then the Court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such drugs.
Therefore, it is necessary for the prosecution to establish that the accused has some direct relationship with the narcotic drugs or has otherwise dealt with it. If the prosecution proves the detention of the article or physical custody of it then the burden of proving that the accused was not knowingly in possession of the article is upon him. The practical difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made the Legislature think that if the onus is placed on the prosecution the object of the Act would be frustrated. It does not mean that the word "Possess" appearing in the section 6 of the Act does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word "possess" connotes in the context of section 6 possession with knowledge. The Legislature could not have intended to make mere physical custody without knowledge of an offence, therefore, the possession must be conscious possession. Nevertheless it is different thing to say that the prosecution should prove that the accused was knowingly in possession. It seems to us that by virtue of section 29, the prosecution has only to show by evidence that the accused has dealt with the narcotic substance or has physical' custody of it or directly concerned with it, unless the accused proves by preponderance of probability that he did not knowingly or consciously possess the article. Without such proof the accused will be held guilty by virtue of section 29, Act, 1997.
Reliance is placed on the cases of Inder Sain v. State of Punjab AIR 1973 SC 2309."
8. Thereafter Supreme Court distinguished rule in respect of driver and passenger of the vehicle and it observed as under:-- "10. As regards the remaining appellants, namely Noor Muhammad, Bismillah and Abdul Sattar, the allegation against them is that they were sitting in the vehicle, therefore, their case is distinguishable from the case of the appellants Muhammad Noor and Muhammad Ramzan.
Hence in such type of cases the prosecution is required to produce evidence to show that the said persons were in joint possession and control of the vehicle or that they had any concern or dealt with property in any manner, particularly, -in the case when the narcotic substance is concealed in secret cavities or digi or hidden from all other persons. If there is no evidence led by the prosecution to indicate that such persons knew that Charas or narcotic substance was concealed in secret cavities or had knowledge of the said place so as to attract the provisions of Article 122 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as 'the Order'). Nevertheless, if the property was lying open within the view of said persons or they knew the placement of property then the situation would be quite different. In such a situation, they are required to explain their position in terms of Article 122 of the Order, without such explanation their involvement in the case would be proved."
9. At this stage reference may also be made to the case of Gul Badshah (supra) relied upon by learned A.P.G. Gul Badshah was driver of a vehicle from which narcotic substance concealed in secret cavities was recovered. Supreme Court observed as under:- "2. Though counsel for the appellant has argued the case on merits as well as we have also to an extent examined the record, but do not find that the judgments recorded by the two courts below against the appellant, holding him guilty of the offence are infirm for any legal or factual reasons.
However in view of the fact that the illicit substance was found concealed in the secret cavities thus ruled out that the appellant was not aware in this regard, thus while considering it to be a mitigating circumstance and keeping in view the ratio of law laid down as Sahibzada and another v. The State (1991 SCMR 895), Nur Hussain v. The State (1993 SCMR 1608) and Zahoor Ahmed Awan v. The State (1997 SCMR 543), we by maintaining the conviction of the appellant are inclined to reduce his sentence from death to life imprisonment, but without giving him the benefit of section 382-B, Cr. P. C. Besides the sentence of fine and the imprisonment in default thereto, is also maintained. This appeal is decided in terms of the above."
10. In Ghulam Qadir's case (supra) which was also case of a driver and the Supreme Court observed as under:-- "6. Keeping in view the pronouncement made in the reported judgments of this Court we are of the opinion that the driver cannot be absolved from the responsibility if the contraband items are being transported openly on the roof of the vehicle, being driven by him."
11. In the present case, appellant was driver who was driving bus in question and, therefore, respectfully following judgments of Supreme Court in the case of Gul Badshah and Ghulam Qadir (supra) driver is held to be presumed to be in possession of narcotic substance hidden in secret cavities of the vehicle.
12. Next contention of learned counsel for appellant was that P.W.1 Muhammad Ayoob Buriro acted as prosecutor as well as I.O. At the same time and this could not be done under the principle of natural justice. Learned counsel relied upon Nazeer Ahmed's case (supra). He also relied upon State v. Bashir's case (supra) and to the following observations from judgment authored by the then Mr. Justice Ajmal Mian:- "Mr. M.M. Aqil, learned counsel for the respondents, had urged as under:--
(i) That since Shameem Ahmed case was the complainant in the case as well as the Investigation Officer, the trial vitiated;
(ii) - - - -
(iii) ----
8. Adverting to the above first submission of Mr. M.M. Aqil that since Shamim Ahmed was the complainant in the case as well as ,the Investigating Officer, the trial vitiated, it may be observed that in support of his above submission he has referred to the case of Aksar Khan v. The State (1995 MLD 1237), in which a learned Single Judge of the Peshawar High Court, while dealing with an appeal of a convict under section 13 of the Explosive Substances Act, 1908, inter alia held that a Police Inspector could not legally assume dual functions as a complainant and also as an Inspector as it had rendered the trial as sheer mockery."
13. Learned counsel for the appellant also relied upon Akhtar Hussain Shah's case (supra). This case is relating to decision in a bail application and, therefore, is not at all relevant for deciding this appeal. In State v. Bashir's case (supra) learned counsel for appellant read only the above quoted part of the judgment and appears to have overlooked the following observation which immediately follow:-- "We are unable to subscribe to the above broad legal proposition. 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 Investigating Officer so long as it does not, in any way, prejudice the accused person. The Court will have to appraise the evidence produced by the prosecution as a whole and will have to form the opinion after evaluating the same. In the case in hand, since Shameem Ahmed was heading the C.I.A. Party involved and arrested the accused persons and made recoveries of the arms and ammunition, he could-have sent the complaint to the Police Station New Fojdari, Shikarpur. The question, as to whether he could investigate as a C.I.A. Officer, is a different issue, had he been covered by the definition of the Station House Officer employed in section 156(1) of the Cr.P.C. Or had he been authorized by the competent Authority, there would not have been any legal infirmity because of the factum that he investigated the case." (Underlining supplied).
14. A separate note written by the then Mr. Justice Nasir Aslam Zahid which is in the following words may also be referred here:- "NASIR ASLAM ZAHID, J. ---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 the case as well as the Investigating Officer, the trial vitiated. In support of the proposition, reliance had been placed on the case of Aksar Khan v. The State 1995 MLD 1237 in which a 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.
15. Reading of both of the above paras of the judgment indicates that Supreme Court has categorically held that there is no legal prohibition for a police to be a 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.
16. In the present case it is a case under the Control of Narcotic Substances Act and only substantial thing done by the I.O. Was to send sample to the laboratory and then produce report of the laboratory. Counsel had extensively cross-examined the complainant. Therefore, it cannot be said that prejudice caused, in any way, in conducting evidence by I.O. And complainant being the same. No prejudice has been shown on record to have been caused to the present appellant became of such position.
17. Learned counsel submitted that present appellant was not bus driver but was truck driver. He submitted that appellant produced D.W.1 and said D.W.1 stated that he along with appellant left truck from Quetta for Khashmore and when present appellant was driving truck it was stopped and present appellant was arrested. However, in cross-examination he admitted that he had no proof regarding leaving of truck from Quetta. He did not even mention number of truck; not even mentioned name of truck owner; not name of person to whom goods were to be delivered and then as to what happened to the truck. On the other hand, complainant in his evidence has clearly stated that from the present appellant driving licence was recovered and present appellant was got down from the bus which he was driving. Number of the bus is also stated in the F.I.R. Along with other relevant descriptions. It is stated that there was a secret cavity in the bus. No question regarding driving licence was asked and it was not even suggested that there was no secret cavity in the bus.
18. Next contention of learned counsel for appellant was that Mashirnama was signed by four persons and only one witness has been produced. Learned counsel relied upon Naqeebullah's case (supra). Facts in that case were that one mashir did not support prosecution case and was declared hostile. He was cross-examined but no fruitful thing came out of it. Second mashir being Excise constable stated that he was at police station where he saw bag in question for the first time. Witness was not shown the case property during examination. Witness was recalled after 4 months and re-examined and was formally shown property. It was also noticed by the Court that in many cases the same witness appeared as mashir and in that context since other mashir was not produced, presumption could be drawn that if they had come they would not have supported prosecution case. Second case relied upon by learned counsel for the appellant was Akhtar Hussain Shah's case (supra). The Court noticed that material contradiction existed as to who prepared mashirnama. Complainant. Stated that it was prepared by Inspector Razi Khan on dictation of complainant. Mashir stated that it was prepared by complainant in his own handwriting and it was in this context it was observed that fact that other mashir was not examined created doubt. Third case relied upon by learned counsel is of Nazeer Ahmed (supra) to which we have already referred.
19. There are four mashirs in the Mashirnama. It did not mean that if all four were not produced the evidence of mashir produced along with complainant should have been discarded and should not have been relied upon. Case-law referred by the learned counsel for the appellant is distinguishable because there were contradictions between the statement of complainant and statement of mashir produced and then it was observed by the Court that presumption should be drawn. There is no such situation in the present case. Learned counsel has not been able to point out any contradiction between evidence of mashir and evidence of complainant.
20. Contention made by the learned counsel was that ownership of the vehicle has not been established. He relied upon Qaisarullah's case (supra). Qaisarullah was not driver of the vehicle but driver was co-accused and it was observed by the Supreme Court that prosecution had failed to connect the accused with ownership of the car. In the present case appellant was driver of bus in question. Therefore, case is clearly distinguishable.
21. Result of the above discussions is that present appellant has been proved guilty through evidence produced before the trial. Court. Learned counsel for appellant has failed to point out any piece of evidence which could create doubt in the story of prosecution or any illegality in the impugned order. Consequently, this appeal is dismissed. Listed application is disposed of.