TANZIL-UR-RAHMAN, C.J.--- This criminal appeal arises out of judgment dated 24-11-1991 passed by the learned Sessions Judge, Mianwali, whereby he convicted the appellant under Article 3(2) of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him to 7 years' R.I., with whipping numbering twenty stripes and also a fine of Rs.50,000. In default of the payment of fine, to undergo further R.I., for two years. The learned Sessions Judge further convicted the appellant under Article 4 of the Prohibition Order IV of 1979 and sentenced him to seven years' R.I., with whipping numbering 20 stripes and a fine of Rs.50,000, in default whereof to undergo further R.I. For two years. Both the sentences were ordered by the learned Sessions Judge to run consecutively. The learned Sessions Judge also did not -grant the benefit of section 382-B, Cr.P.C., for reason's recorded by him.
2. The facts arising out of the above appeal, briefly stated, are that on 7-4-1990 Muhammad Aslam, S.I./S.H.O., Police Station Kundian being present with his subordinates at the Police Check Post in connection with checking vehicles etc. Truck No.BU-9887 coming from Mianwali side was stopped at about 4-00 p.m. Three persons travelling in the cabin of the truck jumped out and started running away. The police party chased and apprehended one of them while the other two managed to escape by slipping away in the nearby jungle. The apprehended accused disclosed his name as Raza Muhammad, and that he was the owner of truck whereas the two escapees, one of its driver Amir Abdullah and the other Faizullah. A thorough search of the truck was conducted by the police party, which found concealed in its tool-box and seized three bags of Charas weighing 62.800 kilograms and three bags containing opium weighing 77.600 kilograms and a plastic envelope containing 1.500 kilograms of heroin. In addition, two .12 bore double barrel guns, two .12 bore single barrel guns, one 7 mm rifle, one .30 bore pistol, twenty-five .12 bore carbines, fourteen 7 mm, four .12 bore and sixty-five .32 bore live cartridges, being found in the said truck, were also seired by the police. Ten grams each of the Charas from each bag of Charas and ten grams of opium from each bag of opium were taken out and made into separate parcels as samples and sealed. Similarly, a parcel of ten grams of heroin was prepared out of the heroin recovered and was sealed. The remaining Charas, opium and heroin were also sealed separately and taken into possession alongwith the sealed sample and the arms and ammunition, as aforesaid, through memo. (Exh.P.B.) attested by Salabat Khan, A.S.I. And Durwaish Khan, Head Constable. The truck and its registration book (Exh.P.8) and four keys were also recovered through another memo. (Exh.P.C.) and attested by the same witnesses. Muhammad Aslam, S.I. Drew up complaint (Exh.P.A.) and sent it to Police Station Kundian through Anaar Khan, Constable for registration of the case. Muhammad Aslam, S.I. Recorded the statements of the witnesses, arrested Raza Muhammad accused/convict-appellant and prepared rough site sketch (Exh.P.D.) showing the place of recovery. The case property including the sealed samples and the scaled parcels was made over intact to Rohtas Khan, Muharrir on the same day and for safe custody and, on completion of the investigation, Raza Muhammad, the accused/convict-- appellant was challaned under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order; 1979, and was sent up to the Court of Sessions Judge, Mianwali, for trial. A separate case was, however, registered against the accused under section 13 of the Arms Act, 1965.
3. The prosecution examined in all four witnesses P.W.1 Muhammad Ashraf, constable, who on 9-4- 1990, received from Rohtas Khan, Muharrir, three sealed parcels of Charas, three sealed parcels of opium and one sealed parcel of heroin and delivered them intact to the Chemical Examiner, Rawalpindi, on the next day Muhammad Rohtas, S.I. (P.W.2) stated before the Court about the receipt of the said parcels, as stated by P.W.1 alongwith other case-property, from Muhammad Aslam, S.I./S.H.O., on 7-4-1990, keeping them in safe custody and delivering them intact to Muhammad Ashraf Constable (P.W.1) on 9-4-1990 for their onward transmission to the office of Chemical Examiner, Rawalpindi. Muhammad Rohtas, S.I. (P.W.2) also stated that he had registered the F.I.R. (Exh.P.A./1) on 7-4-1990 after having received complaint (Exh.P.A.) sent to the police station by Muhammad Aslam, S.I./S.H.O. Through Anaar Khan, Constable. Durwaish Khan, Head Constable'
(P.W.3) stated that on 7-4-1990 he was with Muhammad Aslam Khan, S.I., and the police party at the police Check-Post Kundian Morr on MM-Road in connection with checking etc. He confirmed the prosecution story about stopping the truck No.BU-9887, jumping out three persons out of the cabin including the accused, starting the running away from the spot, giving a chase by the police and Raza Muhammad, being apprehended at the spot whereas the other two managed to escape in the nearby jungle. He also stated in detail the contraband articles, namely, Charas, opium and heroin with their measurement and other details as to taking out samples, sealing them separately and taking into possession the same with registration book, keys and the truck and also the arms and ammunition recovered therefrom. P.W.4 Muhammad Aslam, S.I., gave the same account of the recovery and supported the prosecution story in fall.
4. The appellant, Raza Muhammad, professed his innocence. However, he admitted ownership of the truck in his statement under section 342, Cr.P.C, stating further that he had purchased the same on instalments although the truck was still in the name of its original owner. He, however; asserted that he was called alongwith the truck to Kundian Police Station from . His village Jalalpur and falsely roped in this case by Muhammad Aslam S.1., whom he had abused and insulted when he was Incharge, Police Post Kot Chandna in 1986 and also complained against him to S.P., Mianwali alongwith his uncles Khan Zaman and Shah Nawaz. The accused/appellant further stated that the narcotics and arms and ammunition, in fact. Belonged to Hameed Ullah, A.S.I. Of Mauza Rokhri who was let off by the police under the influence of Gul Hameed Khan Rokhri, then M.P.A. And Adviser to the Chief Minister Punjab and that he (the accused/appellant) was substituted by him. It is, however, noticed that the accused /appellant declined to make any statement on oath in disproof of the allegations and charges made against him. The learned trial Judge, after discussing the evidence in detail and considering all the points. Urged by the learned counsel for the accused/ appellant and the State, did not believe the defence story and convicted and sentenced the appellant, by his judgment, as aforesaid, which is now impugned before us.
5. Hafiz S.A. Rahman, learned counsel for the appellant submitted that challan against the two persons, namely, Amir Abdullah and Faizullah, who are said to be the driver of the truck and the other person Faizullah who are alleged to have managed to escape, was not produced by the police. We have perused the complaint as well as the F.I.R. Which mentions the names of the said two persons. Amir Abdullah driver, and other person Faizullah are also mentioned in the challan which was submitted before the Court, vide column No.7 of the challan. However, it has been stated at the end of column No.7 of the said challan that the case was investigated by the D.S.P. And during investigation the accused Amir Abdullah and Faizullah were found innocent. Therefore, Muhammad Aslam, S.I./S.H.O. Police Station Kundian had no option but to submit the challan on 13- 6-1990 against Raza Muhammad, the convict/appellant only. We will advert to this aspect at the end of the judgment.
6. Learned counsel for the appellant next submitted that- no public witness was examined in the case although there was `Katcha Paka' Hotel at some distance of the place of occurrence. It has bee off and on held by this Court as well as the. Appellate Bench of the S reme Court that the police witnesses are as good witnesses as a public witness unless it is shown that there exists some enmity between the accused and the police officials or there is an ill-will on the part of such police officials. In the instant case, there is an allegation that there was some complaint made by the accused/appellant and his two uncles before the D.S.P. Against Muhammad Aslam S.I./S.H.O. In 1986 when he was posted at another place. Some documents were also filed by the appellant while making statement under section 342, Cr.P.C., but we are not pressed by the said allegation, firstly, because these documents were not produced during the cross-examination of P.W.4 Muhammad Aslam, S.I. So as to give him an opportunity to explain these documents and secondly, these 8 documents do not appear to have any nexus to the case to prove the enmity or ill-will between the appellant and P.W.4 Muhammad Aslam S.I./S.H.O.
7. The learned counsel next submitted that the provision of section 103, Cr.P.C., has not been complied with in the case. Reliance is placed by him on a case reported as M. Younis and others v.
Muneer Ahmad and other 1990 SCMR 498. Ch. Muhammad Ibrahim, learned counsel for the State, on the other hand submitted that section 103, Cr.P.C. Was not applicable because the contraband articles were not recovered from a house. Reliance was placed by him on two cases, namely, Tasleem Khan v. The State PLD 1990 SC 1088 and Altaf Hussain v. The State 1991 P Cr, L J ,579. The cases relied on at the bar on both sides are not applicable to the facts of the case. In 'act the case is covered by a decision of the Appellate Bench of the Supreme Court reported as Syed Muhammad v. The State PLD 1990 SC 1176 wherein a vehicle plying on the road has not been considered to be a place so as to vitiate the proceedings of recovery under section 103, Cr.P.C.
8. Learned counsel for the appellant lastly submitted that there is no evidence on the conscious possession of the contraband articles by the accused. He relied on a case reported as Said Shah and 2 others v. The State PLD 1987 SC 288 and the decision of the Supreme Court reported as Ramzan and 3 others The State PLD 1992 SC 11, to prove the absence of conscious possession by the accused and so its benefit was to be given to the accused. But none of the two decisions apply to the facts of the case.
9. Each criminal case stands on its own footings. The' facts and circumstances in one case may not be quite similar, on all fours, to the other. There may be circumstances so as to give the benefit of doubt to the accused. But m the instant case, we are clear in our mind that the accused had full knowledge of the fact that the contraband articles and the arms and ammunitions were in the truck. 1n fact, his own statement that the narcotics belonged to Faizullah and were loaded by Amir Abdullah shows his complete knowledge about the matter coupled with his presence in the truck and conscious possession with full knowledge. His attempt to escape further fortifies it.
10. We, therefore, maintain the conviction under both counts and the sentences awarded by the learned Sessions Judge which call for no interference. The appeal is accordingly dismissed.
11. This Court had also issued notice for enhancement of sentence but in view of the fact that both the sentences have been ordered by the learned Sessions Judge to run consecutively, we feel it proper to discharge the notice of enhancement of sentence. Order accordingly.
12. Before parting with the judgment, we would like to observe that Am --Abdullah and Faizullah be arrested and a challan against them be submitted before the learned Sessions Judge, Mianwali, for trying them under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order IV of 1979, and Arms: Ordinance, 1965, according to law.