MUHAMMAD MURAD Versus State
KHADIM HUSSAIN TUNIO, J.--- Through this Criminal Appeal, appellant has impugned judgment dated 28.06.2011 passed by the learned Sessions/Special Judge CNS, Shikarpur in Special Narcotic Case No.80/2011, whereby he has convicted the appellant for an offence punishable under section 9(c) of the Control of Narcotic Substances Act, 1997 and awarded him punishment to suffer R.I for life and to pay fine of rupees one million, in case of non-payment of fine amount to suffer S.I for six months more. Learned Special. Judge extended to the appellant benefit of section 382-B, Cr.P.C.
2. Precisely, the prosecution case is that on 09.02.2011 at 1000 hours, complainant Qamaruddin Siyal Excise Inspector, I/C Excise Police Station Circle Shikarpur lodged the FIR at P.S, stating therein that; he acting on tip off regarding transportation of charas; took staff members, boarded in vehicle, left the Police Station vide entry No.02 at 7:15 hours and came on Shikarpur-Jacobabad road and started checking vehicles near sui gas pipe line, at 7.30 a.m. they intercept a truck with half body having registration No. QA-3447 driven by a single person. On query he gave his name as Muhammad Murad son of Noor Muhammad Brohi, resident of Village Shahnawaz Khan Brohi, originally Siryab Road Quetta. Complainant appointed EJ Imdad Ali and ED Amanullah Khan as Mashirs and on searching the truck, recovered 120 slabs of charas each slab weighing 01-K.G total 120 Kilograms, from the secret cavities of the truck and 250 grams from each slab taken out were sealed in 120 packets at the spot for samples while remaining charas was sealed separately. On further search, six currency notes of Rs.100/- and one currency note of Rs.50/- total Rs.650/- were also recovered from the side pocket of Muhammad Murad's shirt. Such Memo of arrest and recovery was prepared in presence of Mashirs. Thereafter, appellant and recovered property were brought at Police Station, where the complainant lodged the FIR against the appellant on behalf of the State.
3. After usual investigation challan was submitted and the appellant was sent up to face the trial.
4. Charge was framed as Ex.2 to which appellant did not plead guilty and claimed to be tried vide plea at Ex.3.
5. To prove its case the prosecution has examined two witnesses i.e. PW-1 complainant Qamaruddin Siyal as Ex.05, who produced Memo of arrest and recovery, extracts of entries of departure and arrival, report of Chemical Examiner as Ex.06 to 09 respectively and PW-2 Mashir EJ Imdad Ali as Ex.10. Thereafter prosecution closed its side vide Ex.11.
6. Statement of appellant Muhammad Murad under section 342, Cr.P.C. was recorded as Ex.12, wherein he denied the allegations levelled against him by the prosecution and stated that he had come to Shikarpur and was going to Gambat District Khairpur Mirs to get his eyes treated there and when he arrived at Rustam Chowk he was way laid by Excise Police, who took him to P.S and booked in this case. He claimed to know nothing about the truck or the Narcotic substance lying therein. He further added that truck and charas were recovered by Excise Police from someone else and foisted upon him by making him escape goat, he, however, did not examine himself on oath nor did he adduce any evidence in his defense.
7. Mr. Rafique Ahmed K. Abro learned Advocate for the appellant inter alia contends that he is innocent; that the trial Judge while awarding the conviction has not considered the contradictions made in the evidence of the PWs; that no independent witness has been cited by the prosecution as witness or mashir and both the PWs i.e the complainant and Mashir are police personnel; that the charas has been foisted upon the appellant by the Excise Police; that the complainant Qamaruddin Siyal, who is witness, has himself investigated the subject case crime and that truck and charas were recovered by. Excise Police from someone else and foisted upon the appellant by making him escape goat. He, therefore, prays for acquittal, of the appellant.
8. Mr. Khadim Hussain Khooharo, learned DPG for the State has vehemently opposed the acquittal of the appellant on the ground that appellant is nominated in the FIR; that huge quantity of charas has been recovered from the possession of the appellant; that the offence committed by the appellant is heinous one and against the society; and that there are some minor ignorable contradictions in the evidence of PWs.
9. We have given clue consideration to the submissions of learned counsel for the appellant and the learned D.P.G. and have perused the evidence available on the record.
10. From the perusal of the record it reveals that the prosecution to bring home the guilt of the appellant examined two witnesses namely P.W Qamarddin Siyal Excise Inspector and P.W-2 EJ Imdad Ali having also produced memo of arrest and recovery, extracts of entries of departure and arrival and report of Chemical Examiner. The testimony of both the P.Ws is in-line with each other. Recovery of 120 kgs of Charas from the secret cavities of the truck No.QA-3447 used for transportation of the recovered narcotic substance, which was being driven by the appellant, has been proved as there are no material contradictions or any other material discrepancy in the prosecution; and they were competent witnesses like any other independent witness and their evidence cannot be discarded merely for the reason that they were the police officials. The Hon'ble Supreme Court of Pakistan in the following cases has held that:-
"It is now well settled that; police officials are as good witnesses as any other citizen and unless any mala fide is established against them, their deposition cannot be brushed aside simply on the bald allegation that they belong to the police department a responsible for maintaining law and order" [Re; Muhammad Naeem alias Naeem v. The State (1992 SCMR 1617)].
"The police employees are the competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that; they are police officials. As laid down in the cases of Muhammad Azam v. The State (PLD 1996 SC 67), Muhammad Hanif v. The State (2003 SCMR 1237), Riaz Ahmed v. The State (2004 SCMR 988) and Nasir Ahmed v. The State (2004 SCMR 136).
"It has also been held by the honourable apex Court in the above referred case that; it would mean that applicability of section 103, Cr.P.C. in the narcotic cases has been excluded and non-inclusion of any private witness is not a serious defect to vitiate the conviction. Reference in this context can be placed on the cases of Muhammad Shah and others v. The State (PLD 1984 SC 278), State v. Muhammad Amin (1999 SCMR 1367), Fida Jan v. The State (2001 SCMR 36) and Rasool Bux v. The State (2005 SCMR 731).
11. Moreover, the testimony of the P.Ws has been corroborated by the positive report of the Chemical Analyst to whom the entire recovered narcotic substance was promptly sent, which was received by him on 10.02.2011 i.e on the following day. Then is sufficient convincing oral and documentary evidence viz. statement of P.Ws and Chemical Examiner's report on the record to prove the prosecution case. The appellant's stance that the police had falsely involved him in the case by planting the recovery of charas from him is untenable as no justification existed on the record to falsely involve the appellant in this case involving such huge quantity of narcotic substance weighing 120 Kgs. So much so, the appellant has not produced any evidence in support of his defence plea. Even he did not opt to appear in his defence under section 340(2), Cr.P.C. The learned counsel for the appellant has failed to point out any mala fide on the part of police officials with the appellant.
12. With regard to the contention of the learned counsel for the appellant that the investigating officer is the complainant and witness of the occurrence and recovery, it may be observed that there is no prohibition for Police in becoming the investigating officer, the complainant and the witness if that has not prejudiced the case of accused and in the case in hand no animosity or rancor of the investigating officer and other P.Ws against the appellant has been alleged. The honourable apex Court, in the case of State through Advocate General Sindh v. Bashir and others (PLD 1997 SC 408) has been pleased to observe that a police officer is not prohibited under the law to be complainant if he is a witness to the commission of an offence and also to be an investigating officer, so long as it does not in any way prejudice the accused person.
13. For the foregoing reasons we are of the view that the prosecution has established the guilt of the appellant beyond shadow of any doubt. Learned counsel for the appellant has not been able to point out any error or illegality or misreading or non-reading of evidence in the impugned judgment of the Trial Court. We do not see any merit in the appeal. Above are the reasons of our short order dated 19.04.2017 whereby the appeal was dismissed.
JK/M-144/Sindh Appeal dismissed.