IJAZ AHMAD CHAUDHARY, J.--Through this appeal against the judgment dated 28-11-1998 passed by Additional Sessions Judge, Lahore, whereby the appellant has been found guilty of offence under sections 6/9 of Control of Narcotic Substances Act, 1997 and was sentenced to undergo R.I. for life. The benefit of section 382-B, Cr.P.C. has been given to the appellant.
2. This conviction of the appellant has been passed in case F.I.R. No,512 of 1997 registered on 29-9- 1997 on the complaint of Mubeen Sharif, (P.W.6) at Police Station, Sandha under the aforementioned offence. Brief allegations against the appellant as narrated in the F.I.R. are that on 29-9-1997 at about 12-45 noon, the appellant was apprehended at Bund Road, Gulshan-e-Ravi, Lahore while in possession 31 kilograms of Charas in 25 packets by the police party headed by Mubeen Sharif, P.W.6. Ten grams Charas was separated from each packets and sealed for the purpose of sending them to the Chemical Examiner. After completion of the investigation the challan was submitted in the Court. The charge was framed against the appellant under sections 6/9 of Control Narcotic Substances Act. 1997 and under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. The appellant denied the allegations and claimed to be tried.
3. The prosecution in order to prove the guilt of the appellant produced six witnesses. P.W .1. Mustafa Hussain, S.I., Police Station Sanda, Lahore received the complaint written by Mubeen Sharif, S.I.
Exh.PA and he recorded formal F.I.R., Exh.PA/1 Abdul Ghafoor, A.S.I. appeared as P.W.2, who was member of the raiding party. He stated that he received secret information that a Pathan would come in Abu Bakar Street alongwith intoxicant material on, which a raiding party was constituted, and road was blocked. According to him the appellant was apprehended and from his possession 31 kilograms of Chards in the shape of 25 packets was recovered, which was taken into possession vide memo. Exh.PB. The other witness, who had witnessed the recovery of Charas from the appellant is Faiz Muhammad, Head Constable, P.W.5, and also attested the recovery memo. He supported the prosecution and his statement is in line with the statement of P.W.2. P.W.6, Mubeen Sharif, is complainant of the case. After completion of the prosecution evidence, the statement of appellant was recorded under section 342, Cr.P.C., in which he denied the allegation and in answer the question that why the case was against him he stated as follows:-- "In fact one Muhammad Khan Pathan by caste was arrested by the Police and recovery of Charas was effected from him. In fact I was at Faisalabad on the said date. I was brought from Faisalabad., The police let off said Muhammad Khan after receiving illegal gratification and planted this bogus recovery upon me."
He also produced in his defence D.W.1, Muhammad Aleem and D.W.2 Tariq Mahmood, who supported the appellant and stated that the appellant was innocent. After conclusion of the trial and hearing the parties, the learned trial Judge has passed the impugned judgment, which is assailed through this appeal.
4. The learned counsel for appellant contends that Mubeen Shafif, P.W.6, is complainant and Investigating Officer, but the complainant could not be Investigating Officer as one cannot be judge of his own cause and in this very way prejudice has been caused to the appellant thus the appellant is liable to be acquitted on this score alone. It is further contended that no public witnesses were joined in the recovery proceeding by the complainant/Investigating Officer, which is fatal to the prosecution case as the appellant according to the case of Police was apprehended in day light and public witnesses had gathered there, but were not joined in the investigation, and police witnesses in such like circumstances cannot be termed as independent witnesses. It is further contended that the passengers, driver and conductor of the bus, from where the appellant had come to the place of occurrence were not joined during the investigation by the police. It is further contended that the recovered Charas has not been produced in the Court, hence it is a case of acquittal relying upon 1997 PCr.LJ 225 and 2001 PCr.L.I 1401. It is further contended that prosecution has miserably failed to prove the guilt of the accused, and there are contradictions and discrepancies in the statements of recovery witnesses and the statement of Mubeen Sharif, P.W.6, hence it is case in which the prosecution has not succeeded, in proving its case and sufficient doubt has been created.
5. On the other hand, the learned counsel appearing on behalf of the State has opposed this appeal on the ground that the F.I.R. has been lodged with promptitude; the appellant was apprehended red handed; there is no chance of misidentity of the appellant; no illegality or material irregularity has been committed during the trial and the investigation; there is no enmity or grudge to falsely implicate the appellant in this case and lastly that the prosecution has succeeded in making out a case against the appellant; hence the sentence may be maintained as already a lenient view has been taken in this case.
6. We have heard the learned counsel for parties and have gone through the record with due care and caution P.W.2, Abdul Ghafoor, has specifically stated that he was member of the raiding party and the appellant was apprehended at about 11-00 a.m. on caution of the informer, who was holding a bag. which was checked and Charas weighing 31 kilograms in shape of 25 packets was recovered from the bag. Mubeen Sharif, S.I. took 10 grams of said Charas from each packet and sealed them into parcel for onward transmission to the office of Chemical Examiner for analysis. He further stated that the Charas was sealed and produced in the Court, which is Exh. P1 and recovery memo. is Exh.PB. His statement is fully supported by Faiz Muhammad, Head Constable, P.W.3, another member of raiding party. Both the witnesses were subjected to lengthy cross-examination, but nothing could be gained by' the defence from them. During cross-examination P.W.5 has stated that many persons had gathered at the time of arrest of the accused. They were about 25 in number. Mubeen Sharif, P.W.6, asked 5/6 persons to join in the recovery proceeding, but, they flatly refused to do so. Similar statement has been made by Mubeen Sharif, P.W.6, .when was cross- examined that he asked 5/6 persons to associate the recovery proceedings, but they refused to do so. All the three witnesses are consistent on material points and are in line with each other on every material point regarding date, time of apprehension of appellant, place of occurrence, constitution of raiding party, recovery of 25 packets weighing 31 kilograms of Charas. We have not been able to find any discrepancy in their statement. We do not find any reason for disbelieving the statements of these witnesses qua the involvement of appellant in this case. It has been established on record beyond reasonable doubt that the appellant on the day and the time of occurrence had been apprehended, who is resident of District Abbottabad and was in possession of the above said quantity of Charas. The defence though cross-examined the prosecution witnesses at length but nothing could be gained by it. No enmity or grudge has been shown to falsely implicate the appellant by these witnesses in such - unanimous depositions. There is no reason to plant such a huge quantity of Charas upon the appellant. Even the appellant in his statement has failed to show any reason for his presence at the spot at the time of occurrence. He was resident of Abbottabad and has made a vague statement that he has been involved in this case in place of Muhammad Khan Pathan. The Charas was sent to the Office of Chemical Examiner and the report of Chemical Examiner is positive that 10 grams of Charas separated from each packet contained Charas. In .circumstances, the prosecution evidence is sufficient to connect the appellant with the commission of crime. So far as the contention of learned counsel for appellant that the complainant cannot be Investigating Officer has no force. The appellant was apprehended at the spot by the raiding party. The complainant had already sent the complaint in writing to the police station for registration of the case and the recovery was effected at the spot and whole investigation was conducted thereat. The purpose of investigation is to collect evidence as is crystal clear from the bare perusal of section 4 of the Criminal Procedure Code, which is reproduced hereunder: "(I) Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf."
Hence Mubeen Sharif, P.W.6, has performed his duty by apprehending the appellant and by preparing the recovery memo. and has not committed any illegality. This contention of the petitioner is not a ground for vitiating the trial as the proceedings by the Police Officer cannot be called in question. Section 156(2) of Cr.P.C. is complete answer to the contention of the learned counsel for appellant. This provision states that the Police Officer cannot be asked at the stage of trial that he was not empowered to investigate the matter. We are fortified by the finding of august Supreme Court in case reported as PLD 1997 SC 408, that trial cannot be vitiated on the ground that the Police Officer was not competent to investigate the case, unless some prejudice is shown to have been caused to the accused by the investigation of such an officer. The appellant in this case has failed to prove that some prejudice has been caused to him by inimical attitude of P.W.6 who was otherwise fully competent to make complaint and to investigate the case. The case law cited by the learned counsel for appellant that the case property was not produced is inapplicable to the facts of this case as 31 kilograms of Charas has been exhibited by the Court Exh.P1 through recovery memo. Exh.PB. Non-marking of each packet of Charas may be an irregularity which cannot vitiate the trial in any manner. The learned counsel for a appellant has failed to show any reason for interference by this Court in the impugned judgment, which is otherwise based on evidence on record and is sustainable under the law. The last contention of the learned counsel for appellant is for reduction of sentence. Huge quantity of Charas was recovered from the appellant.
The offence is punishable with death. Already lenient view has been taken by the trial, Court. We find no ground for reduction of sentence. This appeal has no merit. It is, therefore, dismissed.