2005 PLP 1935 (MLD)

IJAZ-UL-HASSAN KHAN, J.

Appellants Muhammad Saeed and Raees Khan, both residents of Tapa Bazidkhel Naka Mela, Orakzai Agency, were tried by learned Judge, Special Court (CNS) Peshawar Camp Kohat, on the charge of trafficking 7 Kilo grams Charas on 7-11-2003 while travelling in passenger Bus No.DR-9799 bound for Karachi. At the conclusion of trial, vide judgment dated 25-4-2005, the appellants having been, found guilty, were convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and each one of them was sentenced to suffer three years R.I. and a fine of Rs.50,000 each or in default thereof to undergo further six months S.-I. each with benefit of section 382-B, Cr.P.C.

2. The relevant facts are, that on 7-11-2003 a raiding party comprising HC Murtaza Khan and others, supervised by Inspector Tajmin Ali, Police Station ANF Kohat had laid `Nakabandi' at Bannu Kohat Road near WAPDA Grid Station Lachi, for checking narcotic smuggling. In the meanwhile, at 1600 hours a passenger Bus No.DR-9799, coming from Kohat side was stopped. Two teapais (wooden tables) were found lying on the roof of the bus along with the luggage of other passengers. On asking by the ANF staff, two passengers sitting in the bus claimed ownership of the teapais. The said persons and the teapais were brought down. The search of the teapais led to recovery of Charas, concealed in the secret cavities of the teapais, It was weighed and found 4 kilo grams Charas `pukhta' and 3 kilo grams Charas `garda'. A small quantity i.e. 10 grams each was separated for chemical examination. The remaining was sealed into parcels. On inquiry, the accused disclosed their names as Raees Khan son of Gul Saleem and Muhammad Saeed son of Abdul Sattar, residents Tapa Bazidkhel Naka Mela Orakzai Agency. They were formally arrested and a case was registered against them under section 9(c) of the Control of Narcotic Substances Act, 1997.

3. After completion of investigation, challan was submitted against the accused in Court, to which they did not plead guilty and then the trial of the case commenced against the accused. During the trial, prosecution in order to prove its case, examined Umer Zaman (P.W.1), Conductor of the bus, A.S.-I. Masood Khan (P.W.2), Inspector Tajmin Ali Khan (P.W.3), HC Murtaza Khan (P.W.4) and Moharrir Manzoor Khan (P.W.5).

4. On the close of prosecution case, both the accused were examined under section 342, Cr.P.C., wherein they denied the prosecution allegations, professed innocence and claimed to have been falsely charged. They however, in their statements recorded under section 340(2), Cr.P.C. admitted that on 7-11-2003, they were on the way to Karachi to earn livelihood when the bus was stopped and they were apprehended and charged for trafficking the Charas in question. They stated that in fact another person was owner of the `teapais' but he was let off and instead the appellants were implicated in the case.

5. The learned trial Judge on overall assessment of the evidence on record pointed out that the prosecution was successful in proving the guilt of the appellants beyond any reasonable doubt. The appellants were convicted and sentenced as mentioned above.

6. Miss Neelam-A-Khan, Advocate, representing the appellants attempted to argue that learned trial Judge had not appreciated the material on record in its true perspective, which has resulted in manifest injustice; that mandatory requirements of section 103, Cr.P.C. had not been complied with as no independent and disinterested witness from the locality was associated with the recovery proceedings; that the complainant of the case being Investigating Officer also makes investigational exercise partisan, unilateral, partial and unreliable and that the sample has been dispatched to laboratory with delay, which is violative of the safeguard provided by law. The learned counsel maintained that in fact Umer Zaman, conductor of the bus had a hand in the affair but the appellants were made scapegoat and implicated in the case on account of their refusal to abide by the wishes of the ANF Officials. Concluding the arguments, she prayed that sentence awarded to the appellants is harsh and does not commensurate with the gravity of offence. She requested for reduction in the sentence.

7. As against that Mr. Sajid All, Advocate, appearing on behalf of ANF, controverted the arguments advanced by the learned counsel for the appellants, maintaining that the appeal is liable to be dismissed because the conviction was based on solid evidence and the minor discrepancies appearing in the prosecution evidence were insignificant and of no consequence. To substantiate the plea, he placed reliance on Muhammad Khan v. The State (1994 SCMR 1543).

8. Having considered the arguments and submissions of learned counsel for the parties in the light of the material on file, we are confident that huge quantity of Charas weighing 7 kilo grams has been recovered from the secret cavities of the `teapais' in question, owned by the appellants. The learned trial Court has discussed every aspect of the case with minute particulars against the appellants and after appraising the evidence has rightly convicted them. Discrepancies highlighted by the appellants' counsel are neither material nor substantial to dislodge the story of the prosecution. The prosecution witnesses have been absolutely consistent, coherent and resolutely withstood lengthy cross-examination. They seem to be independent witnesses having no reason to falsely implicate the appellants in this case. The defence has not been able to shatter their testimony or pinpoint any ill-will which may have been harboured by the said witnesses against the appellants. The learned trial Court was quite justified to place implicit reliance on their statements and make the same basis for conviction of the appellants.

9. The objection of the learned counsel regarding non-compliance of the provisions of section 103, Cr.P.C. is also misconceived, inasmuch as section 25 of .the Control of Narcotic Substances Act, 1997 specifically ousts the applicability of section 103, Cr.P.C. It needs no reiteration 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 official witnesses in any other circumstances. Testimony of a police official cannot be discarded only on the ground that he is a police official. Official witnesses are as good as private witnesses. In this context, there is a wealth of case-law on the point that police officials are competent witnesses to attest a recovery memo. There is consistent opinion of the superior Courts that police officials are competent witnesses of recovery memo. and thus, contention of the learned counsel would not cut much ice to absolve the appellants from the circumstances of recovery of Charas from their possession. Fida Jan v. The State (2001 SCMR 36).

10. The reports of the Chemical Examiner regarding the narcotics substances have further established on the record that this was Charas, as is the case of the prosecution.

11. The evidence of Moharrir Manzoor Khan (P.W.5) has established that the parcel of sample duly prepared for chemical test, was D kept by him in safe custody in Police Station `Malkhana' and thereafter sent to Laboratory on 10-11-2003 through constable Muhammad Hanif as a routine procedure. This has lent confidence to the reliability of these reports of the Expert. The reports Exh.P.W.3/6 and Exh.P.W.3/7 of the Chemical Examiner are to the effect that the samples sent for analysis were contraband Charas. There, thus, remains no doubt at all that the Charas in the above quantity were recovered on the above said date, time and place. The contention raised on behalf of the appellants that these reports of the Expert were not worth reliance, is misconceived.

12. As noticed above, the presence of the appellants in the bus and apprehension by the ANF officials has not been denied. Stance of the appellants is that they had no hand in the offence and that the Charas was planted. The submission of the appellants has not impressed us. The mere assertion of the appellants that they were falsely implicated in the case, without a positive attempt on their part to substantiate the same, is of no consequence. The story of the appellants, therefore, is not at all worthy of any belief and seems to have been fabricated in order to absolve them of the liability.

13. The learned counsel for the appellants half-heartedly contended that there were some, serious lapses in the process of the investigation which had vitiated the trial. She has not been able to point out any such defect in the investigation, other than certain minor lapses which do not affect the validity of the trial.

14. The argument of the learned counsel for the appellants that the complainant has combined in himself the duel function, which has materially prejudiced the interest of the appellants, is equally without force. There is no legal prohibition for a police officer to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer so long as it does not, in any way, prejudice the accused person. State through Advocate-General Sindh v. Bashir and others (PLD 1997 SC 408). As far as the question of sentence is concerned, we have noticed that the appellants have already been treated leniently and the sentence awarded to them is legal and proper. We do not feel inclined to interfere and reduce the same. The appeal is, accordingly, dismissed. H.B.T./522/P Appeal dismissed.