TARIQ MEHMOOD JAHANGIRI, J. By way of this judgment we intend to decide Criminal Appeal No. 215 of 2021 filed by Mst. Nazo Bibi and Criminal Appeal No. 209 of 2021 filed by Muslim Khan arising out of judgment dated 02.12.2021, passed by learned Judge, Special Court (Control of Narcotic Substances), Islamabad in a case FIR No.210/19 dated 28.10.2019 under sections 9(c)/15, CNSA, 1997 registered at Police Station ANF-RD North Rawalpindi, whereby appellant Muslim Khan has been convicted under section 9(c), CNSA, 1997 and sentenced to imprisonment for life with a fine of Rs.50,000/- (Rupees Fifty Thousand only) and in default of payment of fine to further undergo 05 months Simple Imprisonment, whereas, appellant/Mst. Nazo Bibi was convicted under section 9(c), CNSA, 1997 and sentenced to Rigorous Imprisonment for (six) 06 years with a fine of Rs.10,000/ (Rupees Ten Thousand only). In default of payment of fine, she shall further undergo (one) 01 month ...Simple Imprisonment. Benefit of section 382-B, Cr.P.C. has also been extended to the appellants/convicts.
2. Brief facts of the prosecution case are that on 27.10.2019, PW-4/Inspector Sheraz Sadiq was posted in the police station ANF/RD North, Rawalpindi. At about 18:00 hours, the special informer informed the high ups who informed Inspector Sheraz Sadiq that Mansab Khan son of Jahangir Khan resident of Jamrood, through special workers namely Muslim Khan son of Ajmeer Khan and Nazo wife of Akbar Khan along with a minor baby girl through vehicle bearing registration No.LEC- 5243 white Toyota Corolla, in between 19:30 hours to 20:30 hours, will smuggle huge quantity of narcotics from KPK to Lahore Punjab, via M-1 Toll Plaza Islamabad Exit. On receiving this information, on the directions of high ups Inspector Sheraz Sadiq, H/C Murtaza Khan, constables Imtiaz Aslam, Muhammad Ijaz, lady police constable Misbah Tabassum, driver constable Muhammad Riaz along with informer, duly armed on official vehicle bearing registration No.RIG-1177 left the police station at about 18:10 hours and reached the place regarding which information was received and started secret surveillance of the vehicles coming from KPK side to Islamabad. At about 20:00 hours, the vehicle regarding which information was received was seen coming from KPK side in which one man along with a lady and a baby were boarded which was pointed out by the spy. With the help of accompanying officials the vehicle was stopped. On asking from the driver about his name and address, he told his name as Muslim Khan son of Ajmeer Khan resident of KPK. Through Lady Constable name and address was asked from the Lady accused who told her name as Nazo wife of Akbar Khan resident of KPK. The Lady also told that the name of the minor baby was Hajra and her age was 02 years and 06 months. On inquiry from both the persons regarding the narcotics, after some hesitation, both the accused disclosed regarding presence of narcotics in the secret cavity made in motorcar near the petrol tank. The Lady accused also made disclosure regarding presence of narcotics in the Ladies purse in her possession. As per disclosure of both the accused, in their presence, the secret cavity near the petrol tank was opened with the help of tools. 43 packets were recovered from the secret cavity, which were opened and checked. Out of the recovered packets, from 35 packets Charas was recovered which were weighed at the spot.
Weight of each packet of Charas came out to be 1200/1200 grams each. The total weight of 35 packets of Charas came out to be 42 kilograms. From each recovered packet of Charas, 10/10 grams of Charas was separated for chemical analysis in sealed sample parcels Nos.01 to 35. The remaining case property of Charas of 20 packets was sealed in sealed parcel No.36 which is Ex.P-1 wheras 15, packets of remaining case property of Charas were sealed in sealed parcel No.37 which is Ex.P-2. From the 08 packets, Opium was recovered which, on weighing, came out to be 1200/1200 grams each. The total weight of 08 'packets of opium came out to be 9 kilograms and 600 grams.
10/10 grams of opium was separated from each recovered packet of opium for chemical analysis and were sealed in 08 sample parcels from serial Nos.38 to 45. The remaining case property of 08 packets of Opium was sealed in parcel No.46 which is Ex.P-3. From the Ladies purse of Lady accused, the lady constable Misbah Tabassum recovered 03 packets which were opened and checked and Opium was recovered from the said packets. Weight of each packet came out to be 1200/1200 grams and total weight of the recovered 03 packets of opium came out to be 03 kilograms and 600 grams. 10/10 grams of opium was separated from each recovered packet for chemical analysis which was sealed in parcels Nos.47 to 49. The remaining case Property of 03 packets of opium was sealed in parcel No.50 which is Ex.P-4. All the sample parcels and parcels of remaining case property were sealed with seal SS. On further search of the vehicle, coloured registration book of the vehicle was recovered. All the prepared sample parcels, parcels of remaining case property, vehicle Ex. P-5 along with key Ex.P-6, and documents of vehicle Ex.P-7 were taken into possession through recovery memo Ex.PC witnessed by witnesses Murtaza Khan, Imtiaz Aslam and lady constable Misbah tabassum. Personal search of accused Muslim Khan was conducted and as a result of which, Pakistani Currency Rs.1500/- Ex.P-8, 02 mobile phones Nokia Ex.P-9 and Ex.p-10, CNIC of accused Ex.P-11 were recovered which were taken into possession by Inspector Sheraz Sadiq through recovery memo Ex.PD witnessed by witnesses Murtaza Khan and Imtiaz While keeping in view the modesty of lady accused, her personal search was conducted by lady constable Misbah Tabassum and as a result of which Pakistan currency Rs.1000/- Ex.P-12 was recovered which was taken into possession by the IO through recovery memo Ex. PE witnessed by witnesses lady constable Misbah Tabassum, H/C Murtaza Khan and constable Imtaiz Aslam.
3. The accused were formally arrested. The complaint Ex.PA was prepared and sent through Constable Muhammad Ijaz at 23:00 hours for registration of FIR. Inspector Sheraz Sadiq recorded the statements of witnesses at the spot. I.O. also prepared the rough site plan of the place of occurrence Ex.PF. On receiving the reported complaint and copy of FIR, head notes of all the prepared documents and parcels were completed by mentioning the particulars of case on them.
Inspector Sheraz Sadiq issued information slips of the accused persons. He along with accompanying officials, accused persons and daughter of accused Nazo, sample parcels, parcels of remaining case property including the vehicle, its key and articles of personal search of the accused persons reached the police station ANF/R D North, Rawalpindi at about 03:00 hours. Entry was made in the roznamcha. He handed over the case property to Moharrar Maalkhana and the vehicle was parked in the MT of police station ANF/RD North. Inspector Sheraz Sadiq along with lady constable Misbah Tabassum took the lady accused along with her daughter to the Women police station at about 03:20 hours and handed over to the duty officer. He obtained rapt of the entry of raznamcha of women police station and returned to the PS ANF/RF North, Rawalpindi. At about 08:30 hours, he along with lady constable Misbah Tabbasum left the police station ANF/RD North, Rawalpindi for the Women Police Station and brought the lady accused along with her daughter to PS ANF/RD North, Rawalpindi at aobut 09:40 hours. Inspector Sheraz Sadiq alongwith Constable Aamir Nawaz, lady police constable Shagufta Tabassum took the accused along with minor to the Court of learned Judicial Magistrate, Islamabad West and produced them before the Court. The learned Judicial Magistrate sent the lady accused along with her minor daughter to the Central Prison, Adyala Rawalpindi on judicial remand and granted 02 days police custody of accused Muslim Khan. On completion of physical remand of accused Muslim Khan, he was produced before the learned Judicial Magistrate, Islamabad and sent to Central Prison, Adyala Rawalpindi on judicial remand. On 29.10.2019, all the sample parcels (46) were sent to the NIH, Islamabad through Constable Mazhar Ali for chemical analysis by handing over to him application in Urdu, docket in English and sample seal. PW-4/IO recorded the statements of Moharrar Maalkhana H/C Abdul Razzaq and Constable Mazhar Ali. On receiving the positive reports Ex.PG, Ex.PH, Ex.PJ, Ex.PK, Ex. PL, Ex.
PM, Ex.PN, Ex. PO and Ex. PP from NIH Islamabad regarding the sample parcels sent for chemical analysis the same were made part of the record. Investigating Officer handed over the file to the In-charge of police station for submission of challan.
4. During investigation, accused were found guilty and report under section 173, Cr.P.C. was submitted in Court against the accused. On 11.09.2020, as required under section 265-C, Cr.P.C., copies of documents and statements were supplied to the accused and on 23.09.2020, Charge against the accused was framed under sections 9(c)/15, CNSA, 1997 to which accused pleaded not guilty and claimed trial.
5. To establish Charge, prosecution examined the following witnesses: i. PW-1: Mazhar Ali Constable who collected sealed sample parcels from Moharrar Maalkhana namely Abdul Razzaq H/C for onward transmission to the office of NIH, Islamabad on 29.10.2019, and deposited the same in the office of NIH, Islamabad. Parcels remained intact in his possession. ii. PW-02: Abdul Razzaq H/C is the Moharrar of Police Station ANF/RD North, Rawalpindi received sealed sample parcels of recovered contraband from I.O on 28.10.2019, along with articles on personal search and vehicle No.LEC-5243 and handed over sealed sample parcels of recovered contraband to Mazhar Ali Constable PW-1 for onward submission to the office of NIH, Islamabad and also received road certificate from PW-1 on his return after depositing sealed sample parcels in the laboratory. iii. PW-03: Muhammad Shah Fahad Hashmi ASI Upon receipt of complaint/Istighasa Ex.PA sent by PW-4/Inspector Sheraz Sadiq through Sepoy Ijaz, recorded FIR NO.210 of 2019 Ex.PB without any addition of omission and handed over the carbon copy and original reported complaint to Sepoy Ijaz for handing over to PW-4/Inspector Sheraz Sadiq for investigation. iv. PW-04: Inspector Sheraz Sadiq I.O. and eye-witness of the occurrence/Exhibits Misbah Tabassum Lady Constable eye-witness of the occurrence/Exhibits v. PW-05: Misbah Tabassum Lady Constable eye-witness of the occurrence/Exhibits vi. PW-06: Murtaza Khan HC eye-witness of the occurrence/Exhibits.
6. After the completion of trial, statements of appellants/accused under section 342, Cr.P.C. were recorded, wherein they denied the prosecution allegations leveled against them and professed their innocence.
7. Learned Judge Special Court (CNS) Islamabad after hearing the arguments of learned counsel for both the parties, examining the evidence available on record convicted and sentenced the appellants / accused as stated above vide impugned judgment, hence the appeals.
8. Learned trial Court in the impugned judgment has already discussed facts of the case as well as the evidence in detail and there is no need to repeat the same to avoid duplication and unnecessary repetition.
9. Learned counsel for the appellants states that no recovery has been effected from possession of the appellants/accused; prosecution / ANF authorities have not asked private persons to become witnesses of occurrence; complainant and I.O. of the occurrence is the same; Sepoy Ijaz who took the complaint/Istighasa for registration of case to police station has not been produced as witness in the learned trial Court.
10. Appellant Mst. Nazo Bibi/accused was arrested while carrying minor daughter of two and half years and due to her incarceration in jail, life and future of her minor daughter is being damaged/spoiled. There are material contradictions in the statements of witnesses regarding time of occurrence and confining of Mst. Nazo bibi/accused to the Women Police Station. Main accused namely Mansab Khan has not arrested; police has not collected evidence regarding ownership of vehicle used in the commission of crime; chemical examiner has not given the report regarding separate/each sample of contraband; prosecution has badly failed to prove its case; the case has been registered by the ANF just to show their progress to high ups; it is a complete case of acquittal, therefore, accused be acquitted from all charges of this case being innocent and have prayed that appeals be allowed and the impugned judgment be set aside.
11. Learned SPP of ANF fully supported the impugned judgment and in particular contended that the recovery of huge quantity of contraband has been effected; it had been kept in safe custody following its recovery until the time it was sent and received in the office of Chemical Analyzer for chemical examination, coupled with the report of Chemical Analyzer which is positive; there is no enmity of prosecution witnesses to depose against the appellants/accused; prosecution has fully proved its case beyond any shadow of doubt; that the learned trial Court passed the impugned judgment after appreciating the evidence available on record in its true perspective; therefore, under these circumstances, he prays that both the appeals be dismissed.
12. We have heard the arguments advanced by learned counsel for the appellants, learned SPP of ANF and perused the record with their able assistance.
13. Appellants/ accused were apprehended while carrying huge quantity of contraband i.e. Charas weighing 42 kilograms and Opium weighing 13 kilograms 200 grams from their possession.
14. Prosecution has produced 03 witnesses of occurrence as well as witnesses regarding the safe custody of carrying samples to office of Chemical Analyzer.
15. Prosecution has also produced analysis reports of National Institute of Health Drugs Control and Traditional Medicines Division, Islamabad dated 08.11.2019, wherein it is concluded that submitted samples were identified to contain Charas and opium on the basis of test(s) performed, protocol of the test performed is also mentioned on the reports of Chemical Analyst in detail.
16. The accused/appellants have not taken any specific defense plea in their statements recorded under section 342, Cr.P.C. and in reply to a question that why this case and PWs have deposed against them; the appellants have stated that PWs are ANF officials and being interested witnesses have falsely implicated them in a false case, they are innocent and have not opted to appear as witnesses in order to prove their innocence under section 340(2), Cr.P.C.
17. Main argument made by learned counsel for the appellant Mst. Nazo Bibi that she took lift from the accused Muslim Khan and was unaware of presence of any contraband etc. in the vehicle; Mst.
Nazo Bibi is resident of Dargai Upper Shah Malakand; her age is mentioned as 30 years; she was also having a minor daughter aged about two and half years, whereas co-accused Muslim Khan is resident of Torkel Mohallah Sook Koki Khel Jamrood, District Khyber Agency and aged about 40 years. It is not convincing/justified in any manner that a young girl having a minor daughter, in the province of KPK will take lift from a stranger who is also aged about 40 years, from Rashaki Interchange, Nowshera for travelling towards Islamabad. Mst. Nazo Bibi has not produced any evidence in defense that why she was coming to Islamabad along with her minor daughter. She has also not provided particulars of address or name etc. of her relatives in Islamabad to whom she intended to visit. Absurd and unjustified defense has been taken by Mst. Nazo Bibi which clearly proves her involvement in the instant occurrence.
18. While dismissing the appeal against conviction of a female accused of CNSA, Hon'ble Supreme Court of Pakistan has held in a case titled as "Shazia Bibi v. The State" (2020 SCMR 460) that: "soon after her arrest, with the assistance of a female staffer, she was produced before a Magistrate who remitted her into judicial custody, a most opportune occasion to raise protest; her silence goes a long way to rebut the belatedly related story that otherwise may not find a buyer."
19. Prosecution case hinges upon the statements of Inspector Sheraz Sadiq/PW-4, Lady Constable Misbah Tabassum/PW-5 and Head Constable Murtaza Khan/PW-6. These witnesses have narrated the prosecution story in a natural manner and remained consistent throughout and their testimony could not be shattered by the defence despite lengthy cross-examination. The said witnesses had no enmity with the appellants to falsely implicate them in the present case as a huge quantity of 42 kilograms of charas and 13 kilograms 200 grams of Opium cannot be foisted upon the appellants to fabricate a fake case.
20. Adverting to the contention of learned counsel for the appellants/accused that no private person was joined in recovery proceedings except police officials, which is a violation of section 103, Cr.P.C. There appears no force in the contention of learned counsel as the application of section 103, Cr.P.C., has been excluded by section 25 of the Act, in narcotics cases. Hon'ble Supreme Court of Pakistan in number of judgments has held that testimony of police officials is as good as any other private witness unless it is proved that they have animus against the accused. However, no such thing could be brought on record by the appellants in this case. In a case titled as "Salah-ud- Din v. State" (2010 SCMR 1962) it is held that: "Reluctance of general public to become witness in such like cases has become judicially recognized fact and there was no way out to consider statement of official witness, as no legal bar or restriction has been imposed in such regard. Police officials are as good witnesses and could be relied upon, if their testimony remained un-shattered during cross-examination."
It is also held in the case titled as "Zafar v. The State" (2008 SCMR 1254), 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".
21. ANF officials separated the samples from each packet in a prescribed manner and sent the same to the office of National Institute of Health Drugs Control and Traditional Medicines Division, Islamabad. The reports whereof show that all the samples were subjected to chemical and instrumental analysis and the same were found to be narcotic substance.
22. While recovery of narcotics has been effected from the vehicle driven by the appellant Muslim Khan, hence the appellant has been found responsible for transporting huge quantity of narcotics having prior knowledge of the same in his vehicle. 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 as held by the Hon'ble Supreme Court of Pakistan in the case titled as "Kashif Amir v. State" (PLD 2010 SC 1052). The relevant portion is reproduced hereunder:- '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 Incharge 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.
State (1998 SCMR 1899), this court has observed that knowledge and awareness would be attributed to the Incharge of the vehicle".
23. As far as minor contradiction in the time of arrest and detaining the accused in the police lockup is concerned, the occurrence took place on 27.10.2019, whereas the statements in the Court were recorded on 29.07.2021, i.e. after about 02 years of occurrence so it cannot be expected that witnesses will give the timing etc. of acts done by them in a very perfect/accurate manner. It has been held by the Hon'ble Supreme Court of Pakistan in a case titled as "Anwar Shamim and another v. The State" (2010 SCMR 1791) that; "It is settled principle of law that minor contradictions or improvements in the statement of witnesses are to be overlooked."
It is also held in a case titled as "Muhammad Shabbir and others v. The State" (2020 SCMR 1206) that: "It is established law that if the discrepancies are shattering the prosecution story on salient feature then it has substance to intervene on the subject otherwise it has no impact on the veracity of the prosecution story."
24. Hon'ble Supreme Court has time and again held that the menace of drugs is increasing day by day due to various reasons. It is very disheartening to observe that every day there are many reports of drug peddlers being caught with drugs. This menace is a great threat to a peaceful society and is affecting many lives especially the youngsters, therefore, immediate steps are required to be taken to curb these nefarious activities. The proceeds of narcotics are largely utilized in anti-state/terrorist activities, which this country is facing since decades. In this regard reliance is placed on a case titled as "Faisal Shahzad v. The State" (2022 SCMR 905).
25. When the prosecution is able to prove its case on its salient features then unnecessary technicalities should not be allowed to hamper the very purpose of law on the subject. Close analysis of the whole prosecution evidence i.e. recovery of huge quantity of narcotics, separating the samples from each packet in a prescribed manner and sending them to the Chemical Examiner, report of the Chemical Examiner and statements of the prosecution witnesses when evaluated conjointly leaves no room to come a different conclusion than what has been arrived at by the learned courts below.
26. Keeping in view the laws laid down by the Hon'ble Supreme Court of Pakistan in the following cases, whereby appeals against convictions were dismissed and sentences awarded by learned Trial Courts were upheld: i. ease titled as Ajab Khan v. The State (2022 SCMR 317). ii. Case titled as Matti Ullah v. The State (2020 SCMR 1222). iii. Case titled as Aijaz Ali Rajpar v. The State (2021 SCMR 1773). iv. Case titled as Mian Khalid Perviz v. The State through Special Prosecutor ANF and another (2021 SCMR 522). v. Case titled as Shazia Bibi v. The State (2020 SCMR 460).
We are of the considered view that the prosecution has successfully proved its case against the appellants beyond any shadow of reasonable doubt. The defence has miserably failed to extract any material discrepancies or contradictions from statements of the prosecution witnesses.
Accordingly, we dismiss both the appeals and uphold the impugned judgment passed by the learned Judge, Special Court (Control of Narcotic Substances), Islamabad.
27. The case property shall be dealt with as directed by the learned trial Court. The record of the learned trial Court be sent down immediately.