2018 P Cr (PLP)

MUHAMMAD IQBAL MAHAR, J.

By means of instant appeal, the appellant has assailed the Judgment dated 08.09.2015 passed by learned Special Judge (Narcotics), Shaheed Benazirabad, in Special Narcotic Case No.34/2011, emanating from FIR No.01 of 2011, Police Station Excise Nawabshah Circle, whereby he was convicted for offence under section 9-C of C.N.S., Act, 1997 and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.100,000/- (Rupees one lac) and in case default thereof, to suffer S.I for one year more, however benefit of section 382-B, Cr.P.C. was extended to him.

2. The brief facts of the prosecution case are that on 13.01.2011, complainant AETO Altaf Hussain Kalhoro along with his subordinate staff left Excise Police Station in Police Mobile for detecting the crime and reached at Excise Check Post National Highway Road Sakrand near Mir Khan Leghari whereby they started checking. After some time they saw one Truck bearing No.C-8096 Banoon, coming from Sakrand side. They signalled the Truck and stopped it and found two persons sitting in it, they were got down from the Truck. The complainant in presence of EC Nisar Ahmed Bughio and EC Muhammad Sail enquired about their names. The driver disclosed his name as Muhammad Riaz (appellant) and from his personal search recovered Rs.2000/- and original CNIC while second person disclosed his name to be Bakht Rawan and from his personal search Rs.1000/- and original CNIC were recovered. The complainant also secured one bilty and original computerized registration book of the Truck from the dash board which was in the name of one Fateh Muhammad. On further enquiry about the load, driver Muhammad Riaz disclosed that oranges are loaded in the Truck. The complainant party took the search of Truck and found 120 colourful plastic bundles lying in secret cavity of the Truck, which were opened and charas weighing 120 kilograms was found in it. The complainant party recovered the charas, separated 200 grams from each bundle and sealed the same separately for sending to the chemical examiner. The complainant prepared such mashirnama in presence of EC Nisar Bughio and EC Muhammad Sail and brought the accused and property at PS and lodged FIR on behalf of the State.

3. After usual investigation, challan of the case was submitted against the accused before the competent court of law.

4. Learned trial court after completing legal formalities framed charge against the appellant and co-accused at Exh.8, to which they pleaded not guilty and claimed trial. The prosecution, in order to prove its case, examined P.W-1, Complainant A.E.T.O Altaf Hussain Kalhoro at Exh.11, who produced mashirnama of arrest and recovery, FIR, station diary entries, chemical examination report, verification letter of vehicle No.C-8096 at Ex.11/A to 11/D. PW-2 EC Nisar Ahmed Bughio at Exh.13. Thereafter, learned incharge D.P.P closed the prosecution side vide statement at Exh.14.

5. At the conclusion of the prosecution evidence, learned trial Court recorded statements of accused as required under section 342, Cr.P.C. at Exhs.15 and 16, wherein they denied the prosecution allegation and claimed their innocence, however, present appellant Muhammad Riaz examined himself on Oath as required under section 340(2), Cr.P.C. and pleaded that he was arrested from a hotel at Nawabshah and charas has been foisted upon them.

6. The learned trial court after hearing the learned counsel for the appellant and co-accused Bakht Rawat, learned DPP for the State and appraising the evidence, convicted the present appellant as mentioned above and acquitted co-accused Bakht Rawat.

7. Learned counsel for the appellant contended that the appellant is innocent and has falsely been involved in this case by the complainant; that no private mashir was associated in recovery proceedings which is violation of section 103, Cr.P.C.; that the owner of Truck was not arrested by the police; that the complainant has acted as investigating officer of his own FIR which is against the law; that the property was kept at PS for one night and thereafter it was sent to the Laboratory through PC Muhammad Azim Khoso but he was not examined before the trial Court, hence it cannot be said that the case property was in safe custody; that there are material contradictions in evidence of prosecution witnesses which have not been considered by the trial Court; that co-accused Bakht has been acquitted by trial Court hence same evidence cannot be relied upon against the appellant. He lastly concluded that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt hence he is entitled to be acquitted. In support of his arguments he relied upon case of Abdul Qadir v. The State (2015 PCr.LJ 235), Waqas Ali v. The State (2017 YLR 878), The State through Director ANF Peshawar v. Rashmali Khan and others (PLD 2016 Supreme Court 471) and Haji Muhammad Iqbal and 2 others v. The State (2016 MLD 1931).

8. Conversely, learned DDPP, while refuting the contentions of learned counsel for the appellant submitted that huge quantity of Charas, i.e. 120 kg was recovered from the secret cavity of the Truck which was being driven by the appellant. The property being expensive could not be foisted upon him. He further contended that official witnesses are good witnesses as other and there are no material contradictions in the evidence of prosecution witnesses. No doubt some minor contradictions have come on record due to lengthy cross-examination but same can be ignored. He, therefore, supported the impugned judgment.

9. We have heard the learned counsel for the appellant/accused, learned DDPP for the State and have perused the record.

10. It appears that the appellant/accused was arrested while he was in possession of Truck and from its secret cavity 120 kg Chars was recovered. Appellant was found sitting on driving seat of the Truck while co-accused Bakht was sitting with him. The prosecution examined complainant/AETO Altaf Hussain Kalhoro and mashir EPC Nisar Ahmed, both the witnesses have fully supported the prosecution case on material points and have categorically deposed that the appellant was arrested at Excise Check Post Sakrand and Charas was recovered from the secret cavity of the Truck. In order to strengthen the departure from EPS and arrival at EPS, the complainant produced attested copy of roznamcha entries at Ex.11-C. The witnesses further deposed that they separated 200 grams from each packet, sealed at place of incident and sent to Chemical Analyzer for examination and report. The complainant produced chemical report at Ex.11-D which shows that the parcels were received at Laboratory on 14.1.2011, the next day of the incident, in sealed condition and seals were perfect as per copy sent. As per result of the test, the packets were found containing Charas.

11. Adverting to the contention of learned counsel for the appellant/ accused that the complainant acted as investigating officer of his own FIR and that there is violation of section 103, Cr.P.C. that no private person was joined in recovery proceedings except officials. There appears no force in his contention as it has already been held by honourable Supreme Court in case of Zafar v. The State (2008 SCMR 1254) as under: "Police officer was not prohibited under the law to be a complainant if he was witness of an offence. Such officer could also be an investigating officer so long as it did not prejudice accused person" and that the "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."

12. Even otherwise the application of section 103, Cr.P.C. in narcotics cases has been excluded by section 25 of Control of Narcotic Substances Act, 1997, therefore, the contentions of appellants need no further comments.

13. The next contention of the learned counsel for the appellant was that the Charas was kept at PS for one night, hence it cannot be said that the same was in safe custody. It is iterated that as per chemical report the seals of the samples were perfect as per copy sent and no tampering was alleged, therefore it cannot be said that the property was not in safe custody.

14. Another contention of the learned counsel for the appellant was that case against the appellant is identical to that co-accused Bakht who has already been acquitted by the trial Court. It is necessary to mention here that the appellant was found sitting on driving seat and driving the Truck at the time of incident, hence he was incharge of the Truck, it was in his control and possession and he was the responsible for the same. In this respect we would like to place our reliance upon case of Kashif Amir v. The State (PLD 2010 Supreme Court 1052) wherein the honourable Supreme Court has held as under: "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 C.N.S.A. that the possession should be an exclusive one and cannot be joint one with two or more persons. Furthermore, when a person is driving the vehicle, he is incharge of the same and it would be under control and possession, hence, whatever articles lying in it would under his control and possession."

15. Furthermore, the appellant/accused is resident of Peshawar whereas the complainant and mashir are resident of Sakrand, the Province of Sindh, and no previous enmity or mala fide has been alleged by the appellant against the complainant and mashir. On the contrary the appellant in his cross-examination by DPP replied that "Prior to incident complainant AETO Altaf Hussain Kalhoro was not known to me, who has no enmity with me". The complainant and mashir have supported each other on material points and there is no major contradiction in their evidence, which create doubt in the prosecution case. The case law relied upon by the appellant/accused has no relevancy with the facts of instant case.

16. Apart from above the plea taken by the learned counsel for the appellant itself is self contradictory, which cannot be relied upon. For the sake of convenience we reproduce the relevant portions of the evidence. In cross-examination learned counsel for the appellant gave suggestion to mashir that "It is incorrect to suggest that the accused present in the Court are not same. It is incorrect to suggest that truck was already available at the spot and the present accused were alighted from another bus and involved in this case" whereas the appellant in his statement recorded under section 340(2), Cr.P.C. stated that "I was employee of Sufia Orient Security company as security Guard. I was arrested by Excise Police and involved in the present case. I am innocent. I have no concerned with alleged truck. Two days prior of incident I stayed at Nawabshah in a hotel. Excise Police has arrested me without any reason".

17. Keeping in view the above discussion and case law referred above, we are of the considered view that the prosecution has proved its case against the appellant beyond any shadow of doubt and the impugned judgment passed by learned trial Court does not suffer from any infirmity, hence the same is maintained. Consequently the instant Appeal No.D-104/2015 being devoid of merits was dismissed by our short order dated 20.12.2017 and these are reasons for the same. JK/M-54/Sindh Appeal dismisse