ATTIQULLAH Versus State

MUHAMMAD IQBAL MAHAR, J.--- The appellants Attiqullah and Muhammad Akber have challenged their conviction under section 9(c), Control of Narcotic Substances Act, 1997 and sentence of life imprisonment with fine of Rs. 5,00,000/ each and in default of payment of fine they shall undergo S.I for six months more recorded by learned Special Judge (Narcotics) Shaheed Benazirabad vide Judgment dated 8.4.2015 in Special Case No. 191/2011 arising out of Crime No.10/2011, P.S. Excise D.I.O Camp Sakrand.

2. Briefly the facts of prosecution case are that on 8.5.201l at 1230 hours complainant Zulfiqar Ali Sheikh Excise Inspector along with his subordinate staff during checking the vehicles saw a Truck No. TJK-243 in which two persons were sitting in suspicious condition. The complainant party got them down. On inquiry, the person sitting on driver seat disclosed his name as Attiqullah appellant No.1 and the other disclosed his name as Muhammad Akbar appellant No.2 he further disclosed that he is cleaner of the Truck. From personal search of appellant No.1, complainant recovered Rs. 3500/- and from appellant No. 2, he recovered Rs.1500/- complainant party also took search of Truck and found a secret cavity in Oil Tank of the truck from where 16 bags of heroin each containing 1 kg and 20 bags of Charas each containing 1 kg were recovered respectively. The complainant separated 16 samples of Heroin and 20 samples of Charas from each bag each weighing 100 grams and sealed them for Chemical Analyzer, and remaining property was also sealed by him separately. Complainant prepared such mashirnama in presence of Excise Constables Khalid Hussain and Mashooq Ali and brought the accused and property at D.I.O camp Sakrand where he lodged the FIR.

3. The learned trial Court after completing formalities framed charge against the appellants to which they pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution examined P.W-1 complainant Excise Inspector Zulfiqar Ali Sheikh at Ex.12 he produced mashirnama of arrest and recovery at Ex. 12-A, FIR at Ex.12-B, attested Photostat copy of departure and arrival entries at Ex.l2-C and Chemical report at Ex. 12-D, PW No. 2 mashir Excise Constable Khalid Hussain at Ex. 13, thereafter learned incharge D.P.P closed the side of prosecution vide statement at Ex. 14.

5. Statements of appellants/accused were recorded at Exhs. 15 and 16, in which they denied the allegations and pleaded innocence. They examined themselves on Oath at Exhs. l7 and 18, but did not examine any witness in their defense.

6. The learned trial Court after hearing the learned counsel for appellants, I/C DPP and appraising the evidence convicted the appellants as mentioned above.

7. Learned counsel for the appellants contended that the appellants accused are innocent and have been falsely involved in this case by the complainant; that the complainant has acted as Investigating Officer of his own FIR which is illegal in law; that the remaining substance was not produced before learned trial Court at the time of recording of evidence which is fatal for the prosecution case as prosecution would be deemed to have failed to prove recovery of alleged remaining narcotics; that all the witnesses are police officials and no private person has been cited as a witness in the case, therefore, he submitted, the case of prosecution is not free from doubt and the benefit of which has to be extended to the appellants by acquitting them from the charge. In support of his arguments, he relied upon case of Zahoor Ahmed v. The State reported in 1995 PCr.LJ 1715 and case of Muhammad Siddiq v. The State reported in 2011 YLR 2261.

8. Conversely, the learned A.P.G while refuting the contentions raised by learned counsel for the appellants argued that huge quantity of Heroin and Charas was recovered from the Truck which was in possession of appellants and such huge quantity of Heroin and Charas being expensive could not be foisted upon them without any motive or enmity which the appellants have failed to prove during the trial. He further contended that official witnesses are good witnesses as any other unless some animosity is shown against them and there is no material contradiction in the evidence of prosecution witnesses, therefore, the findings of trial Court are unexceptionable.

9. We have heard the learned counsel, Additional Prosecutor General Sindh and perused the record available before us and case laws cited at the Bar.

10. A perusal of record reflects that the appellants/accused were arrested while they were in the Truck No: TKJ-243, from the secret cavity whereof 16 kg Heroin and 20 kg Charas were recovered. Appellant Attiqullah was sitting on driving seat of the truck while appellant Muhammad Akber was sitting beside him and disclosed that he was cleaner of the truck. The prosecution has examined complainant Excise Inspector Zulfiqar Ali and mashir Excise Constable Khalid. Hussain, both the witnesses have fully supported the prosecution case and have categorically deposed that the appellants were arrested at DIO camp Sakrand and Heroin and charas were recovered from the said truck. In order to prove the departure from Excise P.S and return at P.S., the complainant has produced attested Photostat copies of such entries as Ex 12-C the witnesses have deposed that from each packet, sample of 100 grams was separately sealed and sent to Chemical Analyzer for examination and report. The complainant has produced report of Chemical. Analyzer as Ex. 12-D which shows that 36 packets were received at Laboratory on 9.5.2011, the next day of the incident, in sealed condition and as per result of the test, packet Nos. 1 to 16 contained powder of Heroin and packet Nos. 17 to 36 contained Charas. Both the witnesses were cross-examined by learned defense counsel at length, but he could not obtain any material contradiction making the case doubtful. Another aspect of the case is that the truck was coming from Sakrand side and it was empty, and both the appellants, who are resident of Quetta Baluchistan, were sitting in it as driver and cleaner which means they both were in exclusive possession of the truck wherefrom the heroin and charas were recovered. The possession of the contraband items is proved beyond any doubt. Both the appellants are equally responsible for possessing the narcotics recovered from secret cavity of the truck. Furthermore, it has come in evidence that it were both the appellants, who pointed out secret cavity, which clearly shows that they were in knowledge of the heroin and the charas concealed there and they do not claim the ignorance about the availability of contraband item in the truck. Not only this but the perusal of statements of accused recorded under sections 342 and 340(2), Cr.P.C. reveals that they have admitted their presence in the truck at the time of incident, however, their plea is that they took lift in the truck from Darbar Hotel Daulatpur and the truck was being driven by one Jahangir, who was released by the Excise Police and at his place the appellants were involved in the case. They produced no witness to prove their plea. More so, their plea is self contradictory as on the one hand they stated that they were doing labour in Daulatpur town and on the Other hand appellant No. 2 Muhammad Akber deposed in his statement on Oath (cross examination) that 'firstly we came to Sukur at Khilji goods transport who sent us to Daulatpur at Quetta Darbar goods'.

11. Now, we are reverting to the contentions of learned counsel for the appellants that the complainant acted as investigating officer of his own FIR and that no private person has been cited as witness except Excise Police; his submission has no force as it has already been held by Honourable Supreme Court in the case of (Zafar v. State) reported in 2008 SCMR 1254 that 'Police officer was not prohibited under the law to be a complainant if he was witness of an offence. Such officer could also be an investigating officer so long as it did not prejudice accused person' and that the 'Police employees are competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are police employees', therefore, the contentions of learned counsel for appellants need no further comments.

12. So far as, the contention of learned counsel for the appellants/accused that the case property was not produced in Court is concerned, it is not correct either we have seen the evidence, it is clear that the remaining narcotics has been produced, it has been stated by both the witnesses that 'Accused and property present in the Court are same'. Not only this but at the request of learned counsel for the appellants, property present in Court was de-sealed and later on it was re-sealed and such note is also available in the last part of deposition of complainant which is reproduced 'Note: Property is de-sealed in Court again re-sealed in presence of incharge DPP for the State and learned defense counsel in open Court'. This clearly shows that the property was produced before the Court at the time of examination of prosecution witnesses and was available there, therefore, the contention of learned counsel for the appellants that property was not produced is without any substance. Furthermore, both the appellants/accused are residents of Quetta Balochistan and the complainant and mashir are residents of Province of Sindh, there is no enmity between them which may prompt them to falsely implicate the appellants. There are only two witnesses who have supported each other on material points and there are no major contradictions in their evidence. The case law relied upon by learned counsel for the appellants/accused has no relevancy with the facts of instant case.

13. Keeping in view the above discussion and the case law referred to above, we are of the firm view that the prosecution has proved its case against the appellants beyond any shadow of doubt, therefore, the impugned judgment does not suffer from any infirmity, hence the same is maintained. Consequently the instant Appeal No.D-42/2015 being devoid of merits and is dismissed.

HBT/A-49/Sindh Appeal dismissed.