2017 P Cr (PLP)

ABDUL RASOOL MEMON, J.

Appellants Ghulam Dastagir and Khayal Muhammad have preferred this Criminal Appeal against the Judgment dated 28.4.2016 passed by the Special Judge for CNS/ Sessions Judge Naushahro Feroze, whereby they were convicted under section 9(c), Control of Narcotic Substances Act, 1997 and were awarded sentence to suffer R.I. for imprisonment for life and to pay fine of Rs.100,000/- (one lac only) each, in default thereof S.I for one year more. However, they were extended benefit of section 382-B, Cr.P.C.

2. The relevant facts, briefly stated, are, that on 9.6.2014 complainant Excise Inspector Athar Hussain Khoso of Excise Police Station Kandiaro along with his subordinate staff during checking at Rasoolabad Check Post stopped a mini truck bearing registration No.TKA-551 coming from Sukkur side at 4.00 a.m. and got down two persons sitting on the driver seat, the driver of truck disclosed his name as Ghulam Dastagir son of Ali Muhammad Kakar resident of Kuchlak Lundi Kotal, District Quetta Rs.2500/- and photocopy of his CNIC were recovered from his personal search. The cleaner disclosed his name as Khayal Muhammad son of Haji Abdul Ghani Kakar, from his personal search Rs. 2000/- and photocopy of CNIC were recovered. A registration book and route permit in the name of Deen Paraz were recovered from dashboard. On search of truck one plastic sack (katta) was recovered from behind the driver seat. On opening said bag, forty packets packed in polythin sheet were recovered. When weighed each packet was one Kg. in weight, out of which 100 grams charas from each packet was taken out as sample and sealed separately for chemical examination while remaining charas was sealed in same Katta as case property under mashirnama witnessed by PWs EC Muhammad Tariq and EC Ghulam Hyder, which followed the registration of case.

3. After completing the investigation case was challaned in the court, showing accused Deen Paraz and Akhtar as absconders, ultimately, who were declared as proclaimed offenders.

4. A formal charge framed (Ex.3) to which appellants/accused pleaded not guilty and claimed trial.

5. At the trial, the prosecution examined (PW-1) Excise Inspector Athar Hussain Khoso, complainant at Ex.8 he produced mashirnama of wardat, FIR, roznamcha entry, letter addressed to Chemical Laboratory Sukkur at Rohri, receipt, letter addressed to ETO Quetta for verification of vehicle record, and chemical report at Ex.8-A to 8-G respectively, and (PW-2) EC Muhammad Tariq mashir at (Ex.9), thereafter, closed its side vide statement at Ex.10.

6. In their statements recorded under section 342, Cr.P.C. appellants/accused denied the allegations and pleaded their innocent, however, they did not examine themselves on oath in disproof of the allegations as required under section 340(2), Cr.P.C. nor produced any witness in their defence.

7. On conclusion of trial, learned Special Judge for CNS found the accused/appellants guilty and sentenced them to the terms as mentioned above.

8. Learned appellants counsel contended that the appellants have been involved falsely as they being the driver and cleaner of the truck were not in conscious knowledge of the alleged sack containing charas; that no independent witness is cited in the case; that prosecution evidence is discrepant and suffers from infirmities; that the investigation was conducted by complainant himself therefore, false implication of the appellants cannot be ruled out; that all the property was not sent for chemical analysis, as such no reliance could be placed on chemical examiner's report. In support of his contention he placed reliance on the cases of Ameer Zeb v. The State (PLD 2012 Supreme Court 380), Haji Inayat and another v. The State (2010 PCr.LJ 825) and Abdul Jabbar v. The State (2011 YLR 2169).

9. On the other hand learned Additional Prosecutor General supported the impugned judgment and submitted that the evidence produced in the case is trustworthy and confidence inspiring, the prosecution has proved its case against the appellants beyond reasonable shadow of doubt; that the chemical report is in positive; that no misreading or non-reading of evidence has been pointed out by the defence; that being driver and cleaner of the vehicle, had control on truck and articles lying in it, therefore, they both are responsible for recovery of charas; that application of section 103, Cr.P.C. has been excluded in CNS cases, that the samples were part of the total slabs/property, thus, there was no need to send entire charas, and that there is no bar on investigation of case by complainant. He has placed his reliance on the cases of Zafar v. The State (2008 SCMR 1254), Muhammad Khan v. The State (2008 SCMR 1616), Kamran alias Ghulam Rasool alias Kaloo v. The State (PLD 1997 Karachi 484), Ghulam Qadir v. The State (PLD 2006 Supreme Court 61), Tariq Mehmood v. The State through Deputy Attorney General Peshawar (PLD 2009 Supreme Court 39) and Gul Said v. The State (2002 PCr.LJ 1680).

10. We have given patient hearing to the arguments advanced at bar and have gone through the impugned judgment and evidence produced in the case. Complainant Athar Hussain and Mashir Muhammad Tariq, both have deposed that during checking they recovered forty (40) packets of charas, each packet was one Kg. in weight, total 40 Kg charas lying in plastic sack (patchka) just behind the driver seat and at that time only appellant was present on the truck. According to them 100 grams charas taken out from each packet as sample for chemical examination and remaining charas was in same plastic sack. Complainant produced chemical report at Ex. 8-G, which shows that representative samples in 40 pieces were found charas. Both the above witnesses have fully supported the prosecution case and have given a quite accurate account of the incident. They have consistently and categorically deposed the manner of the arrest and recovery of 40 Kg. charas from the accused so also the time of incident. Despite lengthy cross-examination, their evidence has not been shattered or shaken and nothing could be gained by the defence to discard their evidence. Nothing is brought on record to show any background of bitterness or ill will between accused and Excise police party to falsely implicate the appellants/accused by foisting such huge quantity of charas except simple suggestion of non-fulfilling demand of bribe, which has been denied. Throughout their statement, there is no material contradiction, as such their evidence is trustworthy and confidence inspiring.

11. So far the contention of learned counsel about conscious knowledge of appellants, the defence version cannot be accepted as the recovery was effected from single plastic sack lying adjacent to driver seat where both the appellants were present in the truck. There is no explanation offered by appellants/accused as to how the said plastic sack was kept with driver seat. No other luggage or material was lying in the truck. In the case of Shah Wali and others v. The State (PLD 1993 SC 32), heroin was recovered from front passenger seat of the Car occupied by the two persons/accused, which was held to be in joint possession of both the accused and their conviction was maintained. Therefore, on the simple denial of the appellants, they cannot be absolved from the responsibility of transporting contraband charas.

12. The next contention of learned counsel for the appellant is that complainant and mashir are both excise police officials and no independent witness is examined in the case though place of wardat is shown at Sukhio Hotel and admittedly public persons were present at the time of alleged incident, thus provision of section 103, Cr.P.C. has been violated. We are not agree with this submission for the reason that both excise police officials are competent witnesses like any other independent witness and their evidence cannot be brushed aside or thrown simply for the reason to be police/excise officials. In this context reliance is place on the cases of Muhammad Hanif v. The State (2003 SCMR 1237), Zulfiqar Ali v. The State (2006 SCMR 800) and Muhammad Azam v. The State (PLD 1996 SC 67).

13. There is nothing brought on record to indicate that they have given false statement against both the appellants.

14. The third contention and objection of learned counsel for the appellants about the investigation conducted by complainant is also without force, as there is no bar on conducting investigation by a police officer, who is complainant in the case. The Hon'ble Supreme Court in a case State through Advocate General, Sindh v. Bashir and others (PLD 1997 SC 408) has observed 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. The Court will have to appraise the evidence produced by the prosecution as a whole and will have to form the opinion after evaluating the same".

15. In the circumstance discussed above, we are of the considered opinion that the conclusion drawn and reasons recorded by the trial court, show fair evaluation of the evidence. No illegality or infirmity is found in the impugned judgment, resultantly while maintaining the same, appeal being meritless is dismissed. WA/G-10/Sindh Appeal dismissed.