MRS. RASHIDA ASAD, J.---This Criminal Appeal is directed against the judgment dated 13.02.2018, passed by the learned Judge, Special Court CNS, Shaheed Benazirabad, whereby the appellants Talat Pervez, Qadeer Ahmed and Muhammad Aslam were convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer rigorous imprisonment for life and fine of Rs. 100,000/- (One Hundred Thousand Only) each, in default thereof, to further undergo simple imprisonment for six months. The benefit of section 382-B, Cr.P.C. was, however, extended to the appellants.
2. The case of the prosecution as depicted in the FIR is that on 07.09.2016, complainant, Excise Inspector Abdul Razzak Meerani with his subordinate staff during snap checking at Excise Check Post, National Highway Sakrand, at about 1600 hours stopped one Troller bearing No. LRC-3953, coming from Kazi Ahmed side and due to suspicion it was got stopped. Three persons, including driver were sitting in said Troller who, on inquiry, disclosed their names as Talat Pervez, Qadeer Ahmed and Muhammad Aslam. The Troller was checked and found 100 Kilograms of charas in three different plastic bags. From each packet samples were separated for analysis and sealed on the spot. After completing codal formalities accused and recovered charas were brought at Excise Police Station, where FIR No.01/2016, under section 9(c) of the Act was registered at Police Station Excise Circle Shaheed Benazirabad. After usual investigation, report under section 173, Cr.P.C. was submitted before the competent Court of law and appellants were sent to face the trial.
3. The learned trial Court framed the charge against the appellants on 18.11.2016, to which they pleaded not guilty and claimed to be tried. At the trial prosecution examined the following witnesses:
(i) PW-1 Complainant Inspector Abdul Razzak at Ex. 3;
(ii) PW-2 EC Ghulam Mustafa at Ex. 4;
(iii) PW-3 EC Mubarak Ali Chandio at Ex. 5;
4. On completion of prosecution evidence, the appellants were examined under section 342, Cr.P.C., wherein they denied the prosecution allegations and pleaded their innocence. The appellants did not examine themselves on Oath neither produced any witness in their defence.
5. The learned trial Court, after hearing the parties, on the assessment of the evidence, convicted and sentenced the appellants as stated above, vide judgment dated 13.02.2018, hence this appeal.
6. Learned counsel for the appellants mainly contended that the appellants are innocent and have falsely been implicated in this case; that the appellants being drivers of the Troller are innocent and had no knowledge about the availability of the charas in the Troller; that the complainant and P.Ws being Excise officials are interested and set-up witnesses; that the evidence of such interested witnesses required independent corroboration, which is also lacking in the present case; that all the witnesses are Excise officials and no independent person has been cited as mashirs of arrest and recovery, which is in clear violation of mandatory provision of section 103, Cr.P.C. that the complainant himself conducted investigation of this case: that only 200 grams charas was separated from each packet as a sample and entire case property was not sent to the Chemical Examiner, to believe that the recovery is narcotics and there are material contradictions in the evidence of prosecution witnesses which create serious doubts in the prosecution case; that the prosecution has failed to prove its case against the appellants beyond reasonable doubt, hence they are entitled to be acquitted.. In support of his contentions, reliance has been placed upon the cases (i) Agha Qais v. The State (2009 PCr.LJ 1334), (ii) Abdul Waqar v. The State (2018 YLR 2358),
(iii) Nazeer Ahmed v. The State (PLD 2009 Karachi 191), (iv) Nazeer and another v. The State (2014 PCr.LJ 1358), (v) Abdul Ghani v. The State (2019 SCMR 608), (vi) Shakeel alias Hakla v. The State (2018 MLD 1396) and (vii) Miandad v. The State (2019 YLR 954).
7. On the other hand, learned A.P.G. appearing for the State while supporting the impugned judgment has argued that the prosecution has proved its case against the appellants and arrested them while they were transporting huge quantity of charas which was recovered from the Troller; that the Excise police officials had no enmity to foist 100 Kilograms of charas upon the appellants. She lastly prayed for dismissal of the instant appeal as the appellants have committed a heinous offence, which is affecting the society at large.
8. We have heard the learned counsel for the appellants as well as learned A.P.G. and have minutely gone through the record with their assistance.
9. A careful analysis of material brought on record reflects that 100 kilograms of charas contained in 03 plastic bags, were recovered from the Tool box of cleaner side of the Troller bearing No. LRC- 3953 coming from Kazi Ahmed side. One bag contained 40 packets of charas, in shape of rods total weighing 40 Kilograms, second bag contained 30 packets of charas weighing 30 Kilograms and third bag found contained 30 packets of charas weighing 30 kilograms. Samples were separated on the spot, sealed and sent to the Chemical Examiner. The remaining charas was also sealed accordingly in separate bags. A positive chemical report dated 21.09.2016 was received. The appellants are said to be resident of Tehsil Fateh Jang District Attack. Punjab and they were arrested at National Highway, leading from Kazi Ahmed to Karachi at Excise Check Post National Highway District Shaheed Benazirabad. Admittedly, appellants being drivers of the Troller found responsible for transportation of huge quantity of narcotic substance having prior knowledge and awareness of the narcotics in their vehicle. It cannot be believed that such huge quantity of narcotics was kept in the Tool Box of the vehicle without prior knowledge of its drivers, which undeniably remained in possession and control of the appellants all the way from their village Tehsil Fateh Jang to the place of recovery, rather they being its drivers were fully, responsible for transporting of such huge narcotics in the Troller. Reliance is placed on the case of Kashif Ameer v.
The State (PLD 2010 SC 1052), wherein the Hon'ble Supreme Court of Pakistan has held that:-- "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 CNSA that the possession should be an exclusive one and can be joint one with two or more persons. Further, when a person is driving the vehicle, he is in charge 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 SCMR 927). Similarly, in the case of Nadir Khan v. The State (1988 SCMR 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 CNSA burden shifted 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 SCMR 27). Wherein, this Court while relying upon the cases of Muhammad Arshad v. The State (2007 SCMR 1378) and Mst. Taj Bibi v. The State (2007 SCMR 1591) has held that chemical examiner's report 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 discharged 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 CNSA.
10. As regards the arguments of learned counsel for the appellants for violation of section 103, Cr.P.C., it would be appropriate to refer section 25 of the Control of Narcotic Substances Act, 1997 which reads as under;- "25. Mode of making searches and arrest.---The provisions of the Code of Criminal Procedure, 1898, except those of section 103, Cr. P. C. shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrest, searches made under these sections".
11. Bare perusal of above section would reveal that the applicability of section 103, Cr.P.C. in the narcotics cases has been excluded and non association of any private person as witness is not a serious defect to vitiate the conviction. So far the evidence of police officials is concerned, they are competent witnesses and their evidence cannot be discarded, only for the reason that they are police officials. They have furnished straightforward and confidence inspiring evidence. It is a settled principle of law that the prosecution witnesses being police officials by itself cannot be considered as a valid reason to discard their statements/evidence. The reference in this context is made to the case of Zaffar v. The State (2008 SCMR 1254), the Hon'ble Supreme Court of Pakistan has held that;- "Police employees are the competent witnesses like any other witnesses and their testimonies cannot be discarded merely on the ground that they are police officials".
12. So far the plea raised by learned defense counsel that the complainant has acted as investigating officer in this case and all the witnesses are police officials is of no help to the appellants as there is no bar in the law for a complainant to act as an investigation officer of the case. The reliance in this context is placed upon the case of The State v. Zaffar (2008 SCMR 1254), wherein the Hon'ble Supreme Court of Pakistan has held that;- "Police officer is not prohibited under the law to be 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".
13. Even otherwise, mere status of one as an official would not alone prejudice the competence of such witnesses until and unless he is proved to be interested, who has a motive, to falsely implicate an accused or has the previous enmity with the person involved. The reliance in this context is made to the case of Farooq v. The State (2008 SCMR 970).
14. The next contention of the learned counsel for the appellants that the charas was not safely transmitted to the office of the chemical examiner. It suffices to say that the prosecution has examined PW-3 E.C. Mubarak. According to him on 08.09.2017 he was posted as Excise Constable in Circle Office Na wabshah. On same day SIP Abdul Razzak Meerani handed over property viz charas to him for depositing in the office of Chemical Examiner Rohri vide letter No.11 dated 07.09.2016. On the said date he has deposited the property in the office of Chemical Examiner, came back at Excise Police Station which shows that the property safely transmitted to the office of Chemical Examiner and as per office of Chemical Examiner they received the property in a sealed condition.
Hence the contention of the learned counsel that it was not transmitted safely to the office of Chemical Examiner having no force.
15. The appellants has failed to bring on record any material to show any animosity or with the complainant and the prosecution witnesses, thus in the absence thereof, the competence of prosecution witnesses being officials was rightly believed. Moreover, a procedural formality cannot be insisted at the cost of completion of an offence and if an accused is otherwise found connected, the mere procedural omission and even allegation of improper conduct of investigation could not help the accused.
The reference in this context is made to the case of The State/ANF v. Muhammad Arshad (2017 SCMR 283), wherein the Hon'ble Supreme Court of Pakistan has held that:- "We may mention there that even where no proper investigation is conducted, but where the material that comes before the Court is sufficient to connect the accused with the commission of crime, the accused can still be convicted, notwithstanding minor omissions that have no bearing on the outcome of the case".
16. It is pertinent to mention there that Chemical Examiner's report regarding charas is sufficient to prove that the substance recovered from the appellants can be used to cause intoxication and the prosecution has discharged its initial onus while proving that substance recovered from the possession of the appellants for which the appellants has failed to discharge his -burden in terms of section 29 of Control of Narcotic Substances Act 1997. Further while recording their statements under section 342, Cr.P.C. the appellants admitted that they were the drivers of the vehicle and hailed from district Attack, Fateh Jang, Punjab and claimed that due to non-availability of route permit and driving license and other documents of the vehicle, an altercation took place between them and the police party (complainant), resulting their false involvement in this case. They professed their innocence and prayed for justice but failed to produce any proof of their innocence or false implication in this case.
17. Though the investigation officer and other prosecution witnesses are Excise police officials and they have no enmity or rancor against the appellants to plant 100 Kgs of narcotics substance against them at their own sources. The defense has not produced any evidence to establish animosity qua the prosecution witnesses. In matters of narcotics, the absence of enmity or any valid reason for false involvement would also be circumstances tilting the case against the accused. The reliance is made on the case of Salah-ud-Din v. The State, reported in 2010 SCMR 1962, wherein the Hon'ble Supreme Court of Pakistan has held that,- "...No enmity whatsoever has been alleged against the prosecution witnesses and there is hardly any possibility for false -implication without having any ulterior motives which was never alleged.
In view of overwhelming prosecution evidence the defense version has rightly been discarded which otherwise is denial simpliciter and does not appeal to logic and reasons..."
18. There, all the witnesses have deposed in the same line to support the prosecution's case and despite cross-examination by learned defense counsel at length, the defense has failed to point out any dent or to extract any material contradiction fatal to the prosecution case. The version of the complainant has been fully corroborated by Mashir of arrest and recovery, which is substantiated with a memo of arrest and recovery, FIR as well as roznamcha departure and arrival entry showing their movement and positive Chemical Examiner's report.
19. The case laws cited by learned counsel for appellants are distinguishable from the facts and circumstances of the present case.
20. Considering the above facts and circumstances, we are of the view that prosecution has succeeded to bring the guilt of the accused/appellants at home and has proved its case against the appellants beyond any shadow of a doubt. Learned counsel for the appellants has failed to point out any material illegality or serious infirmity committed by the learned trial Court while passing the impugned judgment, which in our humble view, is based on proper appreciation of evidence and same does not call for any interference. Accordingly, the instant Criminal Appeal No.27/2018 being devoid of merit is dismissed.