2013 PLP 1244 (YLR)

KHALID MEHMOOD, J.

We propose to dispose of Criminal Appeals No.727 and 777 of 2010 by this single judgment, as both are the outcome of one and the same impugned judgment.

2. Amanullah appellant in Criminal Appeal No.727 of 2010 was tried, found guilty, convicted under section 9(c) C.N.S.A., 1997 and sentenced to imprisonment for life with a fine of Rs.100,000 or in default to suffer further one year's S.I. by learned Judge Special Court (C.N.S.) Peshawar vide his judgment dated 29-7-2010.The sentence in case of non-payment of fine was ordered to run consecutive to the substantive sentence. He was, however, extended the benefit of 382-B, Cr.P.C. The seized Bus No.1905/Swat used in the commission of offence has been confiscated to the State. Now Amanullah appellant has challenged his conviction and sentence through the appeal in hand. His co-accused Abid and Tasawar Hussain alias Ayub were, however, acquitted of the charge levelled against them.

3. Lal Bahader claiming himself to be the owner of the confiscated Bus filed the connected Criminal Appeal No.777 of 2010 with the prayer that the said vehicle may be handed over to him.

4. The prosecution case against the convict-appellant is that on 3-2-2010 ANF high-ups got secret information that narcotics smugglers driver Amanullah along with his workers Abid and Ayub concealed huge quantity of narcotics in the secret cavities of Bus No.V-1905/Swat, and had started from Mardan to Karachi via G.T.Road Peshawar. In view of the secret information, Sardar, Abdul Waheed AD Police Station ANF, Peshawar (P.W.3) along with the raiding party laid a picket near the Overhead Bridge Peshawar at 11-30 a.m. In the meanwhile the aforesaid Bus appeared on the scene, which was stopped for checking and the driver of the vehicle (Amanullah convict-appellant) was overpowered and on his pointation the second driver namely Abid and conductor namely Tasawar Hussain (both acquitted accused) were also overpowered. On pointation of the driver Amanullah (convict-appellant) from the upper side of the left rear tyres 12 packets of opium total weighing 14.400 Kgs. along with a pistol and two magazines belonging to the acquitted accused Tasawar Hussain were recovered. P.W.3 separated 10 grams from each packet and prepared 12 packets of samples for Laboratory test. Each parcel was sealed by affixing 2/2 seals of the monogram SW. on it. The remaining recovered contraband opium was seated into a plastic bag by affixing 4 seals of the same monogram. On further search of the Bus Registration Book of the vehicle in the name of Azizur Rehman Khan and an open transfer letter in the name of the convict-appellant and other personal belongings of all the accused were taken into possession by the said P.W.3 vide recovery memo Exh.P.W.3/1 in presence of the marginal witnesses. Thereafter he drafted the Murasila Exh.P.W.3/2 and handed over the same to Constable Azhar Rehman for taking to the Police Station for registration of the case against the accused. The case was registered at Police Station vide F.I.R. No.10 dated 3-2-2010 under section 9(c) C.N.S.A., 1997 at Police Station ANF Peshawar, the said constable came back to the spot with the original Murasial and two copies of the F.I.R. and handed them over to P.W.3, who prepared the Cards of arrest of all the three accused as Exh.P.W.3, to Exh.P.W.3/5. He also recorded the statements of the P.Ws., drafted the application Exh.P.W.3/6 for sending the parcels to FSL and thereafter came back to Police Station, where he handed over the remaining case property, sealed parcels, personal searches of the accused, Registration Book etc. and his application to FSL to the Muharrir concerned. In this respect he also recorded the statement of the said Muharrir under section 161, Cr.P.C. P.W.3 also applied for verification of the vehicle in question through D.D. Incharge of Police Station ANF Peshawar vide letter Exh.P.W.3/7 and issued reminder to the concerned MRA vide letter Exh.P.3/8. Later on the positive report of FSL report Exh.P.W.3/9 was received and placed on file. He also prepared separate challan under section 13 AO and submitted before the competent Court.

5. After completion of investigation in the case challan was submitted in the learned trial Court. The accused were charge sheeted for the commission of the offence in question and formal charge was framed against them, to which they pleaded not guilty and claimed trial. Rather opted to produce evidence in defence.

6. The prosecution in order to prove its case against the accused produced as many as five witnesses in all before the trial Court. All the P.Ws. are official witnesses and they have completed all the legal formalities and their duties assigned to them during the course of investigation.

7. After recording evidence of the prosecution witnesses, available on the file of the trial Court in detail, the accused were examined under section 342, Cr.P.C. wherein they denied all the allegations made against them by the prosecution. The principal accused Amanullah and Abid did not wish to give statement on Oath under section 340(2), Cr.P.C. but wanted to produce evidence in their defence. Accused Taswar Hussain alias Ayub neither wished to record his statement on Oath under section 340(2), Cr.P.C. nor opted to produce evidence in his defence.

8. Amanullah convict-appellant in his defence produced Fazale Ghafoor D.W.1, Nisar Khan D.W.2, Gohar Ali D.W.3 and Haji Bahader D.W.4, while accused Abid produced one Noor Nabi as D.W.5 in his defence.

9. Learned counsel for the appellant referred to some contradictions in the statement of P.Ws. regarding the recovery of the impugned contrabands. His other plea was that F.I.R. Number was not endorsed on the recovery memo, whereas at the time of recovery no F.I.R. was lodged and that all the P.Ws. are interested witnesses. That the site plan was not prepared by the Investigating Officer. He also argued that in spite of the fact that the complainant had prior information regarding the transportation of the contraband no independent witness was called upon to associate himself with the recovery proceedings and no search warrant was obtained before the recovery of the alleged contraband. The last argument of the counsel for the appellant was that being first offender lenient view may be taken and the punishment so awarded, may also be reduced.

10. On the other hand the learned counsel for the State vehemently supported the impugned judgment as the huge quantity of contraband opium weighing 14.400 K.Gs. was recovered from the conscious possession of the appellant. The appellant was driver of the Bus and in the secret cavity of the Bus, the contraband was concealed. He also referred to the statement of the defense witnesses, who were produced by the accused also failed to shatter the case of the prosecution.

11. We have heard the learned counsel for the parties and minutely gone through the evidence produced by the prosecution and the record of the case.

12. There is no denial on the art of the parties regarding the recovery of the contraband from the secret cavity of the Bus, which was being driven by the appellant. From the entire evidence following questions have been formulated for just resolution of the case, which are thus recorded as under:-- (i) Whether the appellant was driver of the Bus, from the secret cavity of which contraband heroin was recovered? (ii) Whether the prosecution was obliged to have obtained the search warrant before the recovery effected from the Bus being driven by the appellant? (iii) Whether the complainant was legally bound to have associated the elders of the locality for conducting of recovery of contraband in their presence? (iv) What was the effect of non-preparation of site plan? (v) What was the effect of mentioning of the F.I.R. Number on the recovery memo, when the F.I.R. was not chalked out at the time of recovery of the contraband, recovered from the secret cavity of the Bus? (vi) Whether the prosecution was obliged to have issued notice to Lal Bahader appellant in the connected Criminal Appeal No.777 of 2010, before seizing the Bus? (vii) What is the impact of defence witnesses produced by the appellant?.

13. It is an admitted fact that complainant had no personal grudge or enmity with the appellant, as no evidence on this score is available on record nor any suggestion whatsoever has been put to the P.Ws. to this effect. Appellant Amanullah had never denied that he was not driver of the Bus. Now the question is that whether the contraband recovery from the secret cavity of the Bus was planted by the prosecution or the same was concealed by the driver having conscious knowledge of the same, which was recovered on the pointation of the appellant. The said contraband was recovered from left rear tyres of the Bus. Concealing the contraband in the rear tyres is only possible if the driver of the vehicle himself who concealed the same in the tyres that too in the rear side is involved for the alleged task. It can only be done by using the instruments i.e. jack etc. with the good offices of the concerned driver of the vehicle.

14. The main contention of the learned counsel for the appellants in both the appeals is that the prosecution has failed to procure independent witnesses to associate with the recovery proceedings and nor the passengers travelling in the Bus were made witnesses to the recovery memo. It is now settled law that the police witnesses are as good witnesses as others, unless otherwise proved. Moreover, section 103 of Cr.P.C. is not strictly applicable in narcotic case under C.N.S.A. as envisaged in section 25 of the Act ibid, which reads as under:-- "Mode of making searches and arrest:--The provisions of the Code of Criminal Procedure, 1898, except those of section 103, shall, mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections".

15. Moreover in the F.I.R. complainant has clearly mentioned the refusal of the passengers who refused to become a marginal witness of recovery memo. Passengers who belong to different area usually refused; to become a witness in such like occasion. There is nothing on record to suggest that the P.Ws. produced by the prosecution had any grudge or enmity with the appellants, as no suggestion to this effect has been put to them. Though the F.I.R. Number is very much available on the recovery memo and the stance taken by the learned counsel for the convict-appellant that at the time of preparation of recovery memo F.I.R. was not chalked out then how F.I.R. Number was put on the recovery memo. Sorry to say that the appellant failed to put any question or suggestion to any witness regarding the mentioning of F.I.R. on the recovery memo. Usually in such like cases at the time of submitting the challan before the Court, the remaining formalities mentioning of F.I.R's. the appropriate section of law etc. are so mentioned in the relevant documents. As no question has been asked regarding the mentioning and putting the F.I.R. Number on the recovery memo at the time of recovery, hence the objection being flimsy is not sustainable.

16. The convict-appellant in support of his stance has produced 4 witnesses, but those witnesses are closely related to the co-accused. Neither the defence witnesses before recording of their statements ever appeared during the investigation before the Investigating Officer nor submitted any affidavit regarding the innocence of the accused or the facts narrated in their Court statements have ever been disclosed before any forum. Appearance of defence witnesses for first time before the trial court suggests that story is afterthought being concocted one is why to save the skin of the appellant. An important feature of the present case is that the appellant himself has not appeared before the Court for recording his statement on Oath, whereas he was obliged to have been examined to support the version of defence witnesses in order to substantiate his plea of innocence. At such a belated stage the shaky statements of the defence witnesses cannot be relied upon, when no documentary proof in support of the version of defence has been produced before the trial Court. Whenever accused raises the plea of any defence or produced defence witnesses in support of his stance, then the burden shifts to the accused to prove the same and to complete his defence evidence to its logical end by appearing himself as his own witness for his own defence in corroboration of his own defence plea, but in the present case the appellant did not appear in the witness box to substantiate his plea as described by the defence witnesses.

17. So far the question of ownership of the Bus as alleged by Lal Bahader appellant in the connected Criminal Appeal No.777 of 2010 is concerned, he kept mum from the very date of seizing of the Bus till the announcement of the judgment in the present case. For the proof of ownership Lal Bahader appellant never appeared before the I.O. and claimed his ownership during the course of investigation. After submitting of the challan till conclusion of the trial said appellant never moved any application before the trial Court claiming the ownership of the seized Bus. Had this stance of ownership was advanced before the trial Court, the fate of the ownership would have been decided by the trial Court. During the entire proceedings the appellant Amanul1ah from whose possession the Bus was seized, had produced the Registration and the transfer letter, on the basis of which he claimed the ownership of the Bus. It seems that appellant Lal Bahader waited the fate of the present case, only to save his skin from involving in the present case. This remained till conclusion of the trial. This unexplained silence on the part of the said appellant and claiming the ownership of the Bus after its forfeiture, suffice, to say that the claim of the appellant is after thought, mala fide and collusive one. During the whole proceedings from lodging of the F.I.R. till its conclusion, which culminated into the conviction of the accused Amanullah appellant, no one claimed the ownership of the Bus, except the convict-accused, hence there was no need to have issued a notice to the appellant Lal Bahader. His Criminal Appeal No.777 of 2010 being meritless is dismissed.

18. After appraisal of evidence and material available on file we have come to the irresistible conclusion that the learned trial Court after appreciation prosecution had undoubtedly established the recovery of contraband in the shape of opium weighing 14.400 Kgs. from the secret cavity of the Bus driven by convict-appellant, regarding which he had full knowledge and in this respect arguments advanced by counsel for the appellant has no force. Witnesses appeared in the trial Court against the appellant had no enmity or malice against him. Thus, though they are official witnesses of ANF, but in the absence of enmity or grudge, they are as good witnesses as other public witnesses and their testimony could not be discarded or brushed aside on the sole ground that they are members of ANF. It is apparent from the evidence on record that all the witnesses of the prosecution, who had witnessed the recovery of the contraband from the Bus mentioned above, which was undoubtedly being driven by the appellant, have remained consistent, so far the time, place and mode of recovery is concerned. The evidence produced by the prosecution is trustworthy, confidence inspiring and of unimpeachable character, the same is also in line with all the material points and also remained unshattered in spite of lengthy cross-examination by the defence. The site plan has not been prepared, which has some significance, but in the available evidence produced before the trial Court, as mentioned above, in absence of site plan is sufficient for the proof of this case. Moreover, in criminal case site plan is not substantive piece of evidence. So in view of the above discussion we hold that the impugned judgment and order of the trial Court is well-founded and needs no interference by this Court. Wisdom in this respect can be sought from Ismaeel v. State (2010 SCMR 27), wherein recovery was made from the Motorcar being driven by the convict and he was held responsible for the recovery of contraband narcotics. Consequently the conviction of the appellant is maintained, but the sentence of one year S.I. in default of payment of fine of Rs. 100,000 is reduced to six months' S.I. with this modification the appeal in hand being devoid of force is hereby dis-missed. HBT/105/P Appeal dismissed.