2002 P Cr (PLP)

2. Facts relevant for the disposal of this appeal are that P.W. Tajmin Ali who was then S.H.O. Police Station A.N.F., Kohat on receipt of an authentic information on 29‑1‑1997 that huge quantity of narcotics would be smuggled from Illaqa Ghair to the down country i.e. Punjab via Kohat in Truck No.PRB‑4231, constituted a raiding party comprising Group Leader Muhammad Iqbal Khan and others and held Nakabandi at Kohat ‑ Peshawar Road near Gulshan Ababd. In the meanwhile, Truck No.PRB‑4231 was sighted coming from towards Peshawar. The truck was intercepted and stopped for checking. Driver of the truck disclosed his name as Rahim Dad son of Sher Muhammad of District Dir. The truck was loaded with bricks. As there were no proper arrangement at the spot, the truck and its driver were brought to Police Station A.N.F.. Kohat. A thorough search of the truck led to recovery of raw opium and a bag containing Charas from its secret cavities. The opium and Charas were weighed and found 180 kilograms and 8 kilograms respectively. A small quantity was separated from the lot and sealed into parcel for the purpose of analysis. The remaining contraband were also sealed into parcel and separate recovery memos. were prepared in this respect. Driving licence, registration, truck permit and an identity card in the name of one Usman were taken into possession and sealed into a parcel. Driver of the truck was arrested and a case against him was registered vide F.I.R. No.3. dated 29‑1‑1993 under sections 6, 7, 8 and 9 of the Control of Narcotic Substances Act, 1997 Police Station A.N.F., Kohat.

3. At the trial the prosecution examined five witnesses and abandoned Abdul Raqib, M.H.C. as unnecessary.

4. S.H.O. Tajmin Ali i.e. P.W.4 appeared in Court and stated that on receipt of information a raiding party was constituted which held Nakabandi near Gulshan Abad, Peshawar and apprehended Truck No. PRB‑4231. On search the contraband in question were recovered from its secret cavities. A small quantity was separated and recovery memos. were prepared ,in this respect. .Resultantly the appellant was arrested and a case was registered against him. Muhammad lqbal Khan (P.W.1), Assistant Director (Enforcement A.N.F.), Peshawar stated that on completion of investigation he submitted complete challan in Court.

5. F.C. Munawar Hussain (P.W.5) stated that he is, marginal witness to recovery memos. vide which the contraband in question and driving licence and registration etc. of Truck No.PRB‑4231 were taken into possession. Younis Khan, Civil Judge/Judicial Magistrate, Mardan (P.W.3) stated that as per orders of the Special Court Judge, Kohat. dated 8‑4‑1997 he was present at the time of destruction of the contraband in case F.I.R. No.3, dated 29‑1‑1997 Police Station A.N.F., Kohat. Samples were separated from 180 kilograms opium and 8 kilograms Charas from each. The remaining were destroyed in his presence on 10‑4‑1997.

6. Muhammad Amin, District Registrar Registration Office, Buner (P. W .2) stated that the National Identity Card of Usman son of Sher Muhammad resident of Salam Bekay Police Station, Sheringan, District Dir bearing No.107‑85‑099947 was submitted to him for verification. He checked the record and found the same forged.

7. After completion of the prosecution evidence accused‑appellant was examined by the trial Court under section

342. Cr.P.C. wherein he denied the prosecution allegations and claimed to have been falsely charged. In answer to a question as to "what is your statement and why are you charged" he gave the following reply:‑‑ "On the day of occurrence the owner of the truck at the time 'Azan Wela' in the month of Ramzan came to my house in a Suzuki and told me that I be employed as a driver. Being jobless I was taken to his house and there a loaded truck of bricks was shown to me and being employed on the same day I was told by the said owner of the truck to drive the same truck to Hungo and he loaded there. The owner and the conductor were accompanied with me. On reaching near Gulshan Ababd Check Post, the truck was stopped for checking and with the connivance of the Narcotics Force the owner of the truck and the conductor namely Sher Azam made good escape from the spot and I was falsely implicated in this case. I am completely innocent and did not know about any contraband, if any, kept in the said truck." The accused‑appellant opted not to record statement on oath under section 340(2), Cr.P.C. nor produced any defence

8. At the conclusion of trial, after hearing the arguments of learned counsel for the parties with reference to the material on file, the learned trial Judge convicted and sentenced the accused‑appellant

9. Mr. Muhammad Amin Khattak, Advocate learned counsel for the appellant criticized the impugned judgment principally on the ground that the mandatory provisions of section 103, Cr.P.C. have not been complied with and no private inhabitant of the area has been associated to witness the recovery and only police officials have been cited as marginal witnesses to the recovery memo. which has made the recovery doubtful. He also contended that the appellant had no conscious knowledge regarding concealment of the contraband in the secret cavities of the truck and as such the responsibility could not have been placed at his shoulders. The learned counsel also maintained that report of the Chemical Examiner in this case is deficient in details and by. no means connect the appellant with the guilt. Additionally, he reiterated that complainant Tajmin Ali P.W. has combined in himself the functions of Investigating Officer as well as a witness which has prejudiced the interest of the appellant and thus, the impugned conviction and sentence cannot be allowed to remain intact. In support of his contentions, he placed reliance on Zahoor Ahmad Awan and another v. The State 1997 SCMR 543 and Khalid Sultan v. The State 1985 PCr.LJ 241.

10. Mr. Askar Afridi, Advocate, appearing on behalf of the State in response to the arguments addressed by learned counsel for the appellant, supported the impugned order of conviction and maintained that prosecution has successfully proved its case against the appellant and no ground has been made out for interference of this Court. He relied on State through Advocate‑General, Sindh v. Bashir and others PLD 1997 SC 408.

11. The case of the prosecution is that complainant Tajmin Ali P.W. pursuant to an authentic information constituted a raiding party comprising Muhammad Iqbal Khan and Muhammad Raza Khan, F.I.O. and others and made Nakabandi on Peshawar ‑ Kohat Road near Gulshan Abad Check Post. In the meanwhile Truck bearing No.PRB‑4231 was sighted coming from Peshawar side. The truck was stopped for checking. On inquiry driver of the truck introduced himself as Rahim Dad son of Sher Muhammad resident of Sheringal District Dir. The truck was loaded with bricks. Due to non‑availability of proper arrangement the truck and its driver were brought to Police Station A.N.F., Kohat. On thorough search opium weighing 180 kilograms and Chars 8 kilograms were recovered from its secret cavities. A small portion was separated for the purpose of sending the same to the office of Chemical Examiner for opinion and report. The recovery memos. were prepared to this effect duly witnessed by Raza Khan F.I.O. and constable Munawar Hussain Police Station A.N.F., Kohat. The driver of the truck i.e. Rahim Dad appellant was booked and a case was registered against him under sections 6, 7, 8 and 9 of the Control of Narcotic Substances Act, 1997, vide F.I.R. No.3, dated 29‑1‑1997 (Exh.P.A.).

12. It has been vehemently contended by learned counsel for the appellant that since prior information was stated to have been received by the complainant about the transportation of illicit narcotics, hence; it was obligatory on the part of the complainant to have had associated private persons to witness the proceedings and for want of any effort made in such behalf, case of the prosecution has become doubtful. According to the learned counsel provisions of section 103, Cr.P.C. were seriously violated on account of non‑association of private persons to witness the recovery. The learned counsel reiterated that the truck was apprehended A at a thickly populated place i.e. Gulshan Abad Check Post and services of independent witnesses could have been secured without any excuse. The submission of the learned counsel, is misconceived, firstly for the reason that the provisions of section 103, Cr.P.C. has been excluded under the provisions of section 25 of the Control of Narcotic Substances Act, 1997 and the provisions of section 20 of the Act are directory in nature, therefore, its non‑compliance cannot be considered as a strong ground for holding the trial of the appellant as bad in the eyes of law whereas on the other it is not denied that the main aim and object of enacting of section 103, Cr.P.C. is to ensure that the search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression. It never meant to disbelieve the statements of the B official witnesses under any circumstances. The official witnesses are as good as private witnesses. Fida Jan v. The State 2001 SCMR 36.

13. Learned counsel for the appellant also doubted the authenticity of report (Exh.P.E.) of the Chemical Examiner to Government of Punjab, Rawalpindi and stated that the same is deficient in particulars and does not show that the material sent was opium or Charas. The submission of the learned counsel has not impressed us. The report is complete in all respect and clearly indicates that the material sent was found opium and Charas.

14. Learned counsel for the appellant also contended that the narcotics were recovered from the secret cavities of the truck loaded with bricks and the appellant had no conscious knowledge of it. It was asserted that in the absence of mens rea the appellant could not be held guilty of the offence of smuggling narcotics. The learned counsel went on to say that owner and conductor of the truck were let off by the raiding party and‑ the appellant was made victim of circumstances on account of his inability to grease the palm of the police officials. The submission of the l learned counsel is not tenable. There is nothing on the file in support of l the plea taken by the appellant. The mere assertion of the appellant that he was totally unaware of the contraband lying in the truck, without all) positive attempt on his part to substantiate the same, is of no avail. It is difficult to believe that huge quantity of narcotics was concealed in the. truck and the driver remained ignorant of it. We are satisfied that the appellant was fully. aware and he had ,knowledge about the narcotics in question lying in the secret cavities of the truck.

15. It was also contended by learned counsel for the appellant that oni material particulars prosecution evidence is inconsistent, contradictory and doubtful, therefore, the same even in absence of defence evidence cannot result into conviction of appellant. This submission is also without IF force. Learned counsel has not been able to point out any discrepancy on flaw in the prosecution case so as to render the impugned judgment as not[ sustainable. Munawar Hussain and 2 others v. The State 1993 SCMR 7851 and Muhammad Farooq Afridi v. The State 2002 PCr.LJ 196.

16. In the last limb of arguments learned counsel for the appellants also submitted that investigation in this case has not been carried out fairly as the complainant has combined in himself the functions of r Investigating Officer as well as a witness which has seriously prejudiced the case of the appellant. The submission is misconceived. It has been held time and again by the apex Court that there is no legal prohibition for a police official to be a complainant, a witness to the commission of offence and also to be an Investigating Officer, so far as it does not prejudice the accused person. In the instant case no prejudice seems to r have been caused to the appellant and the mere fact that complainant has worn three hats simultaneously by itself provides no good ground to treat the investigation dishonest and improper.

17. Having regard to the facts and circumstances of the case we observe that prosecution has successfully proved its case against the appellant and on material particulars the prosecution evidence is consistent, confidence‑inspiring and not discrepant, creating dent in the case of prosecution. Again, nothing has been brought on record to suggest that appellant had no knowledge about the illicit substance and he G had no concern with it. It cannot be said or conceived that the raiding party would be having the capacity to manage or plant a huge quantity of narcotics owing to enmity of ill‑will against the accused. The defence plea put to the prosecution witnesses at the face of it appears to be highly misconceived and even improbable in the facts and circumstances of the case. Consequent to the above findings, it is held that the trial Court has rightly appreciated the evidence and has rightly convicted and sentenced the appellant to which no interference is required. The conviction and sentence awarded by the trial Court is maintained and the appeal stands dismissed. H.B.T./529/P Appeal dismissed.