KHADIM HUSSAIN TUNIO, J.---Through this judgment, we intend to dispose of the above Criminal Appeal, whereby appellant/convict Vicky Kumar Hindu has challenged his conviction recorded by the learned Additional Sessions Judge-III/MCTC, Sukkur, vide judgment dated 07.08.2019, in Special Case No. 37/2013, Re: State v. Vicky Kumar, outcome of FIR No.11 of 2013, under section 9(c) CNS Act, 1997, registered at Police Station ANF Sukkur, awarding him sentence to suffer life imprisonment with fine of Rs.100,000/-, in case of default of payment of fine, the accused shall further undergo S.I. for one year with benefit of Section 382-B, Cr.P.C.
2. It is alleged that on 7.4.2013 at about 1500 hours, appellant was arrested by a police party of Police Station ANF Sukkur, headed by Inspector Ghulam Abass, who recovered 35 K.Gs of charas from the appellant Vicky Kumar in presence of mashirs, for which FIR was lodged against him
3. The trial Court framed the charge against appellant, to which the appellant pleaded not guilty and claimed to be tried.
4. In order to prove the charge against the appellant, the prosecution examined P.W-1 complainant Inspector Ghulam Abass and Syed Salman, who produced numerous documents in their evidence.
Thereafter, prosecution side was closed vide statement at Ex.9.
5. The statement of appellant/ accused was recorded under Section 342, Cr.P.C., in which he denied the allegations of the prosecution levelled against him. He claimed his innocence and false implication in this case. However, appellant also examined himself on oath and DW Shrimati Tara Bai in his defence.
6. After full dress trial, the appellant was convicted and sentenced by the learned trial court, supra, thereafter he preferred a Criminal Appeal No.D-67 of 2016 before this Court, which was heard and this Court set aside the impugned judgment dated 16.3.2016, vide judgment dated 2.5.2019, remanded the case to trial court with direction to learned trial court to re-examine the appellant on oath and to provide him fair chance to examine his second witness in his defence and then to rewrite judgment after providing chance of hearing to all the concerned. In compliance of the judgment dated 2.5.2019 passed by this Court, learned trial court after complying the direction, vide judgment dated 7.8.2019 convicted the appellant and sentenced him to suffer imprisonment for life and to pay fine of Rs.100,000/-and in case of default in payment of fine, he shall further undergo S.I. for one year, hence the instant Criminal Appeal was filed.
7. Learned counsel for the appellant has argued that the judgment of the trial Court is against the law, facts and equity and the same is liable to be set-aside; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant. He next argued that the complainant failed to associate any independent and respectable person of the locality to witness the alleged recovery. He then argued that the appellant has been falsely implicated in this case. Learned counsel further submits that through the entry No.5 produced by the complainant in his evidence, he had left along with his staff in relation to the present case, so also one PC Aijaz Shah had left for the inquiry of a car in Crime No. 10 of 2013. He also argued that there is contradiction between evidence of the complainant and PW. Lastly, he has prayed for setting aside of the impugned judgment and acquittal of the appellant.
8. On the other hand, learned SPP ANF, appearing on behalf of the State has vehemently opposed the appeal and supported the impugned judgment by arguing that huge quantity of 35 K.Gs charas has been recovered from the possession of appellant. He further argued that police officials have no enmity with the appellant nor such evidence has been brought on record by the defence to that the appellant has been falsely implicated in the case by the police. He also submits that it would not be so easy for the police to manage such a huge quantity of charas and to plant it on the appellant/accused. He has further argued that complainant and P.Ws have fully supported the prosecution case. He added that the prosecution case and evidence is confidence inspiring, natural and has not been shaken in cross-examination, which has been fully corroborated by positive chemical examination report, as such, the appellant has been rightly convicted and sentenced; that there are minor contradictions in the evidence; that the recovered contraband was referred to Chemical Examiner on the next day of recovery. He lastly prayed that the instant appeal is liable to be dismissed.
9. We have considered the above contentions of the learned counsel for the appellant and learned SPP ANF and have gone through the entire evidence very carefully.
10. After perusing the record, it transpires that complainant Inspector Ghulam Abass has testified that on 07.04.2013, he was posted as Inspector at Police Station ANF Sukkur. On the same day, he along with other staff left P.S in official vehicles left vide entry No.05 at 0130 hours. At 3.00 p.m., they noticed a bus came from Quetta and apprehended a person having a nylon plastic bag containing 35 foil packets of charas. They weighed the same on electronic scale and each packet was found weighing 1000 grams each, totaling to 35 kilograms. From further personal search of the accused, two mobile phone sets, black purse containing Rs.210/-, a key and a plastic coated colour copy of CNIC. Thereafter, memo of arrest and recovery was prepared and thereafter the accused and case property were brought to P.S, where .he lodged FIR against the accused on behalf of the State under section 9(c) Control of Narcotic Substances Act, 1997. Thereafter, 161, Cr.P.C. statements of P.Ws were recorded and Chars was sent to the Chemical Examiner for analysis.
11. Having also scanned the evidence of PW-2 SIP Syed Salman, who has acted as mashir of the case, it has come on record that he has affirmed the facts as deposed by P.W-1 Inspector Ghulam Abass. He has also reaffirmed that the case property was separated for the chemical examiner's analysis. The witness was also cross-examined and during cross-examination, he also denied the suggestions in toto that the accused was not arrested from the place of incident at the time of his arrest. He has also denied that he is deposing falsely against the ' accused at the behest of his superior. The contradictions in the statements of eye-witnesses on which the defense counsel placed so much reliance are very minor in nature. It is pertinent to note here that a witness may make contradictory statements on some of the details of incidents in respect of the one he is deposing in court. These variations may well be due to mere lapse of memory or confusion caused in his mind by a relentless cross-examiner. Moreover, it is not uncommon that a cross-examiner puts words in the mouth of a witness and the presiding officer is not vigilant to check it. The defence counsel could not point out any material discrepancy in the evidence of the eye- witnesses, besides a few minor ones as the one stated above. In this regard, it is held that the same are very minor in nature and any discrepancy in the establishment of the said facts will not cause any effect to the fact that it was in fact the appellant, from whom the recovery was affected.
Moreover, it is well settled principle of law that minor contradictions are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies/contradictions. It needs no special emphasis to state that every contradiction cannot take place of a material contradiction and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness to be considered material. In the present case, the discrepancies so pointed out by the defence counsel are very minor in nature as already stated. The contention with regard to Entry No. 5 is also invalid as through one and same entry, two different crimes were investigated/inquired into as is available on the copy of Roznamcha present before this Court.
12. After a careful scrutiny of the evidence of the witnesses, this Court has found that the prosecution has constituted an uninterrupted chain of facts ranging from seizure and forensic analysis of the contraband. They are in comfortable unison on all the salient features regarding interception of the huge quantity of Chars as well as all the steps taken subsequently. Whole property was sealed and sent to the chemical examiner, which is found by us being exercise sufficient to constitute forensic proof. At the time of arrest, the accused was standing with a nylon plastic bag, wherein 35 kilograms of Chars were secured, therefore, he was responsible for the same alleged to have been secured from his possession. We have also examined the report of Chemical Examiner available on the record as Ex.5-D and have also found that it fully corroborates the evidence of both the prosecution witnesses, whose stand is in nexus with the chemical examiner's report. It is a matter of record that Chars was secured from the nylon bag and the recovered case property was separately sealed and sent to Chemical Examiner, who did not find any tampering with the sealed parcel of the contraband so recovered from the appellant, hence, the report of chemical examiner came in positive. Moreover, all the witnesses have deposed that the case property in court is the same and they were at no point cross-examined on the same point by the defence counsel. Hence, the Chars so recovered from the possession of the appellant has been proved to the extent of realization. The contention of the learned counsel for the appellant that the evidence of PWs is not reliable as the same suffers from material contradictions and inconsistencies, has no force at all until and unless some cogent and reliable evidence is brought on record which may suggest that the appellant is innocent and that his case is beyond any shadow of doubt. The alleged contradictions in the evidence of PWs being urged by the learned counsel for the appellant appear to be minor in nature, which are ignorable and seem to be not fatal to the prosecution case. It is well-settled proposition of law due to flux of time, in the case of transportation or possession of Narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country, if the case stands proved the approach of the Court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of the cases. The Court should consider the entire material as a whole and if it is convinced that the case is proved then conviction should be recorded notwithstanding any procedural defect. Further, the minor discrepancies in the evidence of raiding party do not shake their trustworthiness as expressed by the Honourable Supreme Court in the case of State/ANF v. Muhammad Arshad (2017 SCMR 283).
13. As for as the defence plea raised by the appellant that Chars, has been foisted upon him due to refusal to paying extort money is concerned. the same appears to be afterthought, which has rightly been disbelieved by the learned Trial Conn. The appellant has failed to produce any valid proof regarding his claim. Moreover, the appellant examined his mother D.W. Sherimati Tara Bai.
However, her mere statement is of no consequence to the prosecution case. The Hon'ble Apex Court, vide order dated 27.10.2020 in Jail Petition No. 348 of 2019 (Re: lbrar Ullah v. The State) has been pleased to observe that:- "Belated arrangement by the pennant, of a well wisher to testify in his favour during the trial miserably foiled to override positive evidence pointed towards his culpability on all fours. That said defence witness never joined police investigation and came up with stock and bull story rather late In the day that fails to inspire confidence of even a most unsuspecting listener.'
13. It is an admitted position that the appellant was arrested by the police officials and from his exclusive possession a huge quantity of Chan wan recovered and it would be enough for 3 person of prudent mind to realize that such huge quantity of contraband could not be foisted upon the accused. In this respect, we are fortified by the dictum laid down in the judgment dated 08.01.2020 passed by the Honourable Supreme Court in the case of Shazia Bibi v. The State 2020 SCMR 460, wherein it has been held that:- "Quantity recovered, rather substantial in volume/ weight, cannot be possibly, foisted upon a female to victimize her husband, himself a most suitable target, if at all the police had an axe to grind."
14. Now coming to the contention of learned Counsel that the evidence of police officials is not trustworthy and that no independent or private person has been cited as witness, therefore, per him the case of the prosecution is doubtful, is concerned, which has no force as such contention raised by learned Counsel could have been considered when the evidence of police officials is based upon untruthfulness casting uncertainty, enmity and ambiguity. As far as their testimonies are concerned, there is no universal rule that evidence of an interested witness per se must be invariably corroborated by independent evidence. If that were the case, then why would the courts at all take into account the testimony of interested witness? If no other independent witness is available in the case, it would result in a grave discourage of justice to insist upon independent corroboration. Police officials are good witnesses as any other private witness and their evidence is subject to same standard of proof and the principles of the scrutiny as applicable to any other category of witnesses; in absence of any animus, infirmity or flaw in their evidence, their testimony can be relied upon without demur. In this respect, reliance is placed upon the case of Izat Ullah and another v. The State 2019 SCMR 1975 wherein the Honourable Apex Court has observed as under:- "3............Absence of public witnesses is beside the mark;. public recusal is an unfortunate norm.
Prosecution witnesses are in a comfortable unison: being functionaries of the Republic, they are second to none in status and their evidence can be relied upon unreservedly, if found trustworthy, as in the case in hand. Both the courts below have undertaken an exhaustive analysis of the prosecution case and concurred in their conclusions regarding petitioners' guilt and we have not been able to take a different view than concurrently taken by them. Petitions fail. Dismissed."
15. The above observation has also been taken in the case of Hussain Shah and others v. The State (PLD 2020 Supreme Court 132) wherein the Honourable Supreme Court of Pakistan has held as under:- "3................... a huge quantity of narcotic substance had been recovered and subsequently a report received from the Chemical Examiner had declared that the recovered substance was Charas.
The prosecution witnesses deposing about the alleged recovery were public servants who had no ostensible reason to falsely implicate the said appellant in a case of this nature. The said witnesses had made consistent statements fully incriminating the appellant in the alleged offence. Nothing has been brought to our notice which could possibly be used to doubt the veracity of the said witnesses."
16. The contention regarding the same custody of case property i.e. Chars also holds no merit as the property viz. Chars so recovered from the appellant had been proved adequately by examining the complainant, mashir and the police official responsible for delivery, even otherwise, they were not cross-examined on this part. Same goes for contention with regard to the delay in sending the sample to the chemical examiner. The rules 5 and 6 are directory in nature and do not render the recovered sample untrustworthy if the span of 72 hours has passed. In this backdrop, reliance is placed on the case-law reported as The 'State v. Ishfaque and others (2018 SCMR 2039).
Furthermore, per the chemical examiner's report, the seals were received in intact condition which rules out any question of tampering and it was in fact the examiner who had broken the seals to open the sealed contents. The Honourable Apex Court in a recent Judgment dated 03.03.2020 in 2020 SCMR 590 (Re: Zahid and Riaz Ali v. The State) has observed as under:- "5. The chemical examiner's report produced. by the lady doctor states that the seals of specimens sent for chemical examination were received intact and it was the chemical examiner who had broken open the seals, therefore, the contention of the petitioners' learned counsel regarding the safe transmission of the specimens is discounted both by this fact as well as by the fact that no question was put regarding tampering of the said seals. ..............this is not sufficient to secure an acquittal because there was substantial corroboratory evidence to secure the conviction of the petitioners beyond reasonable doubt."
17. Another view with regard to the above reference has been taken by the Honourable Supreme Court vide judgment dated 09.01.2020 passed in the case of Mushtaq Ahmed v. The State and another (Criminal Petition No.370 of 2019), 2020 SCMR 474 wherein it has been observed as under:- "Prosecution case is hinged upon the statements of Aamir Masood. TSI (PW-2) and Abid Hussain, 336-C (PW-3); being officials of the Republic., they do not seem to have an axe to grind against the petitioner, intercepted at a public place during routine search. Contraband, considerable in quantity, cannot be possibly foisted to fabricate a fake charge, that too, without any apparent reason; while furnishing evidence, both the witnesses remained throughout consistent and confidence inspiring and as such can be relied upon without a demur."
18. In the recent case of Matiullah v. The State (Crl. Petition No. 18 of 2019), 2020 SCMR 1222 the Hon'ble Apex Court through judgment dated 01.07.2020 has been pleased to observe in a case involving only 7,200 grams that:- "The witnesses comfortably responded the cross-examination and the learned counsel has not been able to point out any flaw or discrepancy in their narratives either on salient features of the case or matters collateral therewith; they are in a unison that inspires confidence and, thus, absence of support from the public does not diminish value of their testimony, fortified by a ring to truth. Reluctance by the public to stand in aid of law is symptomatic of abysmal civic apathy which cannot be allowed to be used as an escape route from justice. Being functionaries of the Republic, both of them are second to none in status; their official acts and declarations are statutorily presumed as intra vires and unless proved contrarily and in the absence of any flaw or discrepancy in their depositions their testimony cannot be conditioned by additional riders.
Forensic report sufficiently details tests applied for determination of narcotic character of the contraband, carried out on the samples transmitted from safe custody and as such is not violative of 'protocol' directed by the rules."
19. For what has been discussed above, we are inclined to observe that the prosecution has successfully proved its case against the appellant, therefore, the Judgment dated 07.08.2019 being impugned by the appellant herein, requires no interference by this Court, hence, its hereby maintained and the present appeal being meritless is dismissed.