SHADI KHAN Versus THE STATE

RAJA FAYYAZ AHMED, C.J.- -- By a common judgment, dated 18-1-2001 passed by the learned Special Court under Control of Narcotic Substances Act, 1997 Mekran Division at Turbat in (Special Narcotic Case No.23 of 1999) appellants Abdul Wahid, Shadi Khan and Abdul Samad were found guilty under section 6 of Act XXV, 1997 for having been found in possession of 368 kilograms of opium and each have been sentenced to imprisonment for 'life under section 9(c) of Control of Narcotic Substances Act, 1997 and a fine of Rs.5,00,000 and in default of fine each to suffer S.I. for one year. Benefit of section 382-B, Cr.P.C. was extended in their favour.

Convicts/appellants Abdul Wahid and Abdul Samad have assailed the abovesaid judgment by filing respectively Criminal (Jail) Appeals Nos.9 of 2001 and 10 of 2001 through Superintendent, Central Jail, Machh, whereas; convict Shadi Khan has filed appeal against his conviction and sentence through his appointed Advocate (Mr. M. Salahuddin Mengal). As the appellants Abdul Wahid and Abdul Samad were un represented, therefore, on their behalf respectively Mrs. Shabnam Allah Din and Mr. Abdul Rahim Mengal, Advocates were appointed as their counsel at State expense. Since these appeals have been filed against a common judgment, therefore, we intend to dispose of the same by this judgment.

2. The brief facts of the case are that pursuant to an authentic secret information received by the Deputy. Superintendent, Customs; Panjgur a Special Customs Patrolling Party was constituted under the supervision of P. W. Mehtab Ahmed, Inspector Customs Mobile Squad, Panjgur; which made Nakabandi on Panjgur Kharan Road near Gichak on 6-7-1999 and at 11-30 hours the patrolling party spotted a vehicle coming to Panjgur from towards Kharan and when it came closer, the raiding party abruptly came up on the road and signalled the said vehicle to stop, but the driver of the vehicle instead of haulting the vehicle accelerated the same and attempted to escape and the Custom Raiding Party being on high alert within moments started chasing the vehicle. The Customs Raiding Party statedly having left with no alternative fired some rounds in the air and; finally from different angles targetted the tyres of the Pick-up, as a result whereof, the said vehicle was stopped. The customs staff/raiding party intercepted the Pick-up and took the driver and his two other companions into their custody and on checking of the vehicle (Pick-up) 368 Kgs. of opium (foreign origin) was recovered and from the driver's cabin one kalashnikov alongwith four spare magazines, 280 kalashnikov rounds were recovered and the driver of the vehicle, who disclosed his name as Abdul Wahid son of Jan Muhammad and his two companions, disclosed their names as Abdul Samad son of Muhammad Gul and Shadi Khan son of Adam Khan failed to produce any legal documents relating to the offensive/contraband articles (opium, arms and ammunition) which were seized under Provisions of section 3(1) of the Import and Export (Control) Act, 1950, sections 2(s) and 16 of the Customs Act, 1969, S.R.O. 781(1)/98, dated 6-7-1998 sections 13-A, 13-E of Arms Ordinance, 1965 read with clause 8(89) of section 156(1) of the Customs Act, 1969 and; under section 9 of Control of Narcotic Substances Act, 1997 and Masheernama, in presence of witnesses was prepared at the spot. The Toyota Pick-up bearing chassis No.YN-57-0058071 was also seized. About which recovery memo was prepared as the same was used for transportation of the contraband goods made punishable under section 157(2) of the Customs Act, 1969. The accused mentioned above were accordingly arrested and notice under section 171 of the Customs Act, 1969 was also served upon them. In view of these allegations F.I.R. (Exh. P./3-C) was registered with the Customs Station, Panjgoor on the same date at about 11-30 hours.

Mehtab Ahmed, Customs Inspector (P.W.3) after registration of the F.I.R. conducted investigation of the case and recorded statements of? the P. Ws. and interrogated the accused. He took out samples from each of the pouches containing opium and sealed the same into a separate parcel for chemical analysis and after completion of investigation filed challan (Exh.P./3-E) in the learned Special Court, under Control of Narcotic Substances Act, 1997 for trial of the offence against the accused under section 9(c) of the said Act.

3. The appellants were indicted in view of the accusation as contained in the F.I.R, for having contravened the provisions of section 6 of the Control of Narcotic Substances Act, 1997 made punishable under section 9(c) of the said Act, to which they each not pleaded guilty and the prosecution to substantiate the accusation produced three witnesses. After close of prosecution evidence, the appellants were examined by the learned Special Court (hereinafter referred to as the learned trial Court) under section 342, Cr.P.C. in the light of incriminating pieces of evidence, which they disputed and contested, however, each of the appellants in answer to Question No.2 admitted that on the date of incident the Pick-up reached to the Naka and was being driven by accused Abdul Wahid and the other two accused were also seated with the driver of the vehicle. Accused Shadi Khan in response to Question No.4 stated that the customs staff burst the tyres of the standing vehicle and the accused Abdul Samad stated that on account of enmity with accused Abdul Wahid the P.Ws. have deposed against them. Accused Abdul Wahid while answering Question No.8 stated that the P. Ws. on account of enmity have deposed against them.

None of the convicts/appellants opted to record statement on oath within the purview of section 340(2), Cr.P.C. nor produced any defence evidence except accused Abdul Wahid, who produced two witnesses in defence namely Rasool Khan (D.W.1) and Muhammad Ibrahim (D.W.2).

4. Prosecution evidence

Muhammad Qasim Khan Sepoy Customs (P. W. 1)

He deposed that on 6-7-1999 under the supervision of Customs Inspector Mehtab Ahmed they were on Gasht and had made Nakabandi at a distance of twenty-five kilometers from Panjgur and at about 11-30 a.m. a Pick-up came there which was signalled to stop and the driver of the vehicle accelerated the vehicle, so the customs staff fired in the air but even then the Pick-up did not stop, ultimately; the rear tyres of the Pick-up were fired at and the vehicle stopped, which was checked during the course whereof, 368 kilograms opium was recovered besides one kalashnikov, four magazines and 280 rounds were also recovered from the vehicle. The witness categorically alleged that he had seen accused Wahid driving the Pick-up and with him Shadi Khan and Abdul Samad. were also sitting, who all were arrested. According to the witness on the personal search of accused Wahid Rs.441 and from Shadi Khan Rs.50 were recovered and nothing was recovered on the personal search of accused Abdul Samad. He further stated that recovery memo was prepared relating to the opium and arms and ammunition which he produced as Exh.P./1-A bearing his signatures. According to him the vehicle was also taken into possession. He produced the recovered opium and the vehicle as articles in Court and also identified the appellants, as the accused.

Note has been recorded to the effect by the learned trial Court that original of Exh.P./1-A has already been produced in the same Court in the customs case and on the request of the A.D.A. the pouches were de-sealed, which were 184 in number.

Hassan Jan, Hawaldar Customs (P.W.2).

According to him on 6-7-1999 they made Nakabandi near to Pir Umer Jan at a distance of twenty-five miles from Panjgur and the customs staff namely Babul, Adam, Abdul Khaliq, Qasim and Customs Inspector Mehtab was also present with him when at 11-30 a.m. a vehicle came there which was signalled to stop but it did not stop, so they burst the tyres of the vehicle with the result that the vehicle stopped which was being driven by accused Abdul Wahid with whom accused Abdul Samad and Shadi Khan were found sitting, and; 184 pouches containing opium, each weighing two kilograms kept in sacks were recovered and in addition thereto, one kalashnikov, magazines and rounds were also recovered. The witness further stated that the accused were arrested and they were brought to the Customs Check Post and on spot recovery memo. pertaining to the opium etc. was prepared. He produced 184 pouches each containing two kilograms opium and the vehicle, as article in Court. Appellants were identified as the accused in Court.

Mehtab Ahmed, Customs Inspector (P.W.3).

He deposed that in the month of July, 1999 he was posted at Panjgur and on 5-7-1999 information was received that a few people intend to take/transport narcotics from Kharan route via Panjgur toward Mand and the Deputy Superintendent Customs formed a raiding party, in which he (Mehtab Ahmed), Hawaldar Hassan, Qasim and other customs staff was included and they at a distance of thirty kilometers at Kharan Road held a Naka. According to the witness on the next following day i.e. 6th July, at 11-30 a.m. a Pick-up came there from towards Kharan which was signalled to stop but the driver of the vehicle accelerated the Pick-up and they chased the vehicle in their own vehicle and also made aerial firing and after that the rear tyres of the vehicle were burst with the result that the Pick-up stopped and he saw the accused Wahid driving the Pick-up with whom accused Abdul Samad and Shadi Khan were sitting, who were apprehended and the vehicle was searched, during the course whereof one kalashnikov, four magazines and 280 rounds were recovered and from the rear portion of the Pick-up 184 bags containing opium were recovered from the sacks and each of the bag/packet weighed two kilograms. According to the witness recovery memo of the recovered opium, arms and ammunition was prepared by him in presence of witnesses, who inscribed, their signatures on the memo. which he produced as Exh.P.1/A bearing his signatures. The learned trial Court recorded a note that photo copy of the memo. was produced as the original thereof was tendered in the customs case. He also produced the memos. pertaining to the personal search of each of the accused as Exh.P.3/A, Exh.P.3/B and according to him from. accused Abdul Samad nothing was recovered on personal search. Note has been recorded by the learned Court that originals of the memos. relating to the personal search were produced in the customs case. The witness arrested the accused, who were brought to the Customs Check Post alongwith seized vehicle and the recovered articles. He produced the photo copy of the F.I.R. as Exh.PA/C and the original F.I.R. as per note recorded by the learned trial Court was produced in the customs case.

He also conducted investigation of the case, recorded statements of P.Ws. under section 161, Cr.P.C. and interrogated the accused. According to him he took out samples from each of the pouches for chemical analysis and sealed the same into a separate parcel, which he delivered to the Chemical Expert for examination and report. He produced the report of the Expert (photostat copy) as Exh.P.3/D, received by him and after completion of investigation filed challan in the learned trial Court, as Exh.P.3/E. He also produced the pouches each containing two kilograms of opium as articles in Court which according to him were loaded in the vehicle besides the Pick-up as articles. The appellants were identified by witness as accused from whose possession during search of the vehicle illicit opium was recovered.

5. Defence evidence of accused Abdul Wahid Rasool Khan son of Jan Muhammad (D.W.1).

He deposed that on 17-1-1998 Abdul Wahid was missing for three days from his house where after he returned to home and on inquiry Abdul Wahid disclosed that Muhammad Khan Mengal booked his vehicle for Khuzdar and by playing fraud he took his vehicle to Quetta and left him there (at Khuzdar). The witness further stated that they registered a case against Muhammad Khan and Abdul Baqi and after that, some of their people went to the house of Abdul Baqi where also some Jattak people had come and Abdul Wahid and Qasim were also present. So, they asked from them as to why vehicle of Abdul Wahid was snatched and to them vehicle was restored. Where after, Qasim threatened them to take 'revenge of his disgrace and for such reason accused Abdul Wahid has been involved in a false case.

Muhammad Ibrahim (D W 2).

He deposed that Abdul Wahid had a vehicle with him which he used to ply locally and in the meanwhile for two days Abdul Wahid was missing, who returned on third day and on being asked Abdul disclosed that Muhammad Khan Mengal hired/booked his vehicle for two days to Khuzdar where Abdul Baqi, Qasim Jattak and Muhammad Khan snatched his vehicle. After that, the tribe's men of accused Abdul Wahid went to the house of Abdul Baqi at Quetta where the vehicle was found standing which was taken back forciblly and thereafter Abdul Baqi and his relatives threatened to take revenge and after that, false case was made out against accused Abdul Wahid.

6. We have heard the learned counsel for each of the appellants and the learned Assistant Advocate-General for the State at length. Mr. Salahuddin Mengal, the learned counsel for the appellant Shadi Khan contended that:--

(a) On material particulars prosecution evidence is inconsistent, contradictory and doubtful, therefore, the same even in absence of defence evidence cannot result into conviction of appellant.

(b) Appellant Shadi Khan in his statement before the Court submitted that he wanted to record his statement on oath and to produce defence evidence for which he even submitted application in the learned trial Court but such opportunity was denied to him, therefore, he has been seriously prejudiced in his defence, although, it was obligatory for the learned trial Court to have had afforded fair and reasonable opportunity of leading defence in the case, which consequently, render the impugned judgment as not sustainable.

(c) Without prejudice to the above grounds, appellant Shadi Khan was a bona fide passenger and had no knowledge about the illicit substance, lying in the Pick-up and the recovery of the illicit articles at best indicate that the same belonged to appellants Abdul Wahid and Abdul Samad being the driver and cleaner respectively of the vehicle or they had the knowledge that illicit opium was lying in the vehicle with which appellant Shah Muhammad had no concern or connection, who being a poor person got the lift to reach to the destination without knowing that the illicit goods were loaded in the vehicle.

Mrs. Shabnam Allah Din for the appellant Abdul Wahid contended that:--

(a) The prosecution evidence cannot be made, subject of implicit reliance on account of material discrepancies and inconsistencies, suffering from doubts as well.

(b) Since as per case of the prosecution they had the prior information that illicit narcotics was likely to be transported through-the route, therefore, it was obligatory on the part of the Customs Officer to have had associated private persons to witness the proceedings and for want of any effort made in such behalf makes the case of the prosecution as doubtful.

(c) P.W. Muhammad Qasim had the enmity with the appellant Abdul Wahid and for such reason the driver of the vehicle and other appellants have been falsely involved in the case.

(d) The learned Special Court misread and misconstrued the evidence on record, which on wrong assumption of facts illegally discarded the defence plea and evidence of accused Abdul Wahid.

Mr. Abdul Rahim Mengal for appellant Abdul Samad adopted the arguments of Mrs. Shabnam Allahdin and added that appellant Abdul Samad has become victim of the circumstances, who neither enjoyed any knowledge nor had any concern with the illicit opium alleged to have been recovered from the vehicle. He also added that provisions of section 103, Cr.P.C. were seriously violated and non-association of the private persons to witness the search and recovery is fatal to the case of the prosecution. He sought support from the judgment reported in 1999 PCr.LJ 1546.

6. Mr. Ghulam Mustafa Mengal, the learned Assistant Advocate? General contended that:--

(a) All the three appellants/convicts were found in occupation of the vehicle being driven by appellant Abdul Wahid in which a huge quantity of opium was being transported and the prosecution through evidence successfully discharged the burden, which appellants failed to impeach or rebut, hence; appropriately and on correct appraisal of evidence, the learned Special Court found them guilty on the charge and in view of the evidence of the prosecution it was duly substantiated that all the three accused were enjoying possession of the .narcotics being transported in the vehicle as well as strong presumption existed to believe that they had the knowledge about the illicit narcotics, hence; on proper application of law and facts they have been found guilty by the learned Court.

(b) Fair and reasonable opportunity for producing defence was afforded to appellant Shadi Khan which he did not avail and the plea for producing defence evidence was subsequently introduced in order to protract the conclusion of the trial and also no justification for reopening the defence was shown, hence; the learned Special Court rightly declined to accede to the request.

(c) As huge quantity of narcotics was recovered, therefore, the plea of false implication appears to be highly improbable.

He placed reliance on the judgments of Honourable Supreme Court reported in PLD 1993 SC 32 and 1993 SCMR 789.

7. We have considered the contentions put forth on behalf of the appellant's learned counsel and the learned Assistant Advocate-General for State in the light of the record of the case, which has been gone through carefully including the impugned judgment. The case-law cited by Mr. Abdul Rahim Mengal and the learned Assistant Advocate-General has also been considered in the light of the facts and circumstances of the case including the relevant provisions of the Act. The case of the prosecution is that pursuant to an authentic secret information received by Deputy Superintendent Customs, Panjgur a Special Customs Patrolling Party was formed, headed by P.W. Mehtab Ahmed (Inspector Customs Mobile Squad, Panjgur) and other staff of the Customs, which held Nakabandi on Panjgur Kharan Road near Gichak and on 6-7-1999 at 11-30 a.m. the patrolling party spotted a vehicle coming to Panjgur from towards Kharan and when it came closer, the raiding party abruptly came up on the road and signalled the said vehicle to stop but the driver of the vehicle instead of haulting the vehicle accelerated the same and attempted to escape and the raiding party being on high alert within moments started chasing the vehicle and statedly having left with no alternative fired a few rounds in the air, and finally targetted the tyres of the Pick-up with the result that the said vehicle was stopped and the customs staff/raiding party intercepted the Pick-up and took the driver and his two other companions into their custody. On checking of the Pick-up 368 kilograms of opium (foreign origin) was recovered and from the driver's cabin one kalashnikov alongwith four spare magazines and 280 kalashnikov rounds were recovered. The driver of the vehicle disclosed his name as Abdul Wahid, whereas, the two other occupants disclosed their names as Abdul Samad and Shadi Khan and; they failed to produce any legal documents relating to contraband articles (opium, arms and ammunition), consequently, the same were taken into possession vide memo. prepared by P.W. Mehtab Ahmed and the Pick-up was also seized under the relevant provisions of the Customs Act. The proceedings drawn on the spot have been described in para. No. 2 of this judgment and consequently; on these allegations F.I.R. (Exh.P.3/C) was registered with the Customs Station, Panjgoor on the same date at about 11-30 hours. ?

Before dilating upon merits of the case and dealing with the other contentions put forth on behalf of the parties it would' be proper to consider the plea raised by Mr. Salahuddin Mengal, the learned counsel for the appellant Shadi Khan that fair and reasonable opportunity of producing defence evidence was not offered to Shadi Khan. It may be seen that after close of prosecution evidence the accused were examined by the learned trial Court under section 342, Cr.P.C. on 5-6-2000 out of whom accused Abdul Wahid stated that he wants to record his statement on oath besides producing witnesses in defence, whereas; accused Shadi Khan stated that he intends to make statement on oath, but does not want to produce any witness in defence in response to Questions Nos.9 and 10 respectively, put to accused Shadi Khan being examined by the learned trial Court under section, 342, Cr.P.C. Accused Abdul Samad did not opt to record statement on oath nor wanted to produce any witness in defence and the case was adjourned to 13-6-2000 on which date the learned counsel for the accused requested for adjournment on the ground that defence witnesses of accused Abdul Wahid were not present, which will be produced on the next date and statements of the accused under section 340(2), Cr.P.C. will also be recorded on such date. Accordingly, the learned trial Court postponed the case to 29-6-2000 for the defence evidence of accused Abdul Wahid as well as for recording statements of accused Abdul Wahid and Shadi Khan under section 340(2), Cr.P.C. Again on the request of the learned defence counsel matter was adjourned to 3-7-2000 for the purpose, on which date statements of defence witnesses, produced by the accused. Abdul Wahid were recorded and the learned counsel for the accused submitted an application that accused Shadi Khan and Abdul Wahid are not interested to record their statements on oath, therefore, the case was adjourned to 5-7-2000 for final arguments. On the date fixed in the matter e.g. 5-7-2000 Mr. Muhammad Noor, Advocate also filed Vakalatnama for all the three accused and submitted an application under section 540, Cr.P.C. praying therein that the Investigating Officer (P.W. Mehtab Ahmed) be resummoned/recalled for the purpose of further cross-examination and the accused be permitted to record their statements on oath and further the accused Shadi Khan may be allowed to produce witnesses in defence. Notice of this application was given to the learned Special Prosecutor and thereafter, arguments on the application were heard by the learned trial Court on 22-8-2000 and on 30-9-2000; vide separate order this application was rejected by the learned trial Court in the light of the submissions made by Messrs Barkat Ali Baloch and Muhammad Noor, Advocates for the appellants as well as in view of contents of the application for the reasons that the learned counsel for the accused failed to substantiate and satisfy the Court as to the grounds in consideration whereof the Investigating Officer to be recalled for the purpose of re-cross-examination and, therefore, merely for the reason that some material questions were not put to the witness during cross-examination, the witness cannot be recalled and secondly the P. Ws. were already cross-examined by Mr. Barkat Ali Baloch appointed by all the accused and further the application was found to be vague in its contents so as to justify for recalling the Investigating Officer for the purpose of re-cross-examination by the 2nd learned defence counsel subsequently appointed by all the accused and reliance was placed on the judgment reported in 1989 PCr.LJ 469. The other request made in the application seeking to permit all the accused to appear as their own witnesses within the purview of section 340(2), Cr.P.C. as well as allowing accused Shadi Khan to produce witnesses in defence was also turned down by the learned trial Court on the grounds that they declined to record their statements on oath despite opportunities afforded to them for the purpose except accused Abdul Samad, who at the very outset while under examination by the Court stated that he does not want to record his statement on oath and secondly neither in the application nor the learned counsel for the appellants satisfied the Court as to why and on what grounds despite opportunities afforded to the accused and their subsequent, refusal to record statement on oath, they be permitted to appear as their own witnesses in defence and secondly no justification was shown to the learned trial Court for production of witnesses in defence by accused Shadi Khan.

Also Mr. Salahuddin Mengal except raising the plea that fair and reasonable opportunity of producing defence evidence was not afforded to the appellant Shadi Khan in support of such plea did not advance any reason nor even urged before us any ground so as to justify for permitting the accused to appear as their own witness in defence within the meaning of section 340(2), Cr.P.C. and to allow appellant Shadi Khan to produce defence witnesses. Although the accused Shadi Khan while being examined by the learned trial Court under section 342, Cr.P.C. stated that he wants to record his statement on oath and for the purpose as hereinabove noted twice case was adjourned but he did not appear in the witness-box and ultimately; the learned defence counsel submitted an application that accused Abdul Wahid and Shadi Khan are not interested to record statement on oath, accordingly; such request was entertained by the learned Court. As regards the production of defence witnesses by accused Shadi Khan is concerned even the number and names of defence witnesses intended to be produced were not disclosed in the application submitted before the learned trial Court nor during arguments before us the learned counsel made any submission as to on what plea appellant Shadi Khan intended to produce defence witness and how many and as to why he subsequently, declined to record his statement on oath including accused Abdul Wahid and as to the reason which prompted him to state before the Court that he was not interested to produce witnesses in defence and secondly; as to how accused Shadi Khan was prejudiced in his defence in view of abovementioned facts, therefore, in our considered view the learned trial Court in the given facts and circumstances of the case rightly rejected the miscellaneous application filed under section 540, Cr.P.C. by one of the learned defence counsel (Mr. Muhammad Noor). It is pertinent to note that the learned counsel, for the appellants Abdul Wahid and Abdul Samad during hearing of appeal did not make any submission that accused Abdul Wahid and Abdul Samad were prejudiced in their defence before the trial Court or that there was any justification despite refusal on their part, to permit them to record their statements on oath, therefore, the mere contention raised during arguments by the learned counsel for the appellant Shadi Khan that fair and reasonable opportunity of leading defence was not afforded to appellant Shadi Khan cannot be entertained for permitting him to appear in the witness-box as his own defence witness and to produce witnesses in defence, in view of the foregoing reasons, inasmuch as; even no such ground has been taken in the memo. of appeal, hence; the plea so taken during arguments being without any substance; cannot be acceded to.

8. Now reverting to the case on merits P.W. Mehtab Ahmed, Customs Inspector deposed at the trial that on 5-7-1999 information was received that a few persons intended to take/transport narcotics from Kharan route via Panjgoor towards Mand and the Deputy Superintendent Customs constituted a raiding party, headed by him and comprising of Hawaldar Hassan, Qasim and other customs staff and they at a distance of 30 kilometers at Kharan Road held a Naka and on the next following date i.e. 6th July at 11-30 a.m. a Pick-up came there from towards Kharan which was signalled to stop but the driver accelerated the Pick?up, therefore, they chased the Pick-up in their own vehicle and also made aerial firing and thereafter, firing was made on the rear tyres of the Pick?up resultantly; the Pick-up was stopped and he saw accused Abdul Wahid driving the Pick-up with whom Abdul Samad and Shadi Khan were sitting and they were apprehended by the custom staff and the vehicle was searched during the course whereof one kalashnikov, four spare magazines and 280 kalashnikov rounds and from the rear portion of the Pick-up 184 bags containing opium kept in sacks were recovered and each of the bag/packed contained two kilograms of opium, accordingly the arms and ammunition and recovered quantity of opium were taken into possession vide memo. Exh.P.1/A produced by the witness bearing his signature and that of the other Musheers. Also; the vehicle was taken into possession and the F.I.R. Exh.P.4/C was registered with the Customs Station on the same day. This witness also conducted investigation of the case, recorded statements of P.Ws. under section 161, Cr.P.C. and interrogated the accused. He further deposed that he took out samples from each of the pouches containing opium for chemical analysis and sealed the same into a separate parcel which has sent to the Chemical Expert for examination and report. He produced the report of the Expert as Exh.P.3/B, received by him after chemical examination by. the Expert and after completion of investigation filed challan in the learned trial Court as Exh.P.3/E. He also produced the pouches, each containing two kilograms of opium as articles in Court besides the Pick-up taken into possession as articles in the Court. `He identified the appellants as the accused from whose possession from search of vehicle illicit opium was recovered. The witness was subjected to cross-examination by the learned defence counsel for all the three accused and it was suggested to him that P.W. Qasim was inimical to accused Abdul Wahid (driver of the vehicle) and that houses of the private people were situated near to the place of incident and intentionally none of the residents of nearby houses was called to stand witness to the proceedings. Also; suggestions were put to the witness that tyre of the standing vehicle of the accused was burst and that the recovered opium was not weighed nor sacks of the recovered opium were sealed and that also the other passengers were sitting in the vehicle. Negative response to all these suggestions was given by the witness who explained that the recovered opium was weighed and for safe custody the recovered pouches numbering 184 were put in the iron boxes in which also the sacks were kept, produced by the witness as Article P.3. Further suggestions were given to the witness by the learned defence counsel that the accused were sitting as passengers in the vehicle and that he at the instance of P.W. Qasim has deposed against the accused were answered in negative.

Expert Report (Exh.P.3/D) shows that a duly sealed parcel bearing one seal containing suspected material in semi-solid form and dark red in colour was received in the F.S.L. on 17-7-1999 from the Collectorate of Customs and Central Excise Customs Station Panjgoor by hand relating to Case No.04/Cus/Siez/PJR/99-36, which was subjected to chemical test by applying Marquis Reagent Test anal during such process 4 grams of the suspected material was consumed which revealed that the samples of the suspected material obtained raw opium.

P. Ws. Muhammad Qasim (Sepoy Customs) and Hassan Jan (Hawaldar Customs) have fully corroborated to the version of P.W. Mehtab Ahmed and the cross-examination part of the evidence of these P.Ws. for convenience and reference is reproduced herein below:--

To P.Ws. Mehtab Ahmed and Hawaldar Hassan Jan defence plea was put in the terms that they have deposed at the instance of P.W. Qasim Khan and in cross-examination P.W. Qasim Khan relating to the defence plea answered that he is not related to Abdul Baqi and that he and accused Abdul Wahid have no enmity and prior to this occurrence he did not know accused Abdul Wahid to whom he recognizes from the day when he was apprehended for having been found in possession of the recovered opium, however, the witness admitted that Abdul Baqi is Jattak by caste and he is also a Jattak. He further denied that on account of dispute over a vehicle he and accused Abdul Wahid have enmity. The witness admitted the suggestion put by the learned defence counsel that the recovered opium was weighed alongwith the plastic and cloth and denied that they fired at the vehicle of the accused when it was standing. The- witness further denied that the other witnesses have deposed at his instance. In view of defence plea referred to above two D.Ws. were' produced by accused Abdul Wahid namely Rasool Khan (D.W.1) and Muhammad Ibrahim (D.W.2). Former D.W. deposed that on 17-1-1998 Abdul Wahid was found missing for three days from his house arid when he returned to his home he on inquiry disclosed that one Muhammad Khan Mengal booked his vehicle for Khuzdar and by playing fraud Muhammad Khan Mengal took his vehicle to Quetta by leaving Abdul Wahid at Khuzdar and, therefore, case was registered against Muhammad Khan Megnal and Abdul Baqi. According to the witness subsequently, some of their people went to the house of Abdul Baqi Jattak at Quetta where also a few Jattak people had gathered including Abdul Wahid and Qasim (P.W.1) and in such gathering it was asked from them as to why the vehicle of Abdul Wahid was snatched and the vehicle was restored to Abdul Wahid and thereafter, Qasim threatened them to take revenge of his disgrace and for such reason accused Abdul Wahid has been involved in a false case. Almost similar is the substance of evidence of D.W. Muhammad Ibrahim, who further explained that tribe's men of accused Abdul Wahid went to the house of Abdul Baqi at Quetta where the vehicle was found standing which was taken back forcibly and thereafter Abdul Baqi and his relatives threatened to take revenge and after that, false case was registered against accused Abdul Wahid, however; there is. a conflict in the version of the D.Ws. to the extent of the attributed disclosure made to them by accused Abdul Wahid and about the presence of Abdul Wahid and P.W. Qasim in the house of Abdul Baqi Jattak. According to D.W. Rasool Khan, Abdul Wahid disclosed to him that one Muhammad Khan Mengal by playing fraud took his vehicle to Quetta and that Abdul Wahid and Qasim besides other Jattaks were present in the house of Abdul Baqi at Quetta and ultimately; the vehicle was restored to Abdul Wahid, whereas; according to D.W. Muhammad Ibrahim, Abdul Wahid (accused) disclosed to him that Muhammad Khan Mengal hired his vehicle for two days to Khuzdar where Abdul Baqi, Qasim Jattack and Muhammad Khan snatched his vehicle. Moreover; this witness did not mention about the presence of accused Abdul Wahid and P.W. Qasim in the house of Abdul Baqi from where statedly possession of the vehicle was forcibly taken back. Both the D.Ws. as abovenoted on material particulars contradicted each other. It is also worthwhile to note that to none of the D.Ws. the defence story even in precise terms was put nor any documents relating to the case of alleged snatching of the vehicle of accused Abdul Wahid was produced/tendered in evidence by accused Abdul Wahid, although; ample opportunities for producing defence evidence was afforded to him at the trial.

It was argued by Mrs. Shabnam Allahdin that since prior information was stated to have been received by the Customs Authorities about the transportation of illicit narcotics through the said route, hence; it was obligatory on the part of the Customs Officers to have had associated private persons to witness the proceedings and for want of any effort made in such behalf, case of the, prosecution become doubtful and according to Abdul Rahim Mengal, the learned counsel for appellant Abdul Samad, provisions of section 103, Cr.P.C. were seriously violated on account of non-association of private persons to witness the search and recovery, consequently; non-compliance of such provisions render the proceedings as illegal and fatal to the case of the prosecution. Through the evidence of P.Ws. it has come on record that Naka was held/made at a distance of 25/30 kilometers on Panjgoor-Kharan Road from Panjgoor Town by the Customs Party specially arranged by the Deputy Superintendent Customs consequent upon receipt of a secret information about transportation of narcotics by certain persons through the said route and thus; in the given circumstances it was not known and even could not be said with certainty whether customs party must have had to come across with the event and, therefore, about an indefinite event and time it cannot be expected that any public person would like to go alongwith the customs party and will stay indefinitely with them on the road during Nakabandi made at a distance of 25/30 kilometers from Panjgoor Town and that too during the high summer temperatures frequently touching very high levels of mercury and undisputedly the area and the place on the highway where Nakabandi was made it cannot be expected that any private person from the public comprising of various tribes would like to take the risk to come in front of an accused, who also happen to be tribal members and will depose against them. Apart from such aspect of the case, the P.Ws. in cross-examination have stated in response to the suggestions put to them by the learned defence counsel that the place where the Naka was held, no house was situated nearby, hence; in these circumstances and in the given situation non-association of any public person by itself does not carry any adverse effect on search and recovery. In case of Fida Jan v. The State reported in. 2001 SCMR 36 the Honourable Supreme Court held that the provisions of section 103, Cr.P.C. has been excluded under the provisions of section 25 of the Control of Narcotic Substances Act, 1997 and the provisions .of section 20 of the Act are directory in nature, therefore, its non?compliance cannot be considered as a strong ground for holding the trial of the accused as bad in the eyes of law. Moreover; in the given circumstances of the case as also held by the Honourable Supreme Court in the above quoted judgment; non-compliance of the provisions of section 20 of the C.N.S. Act, 1997 will not have any adverse effect on the search proceedings conducted by the Customs Inspector. Applicability of provisions of section 103, Cr.P.C. on the one hand has been excluded in view of provisions of section 25 of Control of Narcotic Substances Act, 1997 as has been held by the Honourable Supreme Court and' secondly the same have no application in the instant case as no place was to be searched by the customs party, hence; the contention of the Abdul Rahim Mengal is without any substance. The case-law e.g. 1999 PCr.LJ 1946 cited by Mr. Abdul Rahim Mengal is quite distinguishable on facts and has no application in this case.

We have appraised the entire prosecution and defence evidence produced by accused Abdul Wahid quite in depth and carefully and have come to the conclusion that the prosecution successfully proved that on 6-7-1999 at about 11-30 a.m. when the customs party spotted a vehicle coming to Panjgoor from towards Kharan and when it came closer to them the raiding party signalled the said vehicle to stop but the driver of the said, vehicle instead of haulting the vehicle accelerated it, therefore, customs party chased the said vehicle and fired a few shots in the air in order to compel the vehicle being chased to stop but it did not stop, therefore, they burst the rear tyre of the vehicle by firing on it with the result that the vehicle was stopped and the accused Abdul Wahid was found present on the driver seat, whereas, accused Abdul Samad and Shadi Khan were sitting with him and they were apprehended. The driver of the vehicle disclosed his name as Abdul Wahid and two other occupants disclosed their names as abovesaid and were apprehended where after, the vehicle was searched from which arms and ammunition mentioned above besides 184 pouches containing opium kept in sacks were recovered from the rear portion of the vehicle and on being weighed it came to 368 kilograms and each of the pouch contained two, kilograms of opium accordingly; the arms and ammunition including the recovered quantity of opium and Pick-up were taken into possession by P.W. Mehtab Ahmed Customs Inspector vide Musheernama prepared by him in presence of P. Ws. Qasim Khan and Hassan Jan, who also inscribed their respective signatures on the Musheernama produced at the trial and thereafter F. I. R. was registered P. W. Mehtab Ahmed took out samples from each of. the pouches for chemical analysis and sealed the same into a parcel and sent the same to the Chemical Expert F.S.L., Quetta for examination and report. After test analysis of the samples he received the report from the Expert and tendered in evidence as Exh.P.3/D, which is to the effect, referred to hereinabove that the same as a result of chemical I analysis was found to be raw opium. On all the material particulars prosecution evidence is consistent, reliable and convincing and their testimonies could not be discredited or impeached in cross-examination by the learned defence counsel. Also; none of the accused has disputed or took the plea that they or either of them were/was not found present in y the Pick-up or were not apprehended by the customs party at the given site and time or that the opium was not recovered from the vehicle being driven by accused Abdul Wahid with whom the other two accused were found as occupants of the said vehicle. All that suggested to the P.Ws. was that on account of enmity of P.W. Qasim Khan (Customs Sepoy) with accused Abdul Wahid they have been falsely involved in the case, about which no other detail, particulars etc. were put to any of the P. Ws. in cross-examination which if be believed for the purpose of supposition, it cannot be said or conceived that a Customs Sepoy would be having the capacity to manage or plant a huge quantity of opium weighing 368. kilograms against accused Abdul Wahid and will also involve the other C innocent persons in the case as well and for the sake of such alleged enmity of a Customs Sepoy with an accused, the Customs Inspector and the Deputy Superintendent Customs will go to an extent of forming a raiding party and will plant a huge quantity of narcotics. The defence plea put to the P.Ws. at the face of it appears to be highly misconceived and even improbable in the facts and circumstances of the case. Also; it appears that at the stage of prosecution evidence none of the accused was definite about the exact nature of the plea to be substantiated by him in defence and, therefore, for such reason the defence story introduced by accused Abdul Wahid was not put even in precise words to any of the P.Ws. and even subsequently; when the case was fixed and adjourned at least twice for the statement of accused Abdul Wahid and Shadi Khan they did not appear in the witness-box in their own defence and ultimately; refused to record their statement on oath. Accused Abdul Wahid produced two D.Ws. and their versions have been discussed hereinabove which are inter se conflicting on material particulars and also the defence evidence produced by accused Abdul Wahid appears to be afterthought, misconceived and baseless, hence; the same has been rightly discarded by the learned trial Court. Moreover; it cannot be believed that on account of attributed dispute over the vehicle, P.W. Qasim Khan (Customs Sepoy) was in a position or could have planted such a huge quantity of opium against accused Abdul Wahid and will go to an extent even involving other persons as well in the case. The accused while under examination by the learned trial Court under section 342, Cr.P.C. have not disputed that on 6-7-1999 at about 11-30 a.m. on Panjgoor-Kharan Road they were found in occupation of a Pick-up by the Customs Party and the vehicle was being driven by accused Abdul Wahid and that they were arrested by such party but they each denied that opium was recovered from the Pick-up, who also took the stand that the tyre of the standing vehicle was burst by the customs staff. Accused Abdul Wahid not only that he did not dispute that at the relevant time he was driving the vehicle, but also it appears in the light of the defence evidence that he was the owner of the vehicle as well, with whom admittedly the other two accused Abdul Samad and Shadi Khan were sitting when they were apprehended by the customs staff and on search of the vehicle besides arms and ammunition 368 kilograms of opium was also recovered.

In an identical case and almost under similar circumstances relating to the case of Qurban and others v. The State reported in 1996 SCMR 1894 considered by the Honourable Supreme Court on appeal from the judgment of Federal Shariat Court and it was held with reference to the appraisal of evidence that accused at the time of recovery of heroin were travelling together in the Jeep which was owned by one of them and, therefore, in the circumstances of the case huge quantity of 180 bags of heroin could not be foisted to falsely implicate the accused, and, there was no evidence available on record to show that the accused who owned the Jeep was of tender age at the time of commission of crime who appeared to be of mature age capable of having understood the legal consequences of the heinous offence, therefore, he did not deserve any leniency on the ground of young age. It was further held that all the four accused having acted in unison were equally responsible for the commission of the crime and had been suitably sentenced, consequently, their conviction and sentences were upheld in the circumstances of the case.

In the case of Shah Wali and another v. The State reported in PLD 1993 SC 32 (on appeal from the judgment of Honourable Federal Shariat Court) the Honourable Supreme Court having referred to the facts and circumstances of the case which showed that heroin was recovered from the front passenger seat of car occupied by the two accused it was held that heroin was in joint possession of the accused persons as it could not be said that none of the two was in possession or that only one was in possession and other had no concern with it, and; the contention that prosecution had failed to prove exclusive possession of either of the two accused was repelled.

As above discussed and held by us that the prosecution successfully proved that 368 Kgs. of opium was recovered from the Pick?up occupied by the appellants out of whom appellant Abdul Wahid was found driving the vehicle by the customs party and despite having been signalled to stop, speed of the Pick-up was increased by the driver, therefore, this vehicle was chased sharply by the customs party and in order to compel the driver of such vehicle to hault, they resorted to aerial firing, yet; it did not hold good, therefore, rear tyres of the Pick-up were fired at and the vehicle thus, was stopped and these facts further indicate that not only the driver of the vehicle but also the other two occupants of the vehicle (sitting with the driver) enjoyed active and conscious possession of the illicit opium otherwise there was no reason at feast for the other two accused to have had not compelled the driver to- stop/hault the vehicle on having been signalled to stop by the customs party which laid Naka on the highway and thus, by no stretch on the basis of available material it can be said that the other two accused (Abdul Samad and Shadi Khan) were bona fide occupants but were having conscious possession alongwith driver of the vehicle from which huge quantity of opium was recovered. Moreover, it has come on record that the specified arms and ammunition were recovered from the front cabin of the Pick-up which is an added supportive reason showing that illicit articles were lying in the vehicle and were within the conscious possession and control of all the three accused hence in view of 'foregoing discussion and reasons, the principle laid down by the Honourable Supreme Court in the above quoted reported judgments equally apply in this case as well. Nothing was brought on record by the accused persons to show their bona fides in view of the proved facts of the case nor accused Abdul Wahid through defence evidence, discussed herein fore was able to rebut the prosecution case and the other two accused failed to rebut or discharge the onus shifted upon them to prove their innocence, therefore, in our considered view the learned trial Court rightly convicted the appellants and were sentenced appropriately. The result is that these appeals being devoid of any substance, are dismissed.

N.H.Q./111/Q ???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.