' MIRZA VIQAS RAUF, J.---This single judgment shall decide the fate of Criminal Appeal No.344 of 2008 filed by the appellant Haroon Rasheed who has challenged the validity of judgment dated 29.11.2007 to the extent of his conviction and Criminal Appeal No.1848 of 2011 filed by Daraz Khan, appellant who has also challenged the validity of the same judgment to the extent of confiscation of Vehicle No.R-0154-Karachi, claiming himself as bona fide owner of the same. Now we decide these appeals one by one in the following manner.
2. The Criminal Appeal No.34-J of 2008 is directed against the judgment dated 29th of November, 2007, passed by the learned Additional Sessions Judge/Judge Special, Control of Narcotic Substances, 1997, Mianwali, whereby Haroon Rasheed, appellant was tried along with his co- accused and convicted under Section 9 of The Control of Narcotic Substances Act, 1997 in case FIR No.15 dated 25th of January, 2006 registered at Police Station Mochh, Mianwali and sentenced to undergo imprisonment for life along with fine of Rs.10,00,000/- and in default thereof, he was to further undergo 01 year simple imprisonment. Benefit of section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to him. Whereas co-accused namely Zubair Saeed Ullah Khan, Hikmat Ullah and Umar Zubair Khan were acquitted.
3. Precisely the facts necessary, as divulged in the statement of Muhammad Rafiq, S.I/S.H.O. (PW-5) are as under:- "On 24.1.2006 I was posted as S.H.O. P.S. Mochh, Mianwali. On mid night of 24/25-1-2006, I along with Amanullah SI and other officials was on patrol duty on official vehicle at Bannu-Mianwali road. I received spy information that car No.R-0154-Karachi in which 03 persons Haroon Rashid, Hikmatullah and Umar Zubair present in the court had gone to Kammar Mushani to fetch a narcotics and they would return at any moment on that night. On this there was a Nakka on pull Mochh at about 11:00 P.M. On the same night the above said car, came at the Naka, which was signaled to stopped by us but the driver did not stop and accelerated the car and moved it towards Mianwali. I informed on wireless to Tarrikhel patrol post for stopping the above said car who were on patrol duty. We also chased the car. The police officials of Tarn I khel post stopped the car and meanwhile we also reached there. All the 03 accused mentioned above started running after stopping the car towards east and we chased them. Haroon Rashid who was driver of the car now present in the court was apprehended by us while Hikmatullah and Umar Zubair were succeeded in running away. Car was searched and on search 10 packets were recovered under the seat of the driver and 10 packets under the front seat and 09 packets were recovered from the back seat. After weighing it, became 25 kilogram charas and 10 kilo 625 grams Garda charas total 35 k.g 625 grams. Out of all packets 10/10 grams charas was separated and converted into sample parcels 29 in numbers while the remaining recovered was converted into separate sealed parcels and taken into possession vide memo. Ex.PB attested by Amanullah S.I and Faisal, Naveed. Charas is P-1. Car P-2 was also taken into possession vide the same recovery memo. Car P-2 is also present out side the court. I prepared the complaint Ex.PA and sent the same to P.S for registration of case through Amir Abdullah constable."
' On the basis of above stated facts, case FIR No.15 dated 25th of January, 2006 (Exhibit-PA/1) was registered at Police Station Mochh, District Mianwali.
4. After formal investigation, report under section 173 of The Criminal Procedure Code, 1898 was submitted before the learned trial Court wherein the appellant was arrayed as an accused along with co-accused Zubair Saeed Ullah Khan, Hikmatullah and Umar Zubair Khan. All the accused were sent to face the trial. The learned trial Court, seized with the matter, framed the charge against all the accused under sections 9(c) and 15 of The Control of Narcotic Substances Act, 1997 to which they pleaded not guilty and claimed trial.
5. In order to prove the alleged recovery, the prosecution examined six witnesses in toto.
Muhammad Aslam ASI, being the scribe of FIR (Exhibit-PA/1) appeared as PW-1. Mushtaq Ahmed 783-MHC, who was officiating as Moharrar at the relevant time was examined as PW-2. He deposed about the keeping of sealed parcels of charas and charas garda in the Mall Khana and its further transmission to the office of Chemical Examiner, Rawalpindi. Abdul Aziz 18/DFC was produced as PW-3. Amanullah S.I, one of the recovery witness appeared as PW-4. He narrated the events which led to the recovery of charas and charas garda weighing 35 Kg and 625 grams.
Muhammad Rafiq S.I, being the complainant as well as Investigating Officer was examined as PW- 5 and Muhammad Ejaz 1055-C was produced as PW-6. He took the sample parcels to the office of Chemical Examiner on 28th of January, 2006. After recording of evidence of these prosecution witnesses, the learned Deputy District Attorney gave up PWs Ghulam Muhammad 931-DFC, Faisal Hameed and Amir Mushtaq, Inspector, being unnecessary. The report of Chemical Examiner was tendered in evidence as Exhibit-PD and thereafter the prosecution evidence was closed.
6. After completion of prosecution evidence, the statement of appellant/accused along with co- accused were separately recorded under section 342 of The Criminal Procedure Code, 1898. The appellant in his statement pleaded his innocence and denied his involvement in the alleged offence. The appellant, however, neither led any evidence in his defense, nor opted to appear in the witness box in terma of section 340(2) of The Criminal Procedure Code, 1898.
7. After completion of evidence and hearing both the sides, the learned trial Court, after holding the appellant guilty of the offence, convicted him as mentioned in the preceding paragraph No.1 above whereas co-accused namely Zubair Saeed Ullah Khan, Hikmatullah and Umar Zubair Khan were acquitted. The vehicle involved in the offence was also confiscated.
8. Learned counsel for the appellant in criminal appeal No.34-J/2008 submitted that the prosecution has failed to prove its case against the appellant. He added that when on the basis of same set of evidence, co-accused were acquitted then there was no justification for the trial Court to convict the appellant. Learned counsel contended that the prosecution has purposely withheld the material witnesses, especially Amir Mushtaq, Inspector. Learned counsel argued that the complainant (PW-5) acted in dual capacity which itself is sufficient to vitiate the recovery proceedings. Learned counsel contended that the appellant was merely a driver and nothing was recovered from his possession. Learned counsel maintained that the prosecution has failed to prove the conscious knowledge of the appellant. In support of his contentions, learned counsel placed reliance on Gul Noor Ali v. The State (2015 SCMR 279), Akhtar labal v. The State (2015 SCMR 291), Amjad Ali v. The State (2012 SCMR 577) and Asghar Ali v. The State (1996 SCMR 1541).
9. On the other hand, learned counsel for the appellant in Criminal Appeal No.1848/2011 submitted that the appellant was the lawful owner of the vehicle in question and during the trial, the vehicle was handed over to him on Superdari vide order dated 23rd of November, 2006. He added that the vehicle was confiscated without notice to the appellant. Learned counsel maintained that the impugned judgment is not sustainable to this extent. In support of his contentions, he placed reliance on Allah Ditta v. The State (2010 SCMR 1181) and Muhammad Sarwar v. The State (2005 PCr.LJ 1005).
10. Conversely, learned Additional Piosecutor General appearing on behalf of State submitted that the prosecution has led sufficient evidence to prove the recovery against the appellant. He further submitted that all the witnesses corroborated each other on material points and their evidence is convincing and confidence inspiring. Learned Prosecutor also contended that the prosecution has successfully proved its case against the appellant and his conviction was rightly recorded by the learned trial Court. In the last learned Additional Prosecutor General submitted that the vehicle was rightly confiscated as it was used in the offence.
11. We have heard the learned counsel for the appellants as well as the learned Additional Prosecutor General and perused the record.
12. First of all, we would like to take up the issue raised in criminal appeal No. 344/2008 challenging the conviction awarded to the appellant namely Haroon Rasheed. The prosecution case is that the appellant was apprehended at the spot whereas the co-accused namely Zubair Saeed Ullah Khan, Hikmatullah and Umar Zubair Khan were succeeded to decamp.
13. In order to prove the recovery, the prosecution examined as many as six witnesses but out of these witnesses, the evidence of Aman Ullah S.I (PW-4) and Muhammad Rafiq S.I/SHO (PW-5) is of significance importance. While going through the statements of these two material witnesses, we have examined that the case property charas at garda charas was duly exhibited in their evidence as P-1 which was taken into possession vide recovery memo Exhibit-PB. Both of them remained consistent and firm on all the material aspects of the recovery. They have given each and every detail with regard to the recovery proceedings. Both these witnesses were cross-examined at considerable length but nothing could be extracted which can adversely effect the prosecution case. The tenor of cross-examination reflects that the defense has not seriously challenged the recovery of charas and garda charas from the vehicle but main stay of the defense is that the appellant, being the driver, having no conscious knowledge about the concealment of recovered substance in the vehicle and he was made scapegoat in place of actual culprits. Though learned counsel for the appellant argued that there was no conscious knowledge of the appellant about the concealment of charas and garda charas in the vehicle but this contention is negated by the statement of Muhammad Rafiq S.I/SHO (PW-5), who during his cross-examination stated as under:- "I recovered P-1 from the car on the pointation of Haroon Rashid accused."
' The absence of mens rea also does not find support from the manner in which the recovery was effected. It is the case of the prosecution right from the day first that when the vehicle was signaled to stop, the driver accelerated the same towards Mianwali and after a chase, the vehicle was stopped by the Patrolling Police at Tarn I Khel Police Check Post. The prosecution, while examining Aman Ullah ASI (PW-4) and Muhammad Rafiq (PW-5) has successfully discharged the burden of proof. The Control of Narcotic Substances Act, 1997 provides a little bit different mechanism in procedure for establishing the guilt of the accused. In view of section 29 of The Control of Narcotic Substances Act, 1997 if once the prosecution is able to bring on record sufficient material in order to discharge the initial onus of proof then the burden shifts upon the accused to prove otherwise because in terms of said section, a presumption of guilt arises in such an eventuality. The case property was produced before the learned trial Court and there is no serious challenge to the same from the other side. The report of Chemical Examiner Exhibit-PD was also tendered in evidence, which affirms the nature of recovered substance being a narcotic drug, attracting the Penal Provisions contained in section 9 of The Control of Narcotic Substances Act, 1997.
14. The safe custody of the case property as well as transmission of sample parcels to the office of Chemical Examiner is also proved through the statements of Mushtaq Ahmed 783-RHC (PW-2) and Muhammad Ejaz 1055-C (PW-6). Since the appellant has taken a specific plea in his defense, so he was bound to lead cogent and convincing evidence to prove the same but while examining the defense plea, we find that the same is self-contradictory as is evident from the suggestions put to the prosecution witnesses during cross-examination. While cross-examining the prosecution witnesses it was the case of the appellant that the instant case was registered due to enmity of Iqbal Awan SDPO with Lateef Ullah Azad Advocate, who is brother of Zubair Saeedullah Khan co- accused but while recording his statement under section 342 of The Code of Criminal Procedure, 1898 in answer to question No.3,. The appellant stated as under:- 'The Investigation Officer of this case is also the complainant of this case and other PWs are subordinate of the complainant. In fact a white colour car was taken into custody from Bismilah Petroleum within the area of Police Station Daud-Khel by the police. According to the wireless, message was sent by the District Police Officer and the said car was let of. I am a poor taxi Driver having no other source of income. The I.O. Used to take my car on rent and did not pay a single penny to me as a fare and upon my refusal to take the I.O. To his native village without fare prior to this occurrence, the I.O. Involved me falsely in this case and fake recovery has been planted against me. Nothing was recovered from my possession. The PWs deposed against me under the influence of investigating officer only to support the false prosecution story."
' It is evident from the above that the defense plea is a crafted one which is even self-destructive.
No evidence was led by the appellant to prove this fact that he was falsely involved in the instant case.
15. In criminal cases substitution is always a rare phenomenon and foisting a huge quantity weighing 35 Kg and 625 grams is also improbable when there is no animosity of the police with the accused. In our humble view, the prosecution has produced all the material witnesses in order to bring home the guilt of the appellant. Non-examination of Amir Mushtaq, Inspector is not fatal to the prosecution case as the prosecution is not bound to examine each and every witness cited in the calendar with the report under section 173, of The Code of Criminal Procedure, 1898. It is prerogative of the prosecution to examine the witnesses as per its own choice as the evidentiary value of the witnesses is to be determined on the basis of quality and not the quantity. The judgments cited by the learned counsel for the appellant are based on entirely different facts and circumstances. In criminal matters, facts and circumstances always vary from case to case. The appellant, being the driver was in control of the vehicle. The recovery of charas and garda charas was effected from different compartments of the car, including the driving seat, thus from the available easily be gathered that the appellant was fully aware of the presence of charas and garda charas in the car, especially when he failed to rebut the overwhelming evidence led by the prosecution. Reliance in this context can be placed on Ismaeel v. The State (2010 SCMR 27), Kashif Amir V. The State (PLD 2010 Supreme Court 1052) and Ghulam Qadir V. The State (PLD 2006 Supreme Court 61).
16. While adverting to the arguments raised by the learned counsel for the appellant regarding the dual functioning of Muhammad Rafiq (PW-5) as complainant and the Investigating Officer, it is held that there is no bar under the law for a Police Officer to be complainant as well as Investigating Officer at the same time. Even learned counsel for the appellant has failed to point out any such legal provision barring the functioning of complainant as Investigating Officer in a case. We are of the considered view that when no prejudice is caused to the accused then functioning of complainant in his dual capacity is neither illegal nor unlawful. Guidance in this respect can be sought from "STATE through Advocate-General, Sindh v. Basir and others" (PLD 1997 Supreme Court 408) where the Hon'ble Supreme Court of Pakistan has held that:- "8........................ 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 17 same..........
17. Now we take up the arguments of the learned counsel for the appellant that when on the basis of same set of evidence, co-accused were acquitted, the appellant cannot be convicted. This argument is of no force as the acquitted accused were neither arrested at the spot nor their identification was established on the record. Their case was entirely on different footing whereas the appellant, being the driver was arrested at the spot and led to the recovery. Even otherwise principle of "falsus in uno falsus in omni bus" is not strictly applicable in our criminal system of dispensation of justice as in the peculiar circumstances, the grain is to be sifted from the chaff.
Reliance in this regard can be placed on "Muhammad Zubair and another v. The State" (2002 SCMR 1141) and "Criminal Appeal No.249 of 1996 Khawand Bakhsh and others v. The State and others Criminal Appeal No.250 of 1996 The State through Advocate-General, Balochistan, Quetta v. Bangui Khan Criminal Appeal No.302 of 1997 Mrs. Sallalakbar Bugti v. Bangui Khan and another" (PLD 2000 Supreme Court 1).
18. In view of material available on the record, we are of the considered view that the prosecution has successfully proved its case against the appellant without any shadow of doubt by leading cogent and trustworthy evidence. The learned trial Court hits duly appreciated the evidence available on the record and rightly convicted the appellant by way of judgment under challenge.
19. For what has been discussed above, the prosecution has fully proved its case against the appellant Haroon Rasheed and there is even no hint of doubt left with regard to his guilt. We are thus of the considered view that the learned trial Court has committed no illegality while convicting the appellant by way of impugned judgment. The appellant has failed to point out any illegality or material irregularity, requiring interference by this Court in exercise of appellate jurisdiction.
Therefore, we while maintaining the conviction of the appellant Haroon Rahseed recorded by the learned Additional Sessions Judge, Mianwali vide judgment dated 29th of November, 2007 dismiss the instant appeal.
20. We now advert the criminal appeal No.1848 of 2011, the perusal of impugned judgment reveals that the learned trial Court, while confiscating the vehicle did not advert to the mandatory provision of law as contained in sections 32 and 33 of The Control of Narcotic Substances Act, 1997.
Record reflects that during the trial, the vehicle was handed over to the appellant on Superdari vide order dated 23rd of November, 2006 and while passing the order, the learned trial Court observed as under:- "I have come to the view on perusal of the police record, as well as, judl. Record and also keeping in view the copy of the registration book annexed with this application that since the present petitioner is shown as valid ransferee of the disputed vehicle and since he is not one of the co- accused and since it is on the record that the said vehicle was being driven by the driver who has not filed any such application for superdari uptil now as such there is no rival claimant of the said vehicle and keeping in view the law laid down in the rulings relied upon by the learned counsel for the petitioner, I find that there is no legal bar against delivery of the custody of the disputed vehicle on superdari for temporary purpose to the petitioner till the finalization of the trial and the question about confiscation or otherwise of the said vehicle would be considered at the time of decision passed on said trial."
Section 32 of The Control of Narcotic Substances Act, 1997 casts a duty upon the Court that before passing an order for confiscation of a vehicle to determine the fact that as to whether the owner of such vehicle was aware of the fact that offence was being, or was to be, committed by way of such vehicle, whereas section 33 makes it obligatory for the Court to provide an opportunity of hearing to the person who is claiming the right in the said vehicle. The impugned judgment is clearly evident of the fact that none of these mandatory provisions were adhered by the learned trial Court, while passing the order of confiscation of the vehicle in question. We have examined the prosecution evidence on this perspective but we are unable to find even a slightest piece of evidence establishing the factum of knowledge of the appellant with regard to commission of offence. In this view of the matter, the impugned judgment to this extent cannot sustain. Reliance in this respect can be placed on Allah Ditta v. The State (2010 SCMR 1181), Bakhtiar v. The State and others (2009 MLD 131), Javed Hayat and another v. The State (PLD 2006 Lahore 167) and Muhammad Sarwar v. The State (2005 PCr.LJ 1005).
21. For the foregoing reasons, the Criminal Appeal No.1848 of 2011 is allowed and judgment dated 29th of November, 2007 is hereby set aside to the extent of confiscation of vehicle No.R-0154- Karachi.