' SHAHNAWAZ TARIQ, J.---By this common judgment, we intend to dispose of these four Criminal Appeals arising out of same judgments, one was passed under section 9(c) of Control of Narcotic Substances Act, 1997, and other was passed under section 13(d) of Arms Ordinance, 1965.
2. Criminal Jail Appeal No.D-57 of 2012 was filed by the appellants through Jail Superintendent, assailing the impugned judgment dated 27-8-2012 passed by learned Special Judge/Sessions Judge, (CNS) Ghotki, whereby the appellants were awarded conviction for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, and sentenced them to suffer R.I. For 10 years with fine of 'Rs.50,000 each and in default whereof they were ordered to undergo further S.I for 3 months. They were extended benefit of section 382-B Cr.P.C. Whereas in Criminal Jail Appeal No.D-58 of 2012, the appellants have impugned the judgment dated 27-8-2012 passed by learned Sessions Judge, Ghotki, whereby they were awarded conviction for offence punishable under section 13(d) of Arms Ordinance and sentenced to suffer R.I. For 07 years with fine of Rs.50,000 each and in default whereof they were ordered to undergo S.I for 3 months more. They were also extended benefit of section 382-B Cr.P.C, while Criminal Appeals Nos.D-59 of 2012 and D-60 of 2012 were also filed by the said appellants through their Advocate, challenging their conviction and sentence awarded through the same impugned judgments referred supra.
3. The relevant facts narrated in F.I.R. No.10 of 2011, registered under section 9(c) of C.N.S. Act, 1997, at Police Station Excise Ghotki on behalf of State by complainant Amir Ali Kalwar of Excise, that the accused/appellants were found in possession of ten kilograms of Charas for transporting purpose through Car bearing Registration No.LPT-5977 for which, they were booked and challaned in the said case, while as per F.I.R. No.11 of 2012, registered under section 13(d) of Arms Ordinance at same Police Station, the accused/appellants were alleged to have been found in possession of one DBBL Gun, one MP-5 file, six K.Ks, with magazine, (bearing No. KC-9014, 19541914, KC-6640, 1913 and two without number), two G-3 rifles with magazine, (bearing No. POF-5-74, POF-3-74), three T.T pistols of .30 bore, with magazine, USA made, 14 T.T pistols of .30 bore with magazines, China made, one T.T pistol of .30 bore, with magazine containing six bullets and 4000 bullets of K.Ks, for transporting purpose through the Car bearing Registration No.5977/LPT and apprehended by police party of Excise Police Station Ghotki, headed by Inspector Amir Khan Kalwar, for which they were booked and challaned.
4. Accordingly, separate charges in both the cases were framed against the appellants and their pleas were recorded consequently wherein they denied the charges and claimed to be tried.
5. The prosecution in order to prove its case, examined complainant Inspector Amir Khan Kalwar before the trial Court, who produced attested copies of entries relating to departure and arrival at Police Station Excise Ghotki, mashirnama of arrest and recovery, F.I.R. Of the case, letter for verification of ownership of the said Car, with its report of Chemical Examiner, P.W/mashir E.J Zarara Ahmed and then closed the side.
6. The present appellants in their statements recorded under section 342, Cr.P.C. Denied the allegations of prosecution and have stated that they were apprehended much before their involvement in these cases, by Excise Police, when they were travelling in a passenger coach. It was further stated by appellant Zarbad Khan that an application was moved by his brother namely Abad Khan to DSP Ghotki in respect of his illegal detention, and he has examined Naib Reader to DSP, Ghotki as defence witness. The accused/appellants have not examined themselves on oath to disprove the allegations of the prosecution.
7. The learned trial Court after hearing the arguments of the parties, convicted and sentenced the appellants in above mentioned both cases vide impugned judgments referred supra.
8. The learned counsel for appellants has contended that the appellants are innocent and have falsely been involved in the alleged crimes. He further contended that though the complainant received spy information well in time regarding the alleged narcotics as well as contraband articles were purportedly recovered from the Car in question, but even then no private person was associated as mashir. He also argued that co-mashir Noor Hassan so also AETO who received spy information were not examined by the prosecution. The appellants have no connection with the car whereas the owner of the Car in question namely Farooque was not challaned in the case. He has further contended that there is no report that whether the weapons were in working condition or not. The complainant has also acted as the I.O. Which is purely illegal. He also questioned the chemical report by saying that separated samples were not in the safe custody as according to statement of P.W.1, the samples were sent through Waheed Goraya Korai, but as per the report of FSL, the samples were sent through EC Imtiaz Hussain and they both were not examined by the prosecution. Learned Counsel also contended that there are material contradictions in the prosecution story, therefore, the defence plea of the appellant Zarbad Khan regarding submission of application by his brother to the DSP Ghotki for the illegal detention of the appellant and production of tickets of bus is more trustworthy. He lastly prayed for setting aside the convictions and acquittal of the appellants. In support of his contention, learned counsel for the appellants has relied upon the cases reported as Khursheed Khan v. The State (2012 PCr.LJ 1151), Qaisarullah and others v. The State (2009 SCM R 579), Mir Muhammad v. The State (2008 M LD 1333), Agha Qais v. The State (2009 PCr.LJ 1334), Sartaj Khan v. The State (2001 PCr.LJ 977), Mukhtar Ahmed alias Muhammad Mukhtar v. The State (1999 PCr.LJ 222) and Sajid and another v. The State (2011 YLR 1245).
9. At the first instance, we would like to discuss the above case-law relied upon by the counsel for appellants.
10. In the case of Khursheed Khan v. The State (supra), it has been held that contentions of accused that he had a monetary dispute with one of the persons who was present in the vehicle with him and was prey to the ill design of the said person, against whom a narcotic case was pending and with whom Anti-Narcotic Force staff had joined hands. Two prosecution witnesses had admitted in their statements that no recovery was made from the personal possession of the accused. Driver of the vehicle from which narcotics were received, was let free along with the vehicle in question.
11. In case of Qaisarullah and others v. The State .(supra), it has been held that none of the prosecution witnesses had any personal grudge or enmity against the accused so as to involve him in a false case.
12. In case of Mir Muhammad v. The State (supra), it has been held that accused was allegedly arrested from a room of hotel where he was statedly packing 24 kilograms of charas keeping the door of room open. High Court declined to believe that accused was packing Charas in a hotel room, which was a public placed by keeping the door open. - 13. In case of Agha Qais v. The State (supra), it has been held that Investigating Officer is an important witness also for the defence and in case the head of the police party also acts as an Investigating Officer, he may not be able to discharge his duties as required under the Police Rules.
Unless the recovered narcotics are produced in the Court, it cannot be found that accused was carrying them on his person and the same were recovered from him.
14. In case of Sartaj Khan v. The State (supra), it has been held that assertion of accused that he possessed a valid license of K.K. Rifle and a permit to carry the same for his self-protection had been verified from the concerned Ministry and it was confirmed that he was the genuine licence holder of the said rifle recovered from him. Prosecution, in the circumstances, was duty bound to rebut such fact, but it failed to do SO.
15. In case of Mukhtar Ahmed alias Muhammad Mukhtar v. The State (supra), it has been held that alleged recovery of pistol was made during broad-daytime at about 4-00 p.m. From house situated in a colony which was a thickly populated area but police neither picked any private person to witness alleged recovery from inmate or occupant of house, from where pistol was alleged to be recovered. Mashirs of alleged recovery were policemen and no reasons were given for not procuring any private persons when recovery was made in a residential area where respectables of locality were supposed to be present who ought to have been associated with such recovery. Recovery of crime weapon/pistol, in circumstances, was made in violation of mandatory provisions of section 103, Cr.P.C.
16. In case of Sajid Khan and another v. The State (supra), it has been held that witnesses not only made improvements but also contradicted each other on material points. Contradictions regarding recovery and samples of narcotic substance fatally dented prosecution case. No evidence was available to establish the link of the accused with the car allegedly carrying the contraband was produced.
17. The circumstances narrated in the above cited case-law are quite different and distinguishable from the peculiar facts and circumstances of instant case, hence these judgments are not helpful for the appellants.
18. Conversely, learned A.P.G. For the State, has vehemently opposed these appeals on the pretext that as per the report produced by the Chemical Examiner the seal of sample was intact, therefore, contradiction in the statements for sending the sample through Waheed or Imtiaz have no legal value. He contended that defence itself is defective for the reason that Abad Khan, the brother appellant Zarbad Khan who moved application to D.S.P. Ghotki, was not examined to corroborate the defence plea. He further contended that neither the D.S.P. Ghotki nor any other authorized officer was examined defence, but only the most lower graded official Naib Reader to the office of D.S.P Ghotki was examined which was purely manipulation and planning of the appellants in order to improve their defence plea. The owner of the car namely Rizwan could not be arrested so he is shown as absconder in challan. He lastly contended that there is no likelihood of false implication of appellants in this case' as huge quantity of charas and a large number of contraband weapons were recovered from said Car, therefore, the question of foisting of said property upon the appellants does not arise as the complainant party has no grudge or against the appellant. He, therefore, prayed for maintaining the impugned judgments and dismissal of appeals of the appellants.
19. We have considered the arguments so advanced by learned counsel for appellants and learned A.P.-G. For the State in this behalf, perused the record made available before us and examined the case law cited by them meticulously with their assistance.
20. Now coming to the question of non-association of the private mashir by the complainant at the time of alleged recovery, there is no ambiguity that section 25 of C.N.S. Act has excluded the applicability of section 103 Cr.P.C. In narcotics cases, therefore, non-association of private mashirs at the time of recovery of narcotics would neither cause any dent in prosecution case nor vitiate the conviction. To strengthen the conclusion, the provisions of section 25 of C.N.S. Act are reproduced hereunder:-- "S.25. Mode of making searches and arrest.---The provision of Code of Criminal Procedure,1898, except those of section 103, shall mutatis mutandis, apply to all searches and arrests insofar as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections."
20. In the case of Zafar v. The State (2008 SCM R 1254), it has been held that police employees are competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are police employees. It has been further held that applicability of section 103, Cr.P.C., in narcotic cases has been excluded. Non-inclusion of any private witness is not a serious defect to vitiate conviction. Appeal as dismissed.
21. In the case of Mst. Rashida Bibi v. The State (2010 PCr.LJ 900), it has been held that application of section 103, Cr.P.C, having been excluded by section 25 of the Control of Narcotic Substances Act, 1997, objection about non-association of any private witness in the recovery proceedings, had no substance. Complainant police officer was a witness to the recovery of "Charas" weighing six kilogram:; from the accused. Report of Chemical Examiner was in positive. Conviction and sentence of accused were maintained in circumstances.
22. From the above cited case-law as well as the provisions of section 25 C.N.S. Act, it is crystal clear that the non-association of the private mashir for the recovery of narcotics would not defeat the case of the prosecution by referring the provisions of section 103, Cr.P.C., particularly in present case, when the alleged recovery of narcotics was made at 11-30 p.m. At highway, therefore, the process of recovery of narcotics could not be discarded on the above account.
23. The next question to be determined is whether under criminal administration of justice the complainant can act as Investigating Officer. In this context, the Superior Courts in plethora of the cases, have held that the Recovery Officer could act as Investigating Officer of the same case.
24. In the case of Mst. Rashida Bibi v. The State (supra) it has been further held that police officer performing dual duty of the complainant as well as of an Investigation Officer is not prohibited 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 manner prejudice the accused. Court will have to form its opinion after appraising and evaluating the entire prosecution evidence. It has been further held that police officer could legally act as a complainant as well as an Investigating Officer, unless the accused was prejudiced by such action. No such objection had been raised during the trial, nor the same had been put to the relevant police officer even as a suggestion in his cross-examination.
Conviction and sentence of accused were maintained in circumstances.
25. In this regard reliance is placed on the case of Zafar v. The State (supra), wherein it has been further held that police officer was not prohibited under the law to be a complainant, if he was a witness of an offence, such officer could also be an Investigating Officer, so long as it did not prejudice accused person. Though Investigating Officer and other prosecution witnesses were employees of Anti-Narcotic Force they had no animosity or rancor against accused to plant such a huge quantity of narcotic material upon him.
26. In the case of Gul Badshah v. The State (2009 M LD 1230), it has been held that Police and Excise Officials were as good witnesses as others, who had nomotive, or enmity with the accused to falsely implicate him in the crime. Investigating officer could be a complainant as well as a witness at the same time, without any adverse effect on the prosecution case.
27. Consequently, we are of the opinion that there is no legal embargo that complainant cannot act as Investigating Officer to conduct the investigations of the same case and such act cannot be termed as illegal. Moreover, Police and Excise Officials are as good witnesses as others and their testimonies are also trust worthy, therefore, Investigating Officer could be the complainant as well as witness in criminal case, until having any ulterior motive.
28. The next contention agitating the innocence of the appellants on the strength of defence plea that on 17-10-2011, the appellants and one Abad khan brother of appellant Zarbad Khan, were travelling in a bus from Karachi to their native place, when said bus was stopped for having their meal at Jari wah hotel at highway, the Excise Police apprehended the appellants and taken away from the spot to Ghotki. Allegedly, said Abad Khan moved an application to D.S.P. Ghotki regarding the illegal apprehension of appellants. During trial the P.C. Qaimudin being Naib Reader to D.S.P.
Ghotki was examined as defence witness who saw the photocopy of said application which was already produced on record as Exh. 13/B. We have also tested the defence plea profoundly but the counsel for the appellants has failed to furnished any explanation that after apprehension of the appellants by the Excise Police, said Abad Khan instead of approaching Excise Police why had moved application to the D.S.P. Ghotki and even after moving said application why said Abad Khan had not followed said application further by approaching the high officials or any Competent Court of law for reinvestigation to surface the true facts and unfold the factum of illegal detention of the appellants.
29. Even said Abad Khan himself had not appeared before the trial Court to step in witness box as defence witness and to corroborate the contents of his own application. The appellants have also produced photocopy of a bus ticket, but it is also important to mention that neither the booking clerk of the company nor driver of the said bus, were examined before the trial Court to prove that appellants were travelling in said bus. Even the owner of the Jari wah hotel was also not produced as a defence witness to corroborate the plea of arrest of the appellants by the Excise Police while they were having their meal at said hotel. The counsel for the appellants has also not furnished any plausible explanation that why said Abad Khan was not apprehended by the Excise Police while allegedly he was also available along with the appellants at the relevant time. Consequently; the defence plea outstretched by the appellants is not inspiring confidence and in this context we are in agreement with the learned APG that appellants have manipulated the said application only to misguide the court with sole purpose to save their skin from the conviction.
30. As regards to the question raised by the appellants regarding non-examination of co-mashir is concerned, it is worthwhile to mention that it has been, repeatedly decided by the Superior Courts that it is an exclusive domain of the prosecution to examine any witness or otherwise and non- examination of any witness would not vitiate the merits of the prosecution case.
29A. In case of Mst. Gulshan Bibi v. The State (2009 SCM R 819), it has been held that huge quantity of "Charas" weighing 15 kilograms had been recovered from the possession of accused, which had been satisfactorily proved. Mere fact that one of the witnesses to the recovery memo was not produced, was not fatal to prosecution case. Plea of acting as "carrier" had not been taken at the trial, nor spelt out from the material on record. Plea of substitution was also not substantiated.
Leave to appeal was refused to accused in circumstances.
30. The prime question regarding implication of the appellants falsely by the Excise Police by foisting the alleged recovery, the appellants have failed to allege any animosity against the complainant and witnesses to cause any dent in the prosecution story.
31. In case of Faiz Muhammad v. The State (2009 SCMR 403), it has been held that allegation of smuggling/transportation of huge quantity of narcotics, arms and ammunitions, High Court while dismissing the appeal filed by the petitioners dealt with the contentions of counsel comprehensively, dilating upon each and every aspect of the case. Evidence which had been brought on record had rightly been appreciated by the trial Court, determination whereof had been upheld by the High Court, assigning valid and cogent reasons. No illegality, irregularity or misappreciation of evidence could be pointed out persuading to grant leave to appeal. Petition for leave to appeal was dismissed.
32. In the case of Gul Badshah v. The State (2009 M LD 1230), it has been further held that Narcotics comprising 171 kilograms of "Charas", 70 kilograms of opium and 3 kilograms of heroin, which stood established by his statement made under section 342, Cr.P.C., and by failure of the defence to cross-examine the recovery witness. All the tests conducted by the Chemical Examiner of the samples of recovered narcotics were positive.
33. Prosecution witnesses were consistent and unanimous on all material aspects of the case.
Conviction and sentence of death of accused were affirmed in circumstances.
34. In the case of Haji Muhammad Iqbal and 2 others v. Muhammad Saeed and 4 others (2011 PCr.LJ 1086), it has been held that accused challenged proceedings against them regarding possession of narcotic drugs etc., through constitutional petition contending that in the presence of Anti-Narcotic Force, local police had no authority to register the F.I.R. And investigate the case.
Accused having been alleged involved in a case registered under sections 6 and 9(c) of the Control of Narcotic Substances Act, 1997 which provided maximum penalty of death or imprisonment of life, innocence or guilt of the accused could not be determined without conclusion of the trial. It was further held that exclusion of role of local police from investigating narcotic case would negate the provisions of section 21 of the Control of Narcotic Substances Act, 1997.
Assumption of jurisdiction without lawful authority could be quashed in constitutional jurisdiction.
Section 537, Cr.P.C. Provided that no finding, sentence, order passed by a Court of competent jurisdiction would be reversed or altered on account of any error, omission or irregularity in the complaint, report by Police Officer under section 173, Cr.P.C. Summons, warrant, charge, proclamation order, judgment or other proceedings before or during trial or any inquiry or other proceeding under the Criminal Procedure Code. Police had not violated any law by arresting the accused. Petition was dismissed accordingly.
34. In case of Afsar Khan v. The State, 2008 SCM R 1219, it was observed as under:-- "4 No animosity of the prosecution was shown to exist for involving the petitioner falsely in a serious case of a narcotics. Even the recovery of a huge quantity of Charas was not denied by him. The High Court had given sound, reasons for distinguishing the case of the co-accused Mst. Zohra for acquitting her of the charge. The report of the Chemical Examiner was also positive. The High Court as well as the trial Court have properly appraised the evidence in coming to a definite conclusion of the guilt of the petitioner to which no exception can be taken. This is not a fit case for grant of leave to appeal".
35. In Shah Muhammad v. The State, 2012 SCM R 1276, august Supreme Court has been pleased to observe as follows:-- "8. Regarding delay in dispatch of samples to the Forensic Laboratory for examination, suffice it to say that we have to realize the ground realities of less means of communication and manpower with the police and over and above the absence of any evidence to presume that because of delay, dispatch samples were tempered with, therefore, this argument would not be available to the learned counsel for the appellant."
36. In Muhammad Sadiq's case reported in 2005 SCM R 1689, allegations were denied by the accused and the august Supreme Court was pleased to observe as follows:-- "3 It was urged by the learned counsel for the petitioner that the petitioner, who was a School teacher, had been falsely implicated in the case by the police. Unfortunately, nothing was brought on record to substantiate the false implication of the petitioner by the police. No illegality or infirmity in the impugned judgment has been pointed out by the learned counsel warranting interference by this Court, therefore, this petition being devoid of merit is dismissed and leave to appeal declined accordingly."
37. In the case of Kashif Amir v. State reported as PLD 2010 Supreme Court 1052, the Honourable Supreme Court has observed as under:--
3. It is well-settled principle that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics, having knowledge of the same as no condition or qualification has been made in section 9(b) of C.N.S.A. That the possession should be an exclusive one and can be jointed one with two or more persons. Further, when a Person is driving the vehicle, he is Incharge of the same and it would be under his control and possession, hence, whatever articles lying in it would be under his control and possession. Reference in this behalf may be made to the case of Muhammad Noor v. The State (2010 SCM R 927). Similarly, in the case of Nadir Khan v.
State (1988 SCM R 1899) this court has observed that knowledge and awareness would be attributed to the Incharge of the vehicle. Another aspect of the case is that once the prosecution has prima facie established its case then under section 29 of the C.N.S.A. Burden shifts upon the accused to prove contrary to the plea of the prosecution. Reliance in this behalf may be made to the case of Ismaeel v. The State (2010 SCM R 27) wherein this court, while relying upon the cases of Muhammad Arshad v. The State (2007 SCM R 1378) and Mst. Taj Bibi v. The State (2007 SCM R 1591) has held that the Chemical Examiner's reports regarding Charas and Opium were sufficient to prove that the substance recovered from the accused was Charas which can be used to cause intoxication; the prosecution had discharge its initial onus while proving that substance was recovered from him whereas the petitioner had failed to discharge its burden in terms of section 29(d) of C.N.S.A. In this behalf reference can also be made to the case of Ikram Hussain v. The State (2005 SCM R 1487) wherein it has been held that in terms of section 29(d) of the Control of Narcotic Substances Act, 1997 unless otherwise proved, the presumption would be that the person who is found in possession of the narcotics has committed an offence."
38. Accordingly, we are not inclined to give weight to such assertion primarily for the reason that the appellants are to be presumed to be having knowledge of the trafficking of the material, which has been proved to have been recovered from the car in question, wherein the appellants were available and subject recovery was made from the car at 11.30 p.m at highway and none of the appellants has been able to justify that he was not in knowledge of the material.
39. Resultantly, we are satisfied that defence did not produce any such evidence to establish animosity qua prosecution witnesses. All prosecution witnesses deposed in line to support prosecution case. Prosecution had been successful to bring home the guilt of accused to the hilt by placing ocular accused it recovery of narcotic material and Chemical Examiner report, therefore, in absence of such motive, we do not find any reason to discard the testimony of the official witnesses. Counsel for the appellants though argued at length but could not point out any misreading or non-appraisal of evidence by the trial Court. Accused failed to point out any error of law in impugned judgments and the same were exceptionable.
40. For the above particular reasons the impugned judgments do not call for any interference and are maintained, conesquently, instant Jail Appeals Nos.D-57 and D-58 of 2012, and Criminal Appeal No.D-59 and D-60 of 2012, being devoid of merits stand dismissed.