DR. KHURSHID IQBAL, J. This appeal is directed against the Judgment of learned Sessions Judge, Kohat, whereby Musa Raza (the appellant) was convicted under section 9-D of the Khyber Pakhtunkhwa of Control of Narcotics Substances Act, 2019 (KP CNSA) and sentenced to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 1,00,000/- (one hundred thousand) with simple imprisonment for 3 months in default of payment of fine. The appellant and the co-accused were charged vide case bearing FIR No. 123, dated 04.03.2021, registered under section 9-D of the KP CNSA, at Police Station, City, Kohat.
2. Facts of the case precisely are that on 04.03.2021, at about 11.30 am, the appellant and the acquitted accused were riding on a motorbike, bearing Registration No. LB 3882 ZXMCO. The acquitted accused was driving the motorbike. The appellant was sitting behind him. They were apprehended by Asif Mehmood, SHO (PW-4) at a place called City Phattak Nakabandi. The appellant was having a flour sack in his possession. On checking, the police officials found bread crumbs with two packets of charas in the flour sack. The SHO Asif Mehmood weighed each packet and found it of 1200 grams (total 2400 grams). He separated five grams charas from each packet as representative samples for chemical examination. He then sealed the samples and the remaining in three different parcels on which he affixed his monogram 'AK'. He prepared a memo of the recovery which was witnessed by LHC Wahid and ASI Khan Akbar; both signed the memo as its marginal witnesses. He also wrote a murasila of the incident and arrested both the accused by preparing their cards of arrest. He sent the murasila, the parcels and the motorbike to the Police Station where the case in hand was registered. He arrested both the accused vide cards of arrest.
ASI Muhammad Hafeef incorporated the murasila into the FIR (ExPA).
3. SI Anwar Ali Shah (PW-5) investigated the case. He visited the spot and prepared its site plan (Ex.PB) at the behest of the Asif Mehmood, the complainant/seizing officer; recorded the statements of marginal witnesses to the recovery memo and career of the murasila; obtained one day police custody of the accused for interrogation; followed by their judicial custody. He sent the samples to the FSL, obtained their report and placed it on the record along with copies of the daily diaries (Ex.PW.6/4) showing departure and arrival of the seizing party; and, an extract of Register No. 19 (Ex.PW.6/5).
4. As investigation was completed, the final report (challan) was submitted before the learned Sessions Judge. Both the accused were supplied copies of the relevant documents in compliance with section 265-C, Cr.P.C. Charge was framed against them, to which they pleaded not guilty and claimed trial.
5. The prosecution examined as many as 6 PWs. Constable Suleman No. 828 (PW-1) took sample parcel to the FSL. ASI Muhammad Hafeef (PW-2) reduced the contents of the murasila into FIR (Ex.PA). ASI Khalid Nawaz (PW-3) kept the case property in safe custody, parked the motorcycle in the premises of the Police Station. DSP Asif Mehmood, complainant/seizing officer (PW-4), reiterated the facts as mentioned in the murasila. LHC Wahid Khan (PW-5) is the marginal -witness to the recovery memo (Ex.PC). SI Anwar Ali Shah (PW-6) conducted investigation of the case and prepared certain documents, as mentioned in para-3.
6. At the close of the prosecution evidence, statement of the appellant was recorded under section '342, Cr.P.C., wherein he did not wish to be examined on oath under section 340(2), Cr.P.C. or to produce defence.
7. I have heard arguments of Mr. Muhammad Jehangir Khan, learned counsel for the appellant and Ms. Shakila Begum, learned, AAG for the State and perused the record.
8. In order to prove the presence of the appellant on the spot and recovery of the contraband chants from the appellant, in the first instance, the evidence furnished by the complainant/seizing officer (PW-4) and the marginal witness of the recovery memo (PW-5) is of vital importance. It is crystal clear from the statements of both these PWs that the appellant along with the co-acquitted accused, while riding on a motorbike, was apprehended on the place of the occurrence the City Phattak Nakabandi. Both the PWs gave such specific details of the contraband charas, as being in two packets, lying in the flour sack along with crumbs of dried bread, wrapped in yellow scotch tape, which were weighed; each found to be of 1200 grams (total 2400 grams) with pink colour that were sealed in three parcels (the two packets of contraband charas and the crumbs), all were exhibited before the trial Court. The main core of the prosecution case - the apprehension, as such, presence of the appellant on the crime scene, and recovery of the contraband charas from the flour sack in his possession-is established from the evidence of PWs 4 and 5.
9. I would now see if the defence was able to successfully rebut the evidence of these two PWs.
While PW-4 was under cross-examination, a number of questions were asked from him. Those questions pertained to the handwriting of the murasila, the colour of the contraband charas, the site plan and the availability of private persons at the spot. He replied that the murasila was in his own handwriting, the contraband charas whs of pink colour and that the site plan was prepared by the IO at his instance. It was rather confirmed from him that the occurrence took place at the City Railway Crossing. He also explained on his own that it was towards North side of the City Phattak.
He also replied that the area is thickly populated.
10. PW-5 - the marginal witness of the recovery memo was asked about the place of the incident, the colour of the contraband charas and the site plan. He replied that the place of the incident is situated in front of the City Check Post, situated on Hangu Road, Kohat, where he was posted as In- Charge during the time of the occurrence. He further replied that the incident took place in front of the City Check Post, which, as per the site plan, is situated towards East of the City Phattak Nakabandi. He stated that the contraband charas were of brown colour (Pashto: Khar). He further stated that the I.O. prepared the site plan in his presence. He reiterated that the recovery was carried out in his presence and he had seen the contraband charas wrapped in yellow scotch tape.
11. The next crucial evidence is the statement of the I.O. (PW-6). The I.O. testified that he prepared the site plan, received the contraband charas, the motorbike, sent the contraband charas to the FSL, recorded statements of the PWs under section 161, Cr.P.C., and placed on the record extracts from Register No 19 and the Daily Diary report. During his cross-examination, it was confirmed from him that: firstly, he had examined Register No. 19; and, secondly, the place of the occurrence was the City Check Post on the Hangu Road, as shown in the site plan. However, he admitted that the place of the occurrence is a thickly populated area but he did not examine any private person of the locality.
12. The next key aspect of the case is the safe custody and safe transmission of the contraband charas. PW-3, the Muharrir of the Police Station, received the case property from the seizing officer, which he handed over to the IO and then deposited in the Malkhana. His statement under cross- examination reveals that he did not examine the parcels containing the contraband charas, being sealed and did not prepare extracts of the Register No 19. Constable Suleman (PW-1) took the contraband charas to the FSL on 05.03.2020, the next day of its recovery. Nothing material was brought from him under cross-examination. However, he could not show the travel ticket of the private vehicle in which he went to the FSL, nor could he name the official of the FSL to whom he handed over the contraband charas. He could not recall when the IO recorded his statement.
Same is the position of PW-2 (ASI Muhammad Hafeef) who stated that he received the murasila only. These are minor discrepancies.
13. It pertinent to mention that the appellant (and the co-acquitted accused) set up a plea in the cross-examinations of the PWs. Except PW-1, all other PWs were asked under cross-examination that both the accused, who are serving in the Frontier Constabulary, had an altercation with the police officials on the spot. All the PWs denied that suggestion. In their respective statements recorded under section 324, Cr.P.C., in question No. 1, both the accused were asked to explain their position about the charge levelled against them, especially, the recovery of the contraband charas from the flour sack. Co-acquitted accused replied that the appellant was reluctant to produce registration document of the motorbike at which the police officials exchanged hot words with him and that they were shifted to the Police Station and later on, they came to know that they were implicated in the case. Surprisingly, the appellant did not offer any such explanation. It was the burden of the appellant to prove altercation. The appellant having failed to prove the fact he alleged, no ill will or enmity was proved. In Haftay Khan v. The State reported as 2013 PCr.LJ 1374 [Peshawar], the accused set up a plea that on his refusal to pay bribe to the seizing officer, he was implicated in the narcotics case. The accused failed to prove his plea. In another case, titled Sayya r v. The State reported PLD 2015 [Peshawar] 157, the accused pleaded that the car in which he was going on the eventful day, washired by his friend, who on his demand, put some spices in the rear dug of the car which were found to be charas. He could not prove his contention. In Akhtar Zarin v. The State reported as 2022 MLD 796 [Sindh], the accused set up a defence that he was involved in the narcotics case because his wife had filed a complaint against the I.O. In this case, too, the accused could not prove the fact he alleged in his defence.
14. The presence of the appellant on the spot while being apprehended was not doubted in any manner whatsoever. The prosecution's contention- that the flour sack in possession of the appellant contained the contraband charas along with the bread crumbs was not shattered visibly and materially. Not even a suggestion was put to the complainant/seizing officer that the flour sack containing the contraband charas, was not in possession of the appellant, or belonged to the co-acquitted accused, or that the appellant had no knowledge of it. It was fully established that the appellant was caught red handed, having the contraband charas in the flour sack that contained bread crumbs. The place of the occurrence, too, was not fatally doubted. It was brought from the PWs that the place of the occurrence being a thickly populated area, no private person was associated and only the police officials present there were made witnesses of the recovery.
There could be escaping from the fact that section 103, Cr.P.C. is specifically excluded. Additionally, as noted above, evidence of the police Officials who deposed against the appellant was not shattered. There is a judicial view that where possible, private persons may be associated with recovery of narcotic substances. However, that view further holds that in the event of such omission, the evidence of the police officials should be scrutinized with care and caution. That view doesn't stand for fully discarding such evidence (e.g. Taj Wali v. The State PLD 2005 Karachi, 128).
Thus, where in the circumstances of a case, like the one in hand, the evidence of the police officials is natural, consistent, and confidence inspiring, coupled with the fact that either no ill will or enmity is alleged against police officials or alleged but not proved, it will weigh heavily in the scale of justice. Guidance may be sought from certain recent cases.
15. In the case of Faisal Shahzad v. The State reported as 2022 SCMR 905 [Supreme Court of Pakistan], it was held: "All these witnesses have narrated the prosecution story in 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 petitioner to falsely implicate him in the present case."
16. In Liaquat Ali and another v. The State reported as 2022 SCMR 1097 [Supreme Court of Pakistan], the august Court observed: "This Court in a 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 petitioners in this case. This Court has time and again held that reluctance of general public to become witnesses in such like case has become judicially -recognized fact and there is no way out to consider statement of official as good witnesses, 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 remains un-shattered during cross- examination. "
17. Similarly, in Rehmat Gul v. The State 2022 PCr.LJ 10 [Peshawar], the honourable Court was of the view that: "No doubt, the PWs are police officials but nothing in black and white is available on file to show their ill-will or enmity with the appellant to falsely implicate him in case."
18. Another relevant case is of Muhammad Faisal v. The State reported as 2022 YLR 1163 [Sindh].
Its relevant paras read:
13. [...]
(a) That the arrest and recovery was made on the spot and the appellant was caught red handed with the narcotics by the police whose evidence fully corroborates each other in all material aspects as well as the prosecution case. It is well-settled by now that the evidence of a police witness is as reliable as any order witness provided that no enmity exists between them and the accused and in this case no enmity has been suggested against any of the police PW's and as such the police had no reason to falsely implicate the appellant in a false case. Thus we believe the police evidence which is corroborative in all material aspects. In this reliance is placed on ljaz Ahmed v. The State (2009 SCMR 99).
[. . .]
(h) That although no Independent mashir was associated with the arrest and recovery of the appellant it has come in evidence that no private person was prepared to become an independent mushir at the time of arrest and recovery despite, being asked. Even otherwise section 103, Cr.P.C. is excluded for offenses falling under the Control of Narcotic Substances Act, 1997 by virtue of section 25 of that Act. In this respect reliance is placed on the case of Muhammad Hanif v. The State (2003 SCMR 1237)."
19. The learned counsel for the appellant endeavored to pinpoint certain anomalies in the site plan vis-a-vis the DD placed on the record. He referred to the site plan and stated that as per the site plan, the co-accused and the appellant were shown at points # 1 and 2 on the motorbike, which means that the motorbike was facing south (towards Bannu). He, then, referred to the DD in which the motorbike was shown as coming from Hangu (from west). This is not a material contradiction.
The reasons are: firstly, the star witnesses of the prosecution - PW-4 (the complainant/seizing officer), PW-5 (the marginal witness of the recovery memo) and PW-6 (the 10) were not successfully challenged in cross-examination. Second, there was no cross-examination to the effect that the occurrence didn't take place on the site mentioned in the murasila. Rather, as discussed above, the site plan was got confirmed from them. The learned counsel for the appellant then highlighted that PWs 4 and 5 differed over the colour of the contraband charas: the former said it was pink; the latter said it was brown. This, too, could not be termed so substantial as to be seen nugatory of the very recovery from the appellant. In Faisal Muhammad, supra, it was observed:
(d) That there are no major contradictions in the evidence of the PW's and it is well settled by now that minor contradictions which do not effect materiality of the evidence can be ignored. In this respect reliance is placed on Zakir Khan v. State (1995 SCMR 1793)
20. The prosecution also proved the safe custody and safe transmission of the contraband charas as it produced both the police officials who received it for safe custody and entered it in the relevant Register in the police station and the one who took it to the FSL PWs 1 and 3). No delay occurred in sending the contraband charas for chemical examination. The chemical report was positive which noted that necessary protocols were followed in the process.
21. The recovery having been proved, the burden shifted to the appellant that he was innocent.
Although, the appellant strived to toss the plea of altercation with the police officials, he badly failed to substantiate it either by his evidence or even by avowing in his statement recorded under section 342, Cr.P.C. I would again refer to Muhammad Faisal, supra, in which it was held:
(k) Under section 29 C.N.S.A. once the recovery has been proven as in this case the onus shifts to the accused to show his innocence in that at least he had no knowledge of the narcotics. The appellant has not been able to do so in this case. In the case of Mehboob-ur-Rehman v. State (2010 MLD 481) it was held as under in this respect at P485 Para 14.
22. As sequel to my above discussion, I have reached to the conclusion that the prosecution has proved the charge beyond any reasonable shadow of doubt. The plea of altercation was not proved by the appellant. The appellant is admittedly an official of the Frontier Constabulary. Being a member of a law enforcement agency, he could not be expected of possessing a narcotic substance. I find that the learned trial Judge has already taken a lenient view while awarding the sentence. Resultantly, the conviction and sentence awarded by the learned trial Judge are upheld .and the appeal in hand is dismissed.