2008 PLP 314 (MLD)

ARSHAD NOOR KHAN, J.

This appeal has been directed against the judgment, dated 29-9-2006, passed by the learned Special Judge Narcotic, Jamshoro at Kotri, whereby the appellant has been convicted under section-9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred to as "Act of 1997") to suffer 10 years' rigorous imprisonment and fine of Rs.5,00,000 and in default in payment of fine he shall suffer further rigorous imprisonment for two years.

2. The facts giving rise to the present appeal in brief are that on 15-10-2004, the complainant Mir Badshah Inspector ANF received spy information that a person having a sufficient quantity of Charas is available near Railway Crossing Kotri at Khuda Ki Basti Road. On such information the complainant along with his subordinate staff, after recording entry in daily Roznamcha proceeded to the pointed place near Madresah Arabia Qassimul Uloom. Bhitai Colony; Khuda Ki Basti and found a person available there having a carton duly wrapped with gunny rope, who on the pointation of spy was apprehended and the complainant requested to the persons collected there at that time to act as mashir, but no one inclined to act as mashir, as such the complainant in presence of Muhammad Fareed ASIP and PC Rahim Bux arrested the said persons, who disclosed his name as Abdul Majeed son of Muhammad Khan resident of Khuda Ki Basti, Kotri District Dadu and secured such carton from him and on search of the said carton, secured five packets whereon "presidentte kahavi" was written, and every packet contained Charas in the shape of Cake being one kilogram each. The complainant separated 10 grams of Charas from each of the packet. for Chemical analysis and sealed the said samples separately and also sealed the remaining packets of Charas separately and arrested the accused and conducted his personal search and secured Rs.160 from front pocket of his shirt, prepared such mashirnama and returned to the Police Station along with the accused and the case property and lodged the F.I.R. He also conducted the. investigation and after usual investigation challan was sent in Court against the accused to stand trial.

3. The learned trial Court after compliance of section 265(c), Cr.P.C., framed the charge against the accused on 27-3-2006 under section 9(c) of Act, 1997 to which he pleaded not guilty and claimed trial. After framing the charge the prosecution examined P.W. Mir Badshah Inspector ANF vide Exh.6, who produced Roznamcha entry vide Exh.7, mashirnama of arrest of accused and recovery as Exh.B, copy of Chemical Examiner report as Exh.10, P.W.2 ASIP Muhammad Fareed was examined vide Exh.11. The prosecution closed its side vide statement Exh.12.

4. The statement of the accused was recorded under section 342(1), Cr.P.C. wherein he denied to have committed the present offence. He was also confronted by the learned trial Court with the necessary evidence available on record against him. He simply denied the allegations of the prosecution. He claimed to be innocent. He examined himself on oath under section 340(2), Cr.P.C. vide Exh.14 and also examined D.W. Muhammad Ismail vide Exh.15 in his defence and closed his side vide statement Exh.16.

5. The learned trial Court after hearing of learned counsel for the parties convicted and sentenced the appellant as stated above. The appellant being highly aggrieved and dissatisfied with his conviction has preferred this appeal.

6. We have heard Mr. Nandan A. Kellah, learned counsel for the appellant and Mr. Muhammad Iqbal Kalhoro, Special Prosecutor ANF for the respondent.

7. Learned counsel for the Appellant vehemently contended that Mir Badshah Inspector acted as complainant and Investigating Officer at the same time, which is illegal as no one could act as a Judge of his own cause and in the present case he being complainant could not investigate the matter, as such grave illegality has been committed by the prosecution, which could not be cured at this stage. He further contended that the whole quantity of Charas has not been sent to the Chemical Examiner and only the samples have been sent to the Chemical Examiner, which again is an illegality, as there is no report about the remaining quantity of the alleged Charas, which has not been sent to the Chemical Examiner, as such remaining quantity could not be treated as Charas. He further contended that no independent mashir of the locality has been picked up by the prosecution at the time of arrest of the accused and recovery of Charas, which is grave illegality and violation of section 103, Cr.P.C. He further contended that there is enmity in between the accused and one relative of the complainant as such the complainant has falsely implicated the accused in the present case. According to him there are major discrepancies in the evidence of the prosecution witnesses which discrepancies adversely reflects on the case of prosecution, as such the case of the prosecution is not free from doubt and the learned 'trial Court was not justified to convict him and the judgment passed by the learned trial Court may be set aside and the accused may be acquitted from the charge. In support of his contention he has relied upon the case of Bashir v. The State reported in 2003 MLD 259.

8. Mr. Muhammad Iqbal Kalhoro, Special Prosecutor ANF vehemently controverted the contentions advanced by the learned counsel for the appellant and has contended that the recovery of huge quantity of Charas from the appellant has been established through the evidence available on record and no material dent has been inflicted in the testimony of the prosecution witnesses in their cross-examination, as the minor contradictions in the statements of the prosecution witnesses are of no consequences for the reason that their evidence was recorded after 22 months of the incident and some minor contradictions are humanly possible, according to him the evidence available on record is confidence inspiring and no mala fide has been alleged against the prosecution witnesses, nor the enmity as alleged has been substantiated through independent evidence by the appellant, as such the judgment passed by the learned trial Court requires no interference.

9. We have considered the arguments advanced by the learned counsel for the parties and have gone through the entire evidence available on record as well as the case-law.

10. It has been vehemently contended by learned counsel for the appellant that Mir Badshah Inspector who is the complainant of the present case could not act as Investigating Officer at the same time as no one could be Judge of his own cause. The contention seems not be reasonable and plausible as there is no law' by which any restriction has been imposed on the police officer not to act as complainant and Investigating Officer at the same time. In fact there is no embargo on any police officer in whose presence an offence has been committed, to act as Investigating Officer. The said point also came for consideration before Honourable Supreme Court in the case of The State v. Bashir reported in PLD 1997 Supreme Court 408, wherein the Honourable Supreme Court was pleased to observed that 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 case, prejudice the accused person. The dictum laid down by the Honourable Supreme Court in the case State v. Bashir, Supra, is usefully quoted hereinbelow for the sake of convenience:-- "I agree with Ajmal Mian, J. that we are unable to subscribe the said broad legal proposition and that 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."

11. The dictum laid down by the Honourable Supreme Court is the complete answer to the arguments advanced by the appellant's counsel.

12. It has further been argued by the learned counsel for the appellant that only samples from each of the packet were sent to the Chemical Examiner for analysis instead of the whole quantity of the Charas, as such the quantity of the Charas, which was not sent to the Chemical Examiner, could not be treated as charas recovered from the appellant, which is material dent in the prosecution case. The contention seems not to be attractive for the reason that there are hosts of the authorities on this aspect of the matter by the superior Courts that the whole quantity of the narcotic substance could not be sent to the Chemical Examiner for analysis and the sample sent to the Chemical Examiner are sufficient and, in cases if the report of the Chemical Examiner is positive the whole quantity of the narcotic substance may be treated as the contraband or the narcotic secured from the accused.

13. The contention of the learned counsel for the appellant that no independent mashirs were picked up at the alleged time of the arrest of accused and recovery of Charas, though the witnesses of the locality were available at the time of arrest of accused and recovery is also devoid of any force. The contention advanced by the learned counsel for the appellant is self-explanatory, which shows the arrest of the accused and recovery in presence of the persons of locality, but has objected the arrest of accused and recovery on the ground that the persons of that locality have not been picked up as mashirs. The mashirnama of arrest of accused and recovery of charas (Exh.B), which was prepared at the spot, speaks that at the time of arrest of the accused the persons who were collected there were asked to act as mashir but they did not incline to act as mashirs. In F.I.R. also it is stated that the persons of the locality refused to act as mashirs in spite of request by complainant. Same is the assertion made by the prosecution witnesses in their evidence before learned trial Court, which shows that the complainant tried to pick up the mashirs from the locality to witness the arrest and recovery but because of the refusal of the persons of the locality he requested to his subordinates to act as mashirs. Section 103, Cr.P.C. has two fold aspects. According to section 103, Cr.P.C. the presence of the respectable persons of the locality is mandatory requirement, in case, if the search of the property is conducted by the police and, in case, if the respectable persons of the locality have not been picked up for the purpose of search of the property, there may be a material dent in the case of prosecution. In the case of arrest of the accused and the recovery from the public place, the availability of the persons of the locality is not the mandatory requirement of section 103, Cr.P.C. and even the police officials who have no mala fide against the accused and bore no enmity, may act as mashir and their evidence may be treated as good as evidence of any other independent witness could be subject to their cross-examination. In the present case the complainant who arrested the accused and recovered five kilogram of Charas from him has substantiated the arrest of accused and recovery of the huge quantity of charas from him, in his evidence before the Trial Court and in his cross-examination it has not been suggested to him that he possess any enmity against the accused to implicate him in the false case. The appellant has also not alleged any enmity in between him and the accused so as to say that the complainant has any enmity with him to implicate him falsely in the present cease. Simultaneously P.W.2 Muhammad Fareed ASIP has fully supported the arrest of accused and recovery and in his cross-examination also the arrest of accused and recovery has not been disproved in any manner, nor any mala fide or enmity has been pleaded against him. Both these prosecution witnesses have been cross-examined at great length but the arrest of accused and recovery of huge quantity of Charas has not been disproved in their lengthy cross-examination conducted by the defence counsel. The learned counsel for the appellant in order to substantiate his plea that the complainant bore grudge with the appellant has pointed out the suggestion in cross-examination of the complainant that the accused was arrested from his house in presence of his brothers Abdul Hameed, Abdul Rasheed, Abdul Fatah, Noor Ahmed and others to which he replied in negative. The said suggestion in cross-examination shows that the arrest of the accused is not disputed but allegedly he was arrested in presence of these witnesses, but these witnesses have not been examined by him in his defence in order to prove that he was arrested from his house in presence of these witnesses. Non-examination of these witnesses therefore adversely reflects on the plea taken by the learned counsel for the appellant that he was arrested from his house. The scope of section 103, Cr.P.C. has also been considered by the Honourable Supreme Court in the case of State v. Bashir, Supra, wherein the Honourable Supreme Court was also pleased to observe that the evidence of the police official could not be discarded provided they had tested the assessment of truthfulness. We have no justification to disbelieve the evidence of prosecution witnesses about arrest of accused and recovery of Charas from him. The learned trial Court has also considered the whole evidence on this aspect of the matter and has rightly analyse the evidence while convicting the accused.

14. The presence of the accused at the time of his arrest has not been disputed, nor the recovery of huge quantity of charas has been disproved through any independent evidence led by the appellant. The report of Chemical Examiner also affirms that substance which was sent to him for chemical analysis was charas, as such the substance of narcotic sent to him for analysis has been proved to be charas, which report of the Chemical Examiner has also not been controverted by the defence side.

15. The learned counsel for the appellant has vehemently contended that in cross-examination the complainant has stated that each packet of charas contained four slabs, whereas in F.I.R. and mashirnama of arrest of accused and recovery the charas in the shape of cake has been alleged, which is material dent in the case of prosecution, but in our humble opinion the said contradiction is not of much significance so as to brushed aside the whole quantity of the charas secured from the accused. Admittedly the prosecution witnesses were examined after lapse of about 22 months and with such span of period certain minor or trivial contradiction in their testimony are humanly possible, which could not be reflected on the whole testimony regarding arrest of the accused and recovery which otherwise has been proved satisfactorily.

16. The defence evidence brought on record by the appellant does not inspire confident, even otherwise, in case, if two stories are considered by the Court in juxtaposition with each other and one amongst them prove satisfactory the other story automatically proves false, from this angle also the defence evidence is not convincing and reliable.

17. After appraisal of whole evidence available on record we are of the firm opinion that the prosecution has succeeded in bringing the guilt of the accused at home and no illegality or irregularity on the face of record is available so as to interfere with the judgment passed by the learned trial Court. The case-law relied upon by the learned counsel for the' appellant in our humble opinion, is distinguishable from the circumstances of the present case and is not applicable. The appeal has therefore, no substance. The appeal was dismissed by a short order in the morning for the reasons to be recorded later on and these are the reasons. H.B.T./A-135/K Appeal dismissed.