' FAZAL ILAHI KHAN, C.J.--- Mushki Alam and two others, residents of Kastair Banda Tehsil Takht-e- Nasrati, District Karak, found guilty of offence under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to above as the Prohibition Order), convicted and sentenced by the learned trial Judge, Karak vide judgment, dated 14-6-2001, have challenged their conviction and sentences before this Court through this appeal.
2. It is the prosecution case that on 23-5-1996 Pir Nawaz Khan, S.H.O. Was proceeding for investigation of case F.I.R. No,142, dated 23-5-1996 under sections 324/429/426/148/149, Pakistan Penal Code of Police Station Takht-e-Nasrati, he got a secret information that three persons were proceeding in Sarki Lawaghar Algada with bags full of narcotics. Believing such information to be correct he with the police party including Mahmood Khan, A.S.-I., Mir Atlas, Muhammad Kamal, H.Cs., Izzat Noor F.C. And other constables about 10 in number, at about 16-00 hours proceeded towards Algada. On reaching near Algada they cited three persons carrying bags on their shoulders. As soon as they saw the police party approaching towards them they tried to tied away but they were overpowered, who disclosed their names as Hayatullah son of Mushki Alam, Mushki Alam and Faiz Talab sons of Khan Mast. They took into possession the bags, which the accused were carrying. In the plastic bag carried by Hayatullah accused contained opium weighing 25 kilograms, in the bag carried by Mushki Alam 20 kilograms opium was found while from the bag recovered from the possession of Faiz Talab accused 10 kilograms of Charas was recovered. Four grams substance was separated from the contents of each, sealed into separate parcels for chemical examination. The accused were arrested and a Murasila was drafted and sent to Police Station Takht-e-Nasrati through Abdur Rashid I.H.C. No,372, for registration of the case. The S.H.O.
Took up the investigation and on its completion complete challan was put in Court against the accused. The accused were formally charged by the learned Sessions Judge, Karak under Articles 3/4 of the Prohibition Order, on 12-9-1998, to which they did not plead guilty and claim trial.
3. The prosecution in support of its case examined Anar Badshah, I.H.C. No,275 (P.W.1), Pir Nawaz Khan, retired S.-I., then S.H.O. Police Station Takht-e-Nasrati (P.W.2), Mir Atlas M.H.C., Police Station Takht-e-Nasrati (P.W.3) and thereafter closed its evidence. The accused were examined under section 342, Criminal Procedure Code. They denied the allegations of the prosecution witnesses and the recovery of the narcotics from their possession at Algada Pani Barani Sarki Lawaghar. In reply to a question as to why the P.Ws. Have deposed against him, Mushki Alam accused stated that one Dangay of Village Karak was murdered whose dead body was recovered near his house.
During investigation of that case Pir Nawaz Khan, S.H.O. Pressed him to give evidence against the accused of that case but he refused, as he had not seen the occurrence, on which the S.H.O.
Annoyed and falsely involved him in the present case. In reply to another question he stated that he was innocent and falsely charged and that on 23-5-1996 he alongwith Faiz Talab and Hayatullah had come to the house of Nawab Khan of Village Sarki Lawaghar after 5-00 p.m. In connection with some private work with him. In the meantime the police came to the Hujra of said Nawab Khan. The Investigating Officer asked him and his co-accused to accompany him to the police station. They accompanied the police party to the police where they were involved in the present case though in fact nothing had been recovered from their possession. He wanted to make statement on oath in rebuttal of the prosecution case and further to produce evidence in his defence. Faiz Talab and Hayatullah after having denied the allegation against them, made similar statements, Faiz Talab, accused/appellant made statement on oath under section 340(2), Criminal Procedure Code, in which he reiterated the contents of his statement made under section 342, Criminal Procedure Code. In cross-examination he deposed that Mushki Alam, his co-accused, is his real brother and Hayatullah is his nephew. He further stated that the Investigating Officer and Mahmood Khan .Both are the residents of village Rahmat Abad. He admitted that he had no enmity with P.W. Pir Nawaz and P.W. Mahmood Khan except the fact that the Investigating Officer was annoyed with him because of the case of Dangay. He further stated that he did not know the contingent of the police party at the. Time of his arrest. He further deposed that he and his co- accused reside within the jurisdiction of Police Station Shah Salim at a distance of about 15 kilomteres from the house of Nawab Khan. When suggested to him the accused did not admit that during those days Pir Nawaz Khan was Incharge of Police Station Latambar. He admitted that Nawab Khan was his friend and Noor Shah Din, etc. Are his relatives. He denied recovery of the narcotics from his possession. Nawab Khan appeared as D.W.2 and supported the accused that they had come to his Hujra for demanding the hands of his daughter for the son of Mushki Alam.
That at his request they were stayed for the night when at about 3-00 p.m. The police party came to his Hujra. At that time Noor Shah Din, Mir Paio Khan, Gul Zareef, Mir Ghazi Khan and the accused were present there. The police party directed the accused to accompany them to the police station, accordingly all the three accused facing trial accompanied the S.H.O. And boarded the Datsun which the police had parked at some distance from Algada and took the accused to Police Station Takht-e-Nasrati. Later on he came to know that the accused had been involved in narcotics case against which he submitted an application in the shape of an affidavit to the higher authorities that the accused were innocent. A photocopy of the same is Exh.D.W.2/1. In his cross- examination the witness deposed that D.W. Noor Shah Din is his nephew and Mir Paio and others reside in his neighbourhood. He further stated in his cross-examination that he had five daughters of whom four are married. He further stated that the accused reside within the jurisdiction of Police Station Shah Salim. He admitted that he has not yet married his daughter to the son of Mushki Alam. He also admitted that he resides in the jurisdiction of Police Station Takht-e-Nasrati. He also admitted that Mir Nawaz, S.H.O. Is the resident of Rahmat Abad. He denied that because of his friendship with Mushki Alam he has falsely deposed.
4. The learned trial Court on appraisal of the prosecution evidence found Hayatullah and Mushki Alam guilty of carrying opium in plastic bags weighing 25 and 20 kilograms respectively and Faiz Talab of carrying Charas weighing 10 kilograms. However, as the record for an offence under Article 3 of the said Order was found silent, therefore, the offence committed by the accused was held to have been proved against them under Article 4 of the Prohibition Order. Accordingly Hayatullah was convicted and sentenced to suffer fourteen (14) years rigorous imprisonment with 10 stripes and to pay a fine of Rs,10,000 in default of payment of fine to further suffer one year's simple imprisonment. Mushki Alam, was convicted and sentenced to undergo 10 years' rigorous imprisonment with 7 stripes and a fine of Rs,8,000 or in default of payment of fine to undergo further six months' simple imprisonment. Accused Faiz Talab on conviction was sentenced to two years' rigorous imprisonment, with five stripes and to pay a fine of Rs,4,000, or in default of payment of fine to suffer three months' simple imprisonment.
5. It was contended by the learned counsel for the appellants that the contraband was planted by Pir Nawaz, S.H.O. (P.W.2) on the accused as he was on inimical terms with the accused Faiz Talab.
According to the learned counsel Mst. Reshmeena, wife of accused Faiz Talab was cited as a witness by the Investigating Officer in a murder case vide F.I.R. No,240, dated 5-11-1993 under sections 364/302/34, Pakistan Penal Code of Police Station Karak as the dead body of the deceased found buried near the house of Faiz Talab but Mst. Reshmeena, however, refused to depose as an eye-witness against the accused of that case. Pir Nawaz, Investigating Officer who was then S.H.O., resident of the same area to which Dangay deceased belonged. The S.H.O. Due to such annoyance had a chance to involve him, his brother and his nephew in this case. It was further contended that Pir Nawaz Khan is a complainant as well as Investigating Officer, therefore, the entire proceedings is liable to be quashed. He further contended that no person from the public was associated with the so-called recoveries of the narcotics from the possession of the accused.
That the defence evidence especially the statement of Nawab Khan from whose Hujra the accused were arrested, has shattered the entire prosecution case. That the prosecution case, that the police arrested the accused from Algada with the huge quantity of contraband, does not appeal to reasons.
6. After hearing the learned counsel for the appellants and the learned Deputy Advocate-General for the State, I find no substance in the contentions raised. Pir Nawaz Khan, S.H.O. Has given a natural version of the occurrence. He has stated that while proceeding to conduct investigation in case F.I.R. No,142, he got an information regarding the trafficking of intoxicant by some person through Serki Lawaghar Algada he, therefore, alongwith the police party proceeded towards that direction where they came across the three persons carrying bags on their shoulders in the Algada. Noticing the arrival of the police party the accused tried to decamp from the spot but were apprehended with huge quantity of narcotics. He drafted a Murasila and sent it to the police station for registration of the case. The substance recovered from each one of the accused was taken into possession and sample taken from it subjected to chemical examination. The report of the Chemical Examiner, which is available on the record, is in the positive. The witness was thoroughly cross-examined and the trend of cross-examination is that the accused did not deny recovery of the narcotics at the place of occurrence but that it was thrown on the spot by some unknown persons: The witness stated as under:-- "It is correct that the accused are the residents of village Kashtir Banda. It is incorrect to suggest that the contraband were not recovered from possession of the accused. It is further incorrect to suggest that the contraband was thrown by some unknown culprits. It is also incorrect to suggest that I have falsely roped in the accused in this case."
' As far as the plea of the accused that the Investigating Office was inimical towards them is concerned, they have led emphasis on the fact that one Dangay Khan of Karak was murdered whose dead body was buried in the vicinity of Kashtir Banda near the house of Mushki Alam. He denied the suggestion that the accused facing trial were wanted by him to appear as P. Ws. In the said case and as they had refused to depose as such which resulted into an altercation between him and the accused.
' This was merely a suggestion, which the Investigating Officer denied. The defence did not produce any evidence in this regard. As such the credibility of the witness has not been shattered. Moreso, no relationship between the P.Ws. And Dangay deceased is pointed out. It is also not proved that he was the Investigating Officer in the case of Dangay Khan. Subsequently, plantation of narcotics by the Investigating Officer on the accused at the place of occurrence on such a flimsy ground is highly improbable and it does not appeal to common sense. The statement of Pir Nawaz Khan, S.H.O. Is further supported by Mir Atlas, M.H.C. (P.W.3) as far narration of facts is concerned. He denied the suggestion that the accused were arrested from the house of Nawab Khan of Village Serki Lawaghar and not from the spot. When questioned, the witness denied that some unknown persons threw the contrabands at the spot and that the accused have been falsely involved in the case. Even the accused in their statements under section 342, Criminal Procedure Code after pleading their innocence and explaining their presence at the Hujra of Nawaz Khan at the initial stage had stated that they had some private work with Nawab Khan, which .They did not properly explained, but later they stated that they had gone to the Hujra of Nawab Khan to demand the hands of his daughter for the son of Mushki Alam and on the request of Nawab Khan they decided to stay for the night. Nawab Khan has stated that on arrival of the police to his Hujra Noor Shah Din, Mir Paio Khan, Gul Zareef, Mir Ghazi Khan were also present with the accused and that in their presence the accused were asked to accompany the police to the police station. Strangely enough being the owner of the Hujra and on friendly terms with the accused fie did not bother to question police party as to in what connection those persons were required in the police station. He also did not accompany them when the police was taking the accused alongwith them. As such the conduct of the D.W. Makes his statement unreliable. In spite of his close friendship with the accused he did not visit the police station to depose that the accused were innocent. For the first time he makes his appearance in the proceeding when the investigation was completed and the entire prosecution evidence was concluded at the trial. The D.W. Has referred to a photocopy of an affidavit which has been placed on file in defence to show that he alongwith other persons had submitted application in the shape of an affidavit to the higher authorities in this regard, however, no reliance can be placed on a photo copy, the original of which has not been traced nor the same having been proved according to law. All this appear to be an afterthought. The stamp paper on which the alleged affidavit is scribed has no endorsement of the stamp vendor and the date on which it was purchased. No other disinterested persons appeared to support the defence plea.
7. Undoubtedly for safe dispensation of justice when Nakabandi is arranged after getting prior information to apprehend the smuggler/ trafficker, it is required to associate disinterested and preferably persons of the locality but non-observation of such precaution by itself is not fatal to the prosecution case when on ground reality huge quantity of narcotics is recovered and there is no evidence to attribute any motive for false implication of the accused. Nothing has been brought on record, even after thorough cross-examining the prosecution witnesses to show motive for false charge or for substituting the accused for the real culprit.
8. For the reasons stated above, we feel that the learned trial Court has properly appraised the entire evidence and has correctly reached the conclusion that the prosecution was successful in proving its case against the accused beyond any reasonable doubt. This appeal, therefore, stands dismissed.