2018 P Cr (PLP)

MIRZA VIQAS RAUF, J.

This single judgment shall govern the instant appeal as well as Crl. Appeal No.50-J of 2014, as both these appeals question the validity of judgment of conviction dated 8th July, 2014.

2. The appellant namely Zia-ur-Rehman along with his co-accused namely Muhammad Irfan was tried by the learned Additional Sessions Judge/Special Judge Control of Narcotics Substances (CNS), Attock on account of recovery of Charas weighing 60 kilograms and opium weighing 10 Kilograms in case FIR No.203 dated 22nd November, 2013 offence under section 9(c) of The Control of Narcotic Substances Act, 1997 (hereinafter referred as "C.N.S.A, 1997"), registered at Police Station Attock Khurd, District Attock. The trial ended in conviction of both the accused under section 9(c) of "C.N.S.A, 1997" and they were sentenced to undergo imprisonment for life along with fine of Rs.100,000/- or in default of payment of fine, they were held liable to further undergo one year simple imprisonment. Benefit of section 382-B of The Code of Criminal Procedure, 1898 (hereinafter referred as "Cr.P.C.") was, however, extended to the appellants/convicts.

3. The prosecution story is structured on the statement of Zubair Hayat, S.I, who appeared as PW-5 and narrated the gist of allegations as under:- "On 22.11.2013, I along with other police officials were present at Entry Checkpost Khurd in connection with checking of narcotics etc. I received spy information that huge quantity of narcotics will be smuggled from KPK to Punjab through Bedford truck No.2515-Peshawar. On this information I tightened the Nakabandi. At about 07.00 p.m. truck No.2515-Peshawar came from Peshawar side which was stopped for checking. We apprehended the driver of the truck and the person sitting on front seat. The driver disclosed his name as Zia-ur-Rehman accused present in Court while the other person disclosed his name as Muhammad Irfan accused, present in Court. I conducted search of the truck and recovered 70-packets from the secret cavity made in the roof above the driver's seat after un screwing the wooden slab. Out of which 27-packets were of garda Charas and 33-packets of Charas and 10-packets were of opium. On weighing the 27-packets of garda Charas each packet came to 1000-grams and total weight became 27-Kilograms. On weighing 33-packets of Charas each packet came to 1000-grams and total weight became 33-Kilograms. Each packet of opium was of 1000-grams and total weight of the same was 10-Kilograms. Out of the recovered garda Charas, Charas and opium I separated 10- grams from each packet and prepared 70-sealed parcels for sample purposes. I also prepared 27-sealed parcels of garda Charas P1/1-27, 33-sealed parcels of Charas P2/1-33, 10-sealed parcels of opium P3/1-10 and total 70-parcels were prepared which I took into possession along with Bedford truck No.2515-Peshawar P10, vide memo Exh.PB. On further personal search of the accused Zia-ur-Rehman the S.I recovered amount of Rs.8000/- consisting of ten currency notes of denomination of Rs.1000/- each P4/1-10, Mobile phone Nokia P5 along with two SIMS P5/1-2, National Identity Card of the accused P

6. The IO secured the same vide memo Exh.PC. On personal search of Muhammad Irfan accused the S.I. recovered amount of Rs.2000/- consisting of one currency note of denomination of Rs.1000/- and two notes of Rs.500/- each P7/1- 4, a key P

11. The I.O. seized the same vide memo Exh.PD. On further search of the truck from its dash board a route permit P8 and registration book P9 which the I.O. took into possession vide memo Exh.PE. All the memos were attested by me and Abdul Hameed LHC.I.O recorded my statement. I drafted complaint Exh.PA and sent the same to the Police Station through Waqas Akram Constable for registration of formal FIR. I inspected the spot, prepared rough site plan Exh.PF. I confined the accused in the police lockup and handed over the case property according to the recovery memos to the Moharrar. On 23.11.2012, I obtained physical remand of both the accused from competent Court for three days. On 25.11.2013, I got sent the sample parcels to the office of Chemical Examiner, Rawalpindi and recorded statements of two PWs under section 161 of Cr.P.C. in this behalf. On 26.11.2013, I got sent both the accused to judicial lockup through competent Court. On 30.11.2013, I got prepared the challan finding the accused guilty and sent the same to the Court of trial.

4. After having effected the alleged recovery from the appellant, complaint Exh.PA was transmitted to the police station for registration of First Information Report. On formal registration of case and conducting of investigation, both the appellants were sent to face the trial before the learned Additional Sessions Judge/Special Judge Control of Narcotics Substances (CNS) Attock. The learned Trial Court after taking cognizance, framed charge against the appellants under section 9(c) of "C.N.S.A, 1997" to which they pleaded not guilty and claimed trial. The prosecution examined five witnesses in toto in support of the charge and also tendered the report of Punjab Forensic Science Agency (hereinafter referred as "PFSA") as Exh.PG in the documentary evidence. The appellants, on the other hand, recorded their statements under section 342 of "Cr.P.C.". While answering question why this case was registered against you and why the P.Ws have deposed against you, the appellant namely Zia ur Rehman stated as under:- "I am innocent. Nothing was recovered from my possession. In fact on the day of alleged recovery, I along with Muhammad Irfan accused was going to Rawalpindi and was deboarded at Attock Khurd by the police. The police demanded CNIC from Muhammad Irfan, my co-accused who was not having the same with him at the time. The police took us to the Police Station and demanded bribe from us and we refused to bribe them on which falsely implicated us in this case. Actually the police had taken into possession the truck from some other persons who had given them huge amount for their release and after taking that amount, the police relieved them and in order to show their performance falsely planted the same upon us. I cannot drive any vehicle and the allegation of driving truck by me is totally false. All the PWs are police officials and are interested witnesses and in collusion with each other they have deposed falsely against me and my co-accused after taking huge amount from the real culprits. The whole evidence produced against me is concocted one." Whereas to a similar question appellant Muhammad Irfan responded in the following manner:- "I am innocent. Nothing was recovered from my possession. In fact on the day of alleged recovery, I along with Zia-ur-Rehman my co-accused was going to Rawalpindi and was deboarded at Attock Khurd by the police. The police demanded my CNIC and as the same was not available with me the police took us to the Police Station and demanded bribe from us and on our refusal they falsely implicated us in the case. Actually the police had taken into possession the truck from some other persons who had given them huge amount for their release and after taking that amount, the police relieved them and in order to show their performance falsely planted the same upon us. I cannot drive any vehicle and the allegation of driving truck by me is totally false. All the PWs are police officials and are interested witnesses and in collusion with each other they have deposed falsely against me and my co-accused after taking huge amount from the real culprits. The whole evidence produced against me is concocted one." The appellants, however, neither opted to record their statements under section 340(2) of "Cr.P.C." nor produced any defense evidence. On culmination of trial, the appellants were convicted and sentenced as already mentioned hereinabove by way of judgment dated 8th July, 2014.

5. Learned counsel for the appellant Zia-ur-Rehman submitted that the case against the appellant is false and the prosecution has badly failed to prove the charge against him. Learned counsel contended that PW-5 acted in dual capacity which caused serious prejudice to the appellant. Learned counsel further contended that there is a considerable delay in sending the sample parcels to the office of Chemical Examiner and prosecution has failed to prove safe custody of the recovered substance. While making reference to the statements of Waqas Akram constable No.2070 (PW-1) and Sher Khan ASI/Moharrar Malkhana (PW-2), learned counsel contended that prosecution has failed to prove the safe custody of the case property. Learned counsel contended that defense plea has not been properly appreciated by the learned Trial Court and the impugned judgment is not tenable.

6. On the other hand, learned counsel for the appellant Muhammad Irfan laid emphasis on the point that prosecution has badly failed to prove conscious knowledge of the accused and impugned judgment, thus, cannot sustain.

7. Conversely, learned Deputy District Public Prosecutor for the State, while defending the impugned judgment, submitted that prosecution has ably discharged the onus of proof and the appellants were convicted after due appraisal of evidence. It is contended that no illegality or material irregularity is committed by the learned Trial Court while recording guilty verdict.

8. After having heard learned counsel for the appellants as well as learned Prosecutor, we have perused the record.

9. The appellants were apprehended by the police on the basis of spy information when they came at the place of recovery on a Bedford Truck No.2515-Peshawar. While carrying search, from secret cavity made in the roof of truck above the driver's seat, 70 packets out of which 27 packets of Garda Charas weighing 27 Kilograms, 33 packets of Charas weighing 33 kilograms and 10 packets of opium weighing 10 Kilograms were recovered. Out of recovered Garda Charas, Charas and Opium, 10 grams from each packet were separated for chemical analysis. The recovery was witnessed by Ghulam Haider, Head Constable No.733 (PW-4) and Abdul Hameed, Head Constable No.712 (given up). In order to bring home guilt of the appellants, prosecution examined Waqas Akram constable No.2070/C as PW-1. He took sample parcels for chemical analysis to the office of Chemical Examiner where he deposited on 25.11.2013. Sher Zaman, A.S.I, who was officiating as Moharrar at the relevant time, appeared as PW-2 and deposed about the safe custody of the case property and transmission of sample parcels to the office of Chemical Examiner on 25th November, 2013 through Waqas Akram constable No.2070 (PW-1). Amir Hussain Shah, S.I, being scriber of FIR, was examined as PW-3. Ghulam Haider, Head Constable No.733, being one of the recovery witnesses, was examined as PW-4. The complainant of the case Zubair Hayat, S.I, who was also the Investigating Officer, appeared as PW-5. The recovered substance was produced before the learned Trial Court in his statement as Garda Charas (P-1), Charas (P-2) and Opium (P-3). The statements of all the material witnesses of recovery are completely in line with the prosecution case set forth in the complaint Exh.PA. We have noticed that despite having tested in the cross-examination with certain pivotal questions, all these witnesses remained firm and their statements could not be shattered. This ocular account was further supported by report of Government Analyst tendered in evidence as Exh.PG.

10. While adverting to the question that the complainant has acted in dual capacity, it is observed with clarity that law does not place any embargo on the complainant to assume the role of the Investigating Officer. Even otherwise, nothing is available on the record to the effect that on the basis of dual function of the complainant, some prejudice was caused to the appellants. Guidance in this respect can be sought from "State through Advocate- General, Sindh v. Bashir and others" (PLD 1997 SC 408).

11. So far contention of learned counsel for the appellants that prosecution has failed to prove safe custody of the case property, it is observed that after making an accumulative analysis of all the material witnesses including Waqas Akram constable No.2070-C (PW-1), Sher Khan, A.S.I/Moharrar Malkhana, (PW-2), and Zubair Hayat, S.I (PW-5), we are unanimous in our view that arguments of learned counsel for the appellants to this extent is highly misconceived and ill-founded. The appellants, despite lengthy cross-examination, have failed to shatter the prosecution evidence to this effect.

12. Now addressing the question of delayed submission of sample parcels to the office of Chemical Examiner, it is noticed that alleged recovery was effected on 22nd November, 2013 whereas sample parcels were sent to the office of Chemical Examiner on 25th November, 2013. To this effect, Sher Khan, ASI was examined as PW-2 but his statement went un-rebutted with regard to the safe custody and transmission of the case property to the office of Chemical Examiner. Even otherwise, dispatching of sample beyond 72 hours is not a sine qua non. Mere delay in sending the sample to the P.F.S.A is not at all fatal to the prosecution case because Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, do not place any bar on the Investigating Officer to send the samples beyond 72 hours of seizure or recovery of the contraband. The provisions in this respect are directory and not mandatory. Guidance in this respect, if needed, can be sought from "Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar" (PLD 2009 Supreme Court 39).

13. It is apparent from the record that at the very outset, it was the case of prosecution that a Truck driven by Zia-ur-Rehman (appellant) wherein Muhammad Irfan (appellant) was seated as conductor, was intercepted on the basis of suspicion, which led to the recovery of huge quantity of Charas, Charas Garda and opium from its secret cavities. The prosecution has produced all the necessary evidence which can safely be termed as cogent enough to discharge the initial burden of proof as required under section 29 of "C.N.S.A, 1997". The appellants were, thus, obliged to refute the overwhelming prosecution evidence through some tangible material but except general and vague denial, nothing is available on the record which, cannot form basis for discarding confidence inspiring evidence of the prosecution. After having placed in juxtaposition the prosecution evidence with the defense plea, we are of the unanimous view that defense plea is just an eye wash and there was no reason for the police officials to falsely implicate the appellants in a heinous offence in absence of any enmity. The substitution is always a real phenomenon in criminal cases and it does not appeal to prudent mind that after effecting such a huge quantity of narcotic, the actual culprit (s) has/have been let of by the police. We are, thus, of the candid view that prosecution has ably discharged the initial onus of proof. Being the special law, section 29 of "C.N.S.A, 1997" gives rise to a presumption of guilt against the accused, if once the prosecution leads ample evidence and discharges the initial onus of proof then it is the accused who has to diminish the presumption of guilt against him. The defense plea is neither convincing nor sufficient enough to cast any aspersions on the overwhelming prosecution evidence.

14. The nutshell of above discussion is that prosecution has successfully established the guilt of the accused and they were rightly convicted by the learned Trial Court. The sentence awarded to the appellants duly commensurate with their act. Resultantly this appeal as well as Crl. Appeal No.50-J of 2014 fail and are dismissed. The conviction and sentence of the appellants is, thus, maintained. JK/Z-11/L Appeal dismissed.