IQBAL AHMED KASI, J. Appellant Muhammad Nawaz son of Muhammad Ghafoor, was tried in case FIR No.150 of 2021, dated 24th November, 2021, under section 9(c) of the Control of Narcotic Substances Act, 1997 ("the Act of 1997"), with Pakistan Coast Guard, Uthal, on the allegation that on interception and search of Shandar Coach, bearing Registration No.LXK-1012 at Naka Kharadi Check Post, coming from Winder side, the appellant/accused was found travelling at seat No.16, and a bag, brown in color was kept on his foots, to which he owned. On search of the said bag, 27 packets of Charas weighing 32 Kilograms and 01 packet of Opium weighing 500 grams were recovered.
2. The learned Special Judge Under the Control of Narcotic Substances/Sessions Judge, Uthal ("the trial Court"), vide its judgment dated 22nd February 2022 ("the impugned judgment"), convicted the appellant under section 9(c) of the Act of 1997, and sentenced him to suffer R.I. for life imprisonment and to pay a fine of Rs.2,00,000/- (rupees two lacs), in default whereof to further undergo SI for 6 (six) months. Benefit of section 382-B was also extended in favour of the appellant.
3. During trial, the prosecution examined five witnesses i.e. PW-1 Sobedar Arif Mehmood (complainant of the case), PW-2 Sepoy Ghulam Muhammad (witness of recovery memo), PW-3 Naik Zahid Usman (possessor of the contraband material), PW-4 Naik Shafqat Ali (taken the recovered material for chemical examination) and PW-5 Naib Sobedar Shafiullah (Investigating Officer of the case). In his statement under Section under section 342, Cr.P.C, the appellant/accused denied the allegations levelled against him by the prosecution, but neither he opted to record his statement under section 340(2), Cr.P.C., nor produced any witness in his defence.
4. The learned counsel for the pauper appellant contended that the case of the prosecution is false; that no public witness appeared to support the prosecution version with regard to alleged recovery of charas from the possession of the appellant; that all the prosecution witnesses are Coast Guard officials, whose testimony is devoid of any credibility, due to inter se contradiction in their statements; that the representative sample was not separated by properly separate parcel for each sample.
5. The Additional Prosecutor General, on the other hand defended the impugned judgment by submitting that the evidence led by the prosecution had been relied upon by the trial Court, and the finding rendered do not call for interference; that there is nothing on record to indicate that any of the prosecution witness was inimical towards the appellant to falsely implicate him in the case.
6. We have heard the learned counsel for the parties and have also gone through the impugned judgment and evidence produced by the prosecution. Perusal of record reveals that prosecution in support of its case produced as many as five witnesses, out of whom, PW-1 and PW-2 are the star/eye-witnesses of the case. Perusal of Statement of PW-1 shows that he has narrated the same facts and figures, as laid down in the FIR Ex.P/1-E, about the recovery of 27 packets of charas weighing 32 kilograms and 01 packet of opium weighing 500 grams from the bag owned by the appellant/accused Muhammad Nawaz. The statement of PW-1 further reveals that his statement is in line with the FIR while narrating the facts in respect of date, time, place and mode of recovery. On the other hand the learned counsel for the appellant neither disputed the fact that at the relevant time, the appellant was not travelling in the passenger bus, nor established that the seat No.16 was not reserved by him.
7. The contention of the learned counsel for the appellant that there is sheer violation of section 103, Cr.P.C. for non-associating private Mushir, despite the fact that private persons were also travelling in the passenger bus, having no weight. Before dilating upon the contention of the learned counsel for the appellant, it would be advantageous to reproduce section 25 of the Act of 1997, which reads as under: "25. Mode of making searches and arrest.---The provision of the Code of Criminal Procedure, 1898, except those of section 103, 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 arrests and searches made under these sections."
The perusal of above provision of law denotes that non-compliance of section 103, Cr.P.C. could not be considered as strong ground for holding that trial of accused is bad in the eye of law, as official witnesses are competent witnesses and their statements cannot be discarded merely for the reason that they belonged to any department. Section 25 of the Act of 1997, loudly suggests that there is no provision to comply the section 103, Cr.P.C, on the other hand, the complainant categorically stated while lodging the FIR that no one from the passengers was ready to associate them, as a private Mushir. It has already been settled down by the Hon'ble apex Courts that official witnesses are trustworthy witnesses, until and unless, any ill-will of the said witnesses is found towards the accused. In the instant case, learned counsel for the appellant has failed to point out any ill-will of the Coast Guard officials against the appellant/accused.
8. As far as the contention of the learned counsel for the pauper appellant that the representative samples have not been taken from the recovered contraband material, has no substance, as the PW-1 specifically stated that sample from each packet weighing 50/50 grams, total 1350 grams from the recovered Charas and 50 grams from the Opium, was separated for chemical analysis and this portion of his statement was not challenged in the cross-examination. The FSL report Ex.P- 5/B further supports the contentions of PW-1. In the case titled Shah Muhammad v. The State 2012 SCMR 1276, the Hon'ble Supreme Court of Pakistan, observed as under: "As far reliance placed by the learned counsel for the appellant on the judgment of Ameer Zaib (supra), we find that the facts of this case are distinguishable in as much that in the instant case appellant has consistently denied the factum of recovery of any narcotics from him whereas there is sufficient ocular account of two witnesses that in their presence and from possession of the appellant huge quantity of charas was recovered weighing 8-1/2 mound. In this case both the witnesses have categorically stated that 10 grams each were taken out from each bundle making the total of 170 grams which were dispatched for analysis to the Chemical Laboratory, the report whereof is positive. Whether 10 grams sample each was taken from 17 bags or 17 packets at least one fact is common, between the two witnesses that 17 samples were taken from 17 bags/packets, making total of 170 grams for comparison. Each bag/packet if taken to be of one kilogram then the minimum quantity regarding which it is proved that taken samples there from were weighing 17 kilograms. If this is the case of the appellant, even then his case still remain within the scope of section 9(c), C.N.S.A."
9. Moreover, though there are minor contradictions in the statements of the PWs, but that contradictions cannot dent the prosecution story and the Apex Courts have also held in remarkable judgments that acquittal order cannot be passed merely on minor contradictions.
Thus, in view of above facts and circumstances, we found that the learned counsel for the appellant has failed to make out his case, as such, the Criminal Jail Appeal No. 21 of 2022, is hereby dismissed.