MUHAMMAD IQBAL MAHAR, J.---By this common judgment, we intend to dispose of above captioned appeals, as the same have been filed against one and same judgment dated 04.10.2016 passed by learned I-Additional Sessions/Special Judge (CNS), Khairpur in Special Case No,01 of 2013, arising out of crime No,233/2012 of Police Station, Gambat, whereby the appellants were convicted for offence under Section 9(c) Control of Narcotic Substances Act, 1997 and sentenced to suffer RI for 'Life' and to pay fine of Rs,1,00,000/- each. In case of default in payment of fine to suf fer S.I. for one year more.
However , benefit of Section 382-B, Cr .P.C. was extended to the appellants.
2. Precisely , prosecution case is that on 19.12.2012 complainant Inspector/ SHO Asad Nabi Khichi and his sub- ordinate staff, vide entry No,38/2200 hours, were on night patrolling duty, when they reached near Bab-e-Naseem Kharal at National Highway leading towa rds Ranipur , noticed one Toyota Car bearing No,AEY -210 which crossed the Police Mobile rashly . The complainant party also noticed some noise in the engine of the Car and followed it but the Car stopped at some distance. The complainant party encircled the Car from which three persons got down and they were taken into custody . On inquiry , the person sitting on driver's seat disclosed his name as Paruddin resident of Jhat Pat Baluchistan. The persons sitting on rear seat disclosed their names as Mir Hazar and PC Sabir Hussain Thahim. They saw one lady sitting on front seat of the Car, she disclosed her name as Mst. Kainat alias Guriya Seelro. Due to non-availability of private mashirs, ASI Mazharuddin Khuhro and HC Ghulam Shabir were made as mashirs and Car was searched. The police party recovered two bags containing Charas lying in between front and rear seats. They also recovered four bags of Charas and one scale from Dickey of the Car. The bags were weighed and each bag became 24 Kilograms, total 144 kilograms. The accused persons disclosed that they used to sell the Charas and further disclo sed that they were transporting it towards Bhit Shah for selling purpose.
All the six bags were sealed at the spot. From the personal search of the accused nothing, else was recovered. On inquiry accused Paruddin further disclosed that suddenly the Gear of the Car went out of order , hence it was stopped. The mashirnama of arrest and recovery was prepared on the spot in presence of above mashirs.
Thereafter , accused and case property were brought at Police Station, Gambata nd FIR was lodged against the appellants on behalf of State.
3. On completion of investigation, challan of the case was submitted before competent Court of law. The learned trial Court framed The charge at Ex.03 but the appellants pleaded not guilty and claimed trial, such pleas were recorded at Exs.4 to 7.
4. To substantiate the charge, prosecution examined PW-1 complainant Inspector Asad Nabi Khichiat Ex. 08, who produced memo of arrest and recovery , FIR, departure and arrival entries, letter to SSP, report of Chemical Examiner at Ex.8-A to 8-E respectively and PW-2 mashir ASI Mazharuddin at Ex.9. Thereafter , learned SPP closed the prosecution side vide statement at Ex.10.
5. The statements of the appellants/ accused under section 342, Cr.P.C. were recorded at Exs. 11 to 14, in which once again they professed their innocence and false implication in this case however , neither they examined themselves on oath nor produced any witness in defence.
6. On evaluation of evidence, produced by the prosecution, learned trial Court passed the impugned judgment, which has been challenged by the appellants/accused through captioned appeals.
7. Learned Counsel for appellant Sabir Hussain contended that the impugned judgment is against the law and principles of natural justice; that the appellant has falsely been implicated in this case by the complainant due to previous enmity as he had made complaint against the complainant at Jacobabad; that the narcotic substance was recovered from the Car which was being driven by co-accused Paruddin while Mst. Kainat was sitting on its front seat, that appellant Sabir Hussain has no concern with the Car and property; that nothing was recovered from the exclusive possession of appellant Sabir Hussain; that the complainant himself has acted as investigating officer of the case, which shows his personal interest; that the case property' was sent to Chemical Examiner with delay of two days which is not explained; that the place of incident was situated on National Highway but no independent person was cited as mashir which is violation of Section 103, Cr.P.C., .therefore the prosecution case is not free from doubts on the basis whereof the appellant was liable to be acquitted of the charge; hence he prayed for setting aside the impugned judgment.
8. Learned counsel for appellants Paruddin, Mir Hazar and Mst. Kainat adopted the arguments of learned counsel for appellant Sabir Hussain and further added that the alleged Charas has not been recovered from exclusive possession of the appellants but it has been foisted upon them at the instance of father of appellant Mst. Kainat; that in fact appellant Mst. Kainat wanted to contract love marriage with appellant Paruddin and they were going to perform Nikah but were arrested by the Police at the instance of her father , who was annoyed upon her love marriage with Paruddin. He lastly prayed for acquittal of the appellants. Learned counsel for the appellants relied upon case of Naimatullah Khan v. The State (2012 YLR 251) and an unreported judgment dated 11.04.2018 passed by this Court in Criminal Appeal No,D-95 of 2015.
9. Learned Deputy Prosecutor General while rebutting the contentions of learned counsel for the appellants submitted that all the appellants were arrested at spot along with Car, from which huge quantity of Charas was recovered, which cannot be foisted, hence all the appellants are equally responsible for transporting the same; that the appellants have failed to prove enmity with the Police or Nikah of appellant Mst. Kainat with appellant Paruddin; that there is no delay in sending the Charas to the Chemical Examiner as it was sent within two days; that application of section 103, Cr.P.C. has been excluded in narcotic cases, therefo re he supported the impugned judgment.
10. We have heard learned Counsel for the appellants, learned Deputy Prosecutor General and have perused the material available on record.
11. We have observed that the appellants accused were arrested in Car No, AEY 210 while they were transporting huge quantity of Charas. The prosecution examined complainant/SIP , Asad Nabi Khichi and PW/mashir ASI Mazharuddin, who fully supported the prosecution case on material points and categorically deposed that on 19.12.2012 at 2230 hours, during patrolling, they arrested the appellants accused at Bab-e-Naseem Kharl Ranipur and recovered two bags lying in between front and rear seats of the Car and four bags and scale from the dickey containing Charas, each bag became 24 kgs. The Charas was sealed at the spot and such memo was prepared in presence of mashirs. The witnesses were cross-examined by learned counsel for the appellants accused at length but nothing could be brought on record in favour of the appellants/accused. In order to strengthen the departure from PS, the complainant produced departure and arrival entries at Ex.8-C. The witnesses further deposed that the entire case property was sent to Chemical Examiner for examination and report on 21.12.2012 within two days.
The complainant produced chemical report at Ex.8-E which shows that the parcel was received at Laboratory on 21.12.2012, in sealed condition and seals were perfect as per copy of letter sent by the complainant. As per result of the test, the parcel was found containing Charas. In these circumstances the appellants were rightly held responsible for committing the offence charged against them because the knowledge and the conscious possession of the appellants cannot be ruled out because the Charas was not kept in secret cavities but two bags were lying in between front and rear seats of the Car .
12. Adverting to the contention of learned counsel for the appellant/accused that no private person was joined in recovery proceedings except police official, which is violation of section 103, Cr.P.C. There appears no force in the contention of learned counsel as application of section 103, Cr.P.C. has been excluded by section 25 of Control of Narcotic cases. Furthermore, it was night time and both the PWs have deposed that private persons were not available. In case of Zafar v. The State reported in 2008 SCMR 1254 , the Honourable Supreme Court has 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."
13. The next contention of the learned counsel for the appellant/accused was that the parcel was sent to Chemical Examiner with delay of two days and it was kept at PS, hence it can not be said that the same was in safe custody . Apparently there appears no delay in sending the Charas to the Chemical Examiner for the reason that the recovery was made on 19.12.20 12 at 2230 hours and the parcels were received in the office of Chemical Examiner on 21.12.2012, therefore, there is no substance in the submissions made by the learned counsel for the appellants. Furthermore, as per chemical report the seals of the parcels were perfect as per copy of letter sent and no tampering was alleged, therefore it can not be said that the property was not in safe custody .
14. Adverting to next contention of learned counsel for the appellants that the comp lainant has acted as I.O., hence he appears to be an interested witness. It is pertinent to mention here that there is no bar that a complainant can not be an investigating officer of the case. In this respect reliance can be placed upon case of Zafar v. The State supra wherein it is observed as under: So far as the objection of the learned counsel for the appellant that the investigatin g officer is complainant and the witness of 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 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 employee of A. N. F, they had no animosity of rancor against the appellant to plant such huge quantity of narcotic material upon him. The defence has not produced any such evidence to establish animosity qua the prosecution witnesses.
15. Furthermore, the appellants/ accused are resident of Balochistan, Jacobabad and Ratodero respectively and no proof regarding previous enmity with the police or mala fide have been produced by them for their false implication in the case. Neither the appellants examined themselves on oath in disproof of the charge nor examined any defense witness in support of their pleas, therefore, it was not possible for police to foist such a huge quantity of Charas along with Toyota Car against the appellants, thus the initial burden of proof is discharged by the prosecution, hence the onus of proof shifts upon the defence and failure to discharge the same leads to adverse inference against the defence.
16. The facts of case-law relied upon by learned counsel for the appellants/ accused on distinguishable facts and circumstances have got no relevancy with the facts of instant case.
17. Keeping in view the above discussion and case-law referred above, we are of the firm view that the prosecution has proved its case against the appellants beyond any shadow of doubt, hence the impugned judgment passed by learned trial Court does not suffer from any infirmity . Consequently , the captioned appeals being devoid of merits are dismissed and the conviction and sentence, passed by learned trial Court is maintained.