Mian GUL BACHA KHAN and anothers vs THE STATE

IJAZ-UL-HASSAN KHAN, J.-The appellants Mian Gul and Bakht Zamin were tried by learned Additional Sessions Judge-II/Judge Special Court, D.I. Khan alongwith acquitted co-accused Muhammad Parvez for an offence under section 9 of the Control of Narcotics Substances Act, 1997.

At the conclusion of the trial, vide judgment, dated 25-3-2004, the appellants were convicted under section 9 of the Act (ibid) and sentenced to suffer life imprisonment in addition to payment of Rs,8,00,000 as fine in lieu thereof, to further undergo additional imprisonment for five years each.

Benefit of section 382-B, Cr.P.C. Was also extended to them. Muhammad Parvez was, however, acquitted by extending him the benefit of doubt. The appellants have challenged their conviction and sentence through instant Criminal Appeal No,38 of 2004.

2. The prosecution story as spelt out in the F.I.R. Is, that pursuant to spy information stated to have been received by the Customs Authorities, a raiding party headed by Samiul Hag. Assistant Collector, Customs, Kohat was constituted. The party conducted `Naqabandi' at Ramak Check Post on 13-1-2002. At 2 PM a Truck bearing registration No,PRC-2414 was stopped which was being driven by Mian Gul while Bakht Zamin and Muhammad Parvez were occupying front seat. The Truck was loaded with Pak-made marble tiles. On cursory inspection, foreign made charas was detected.

All the three persons and the Truck were taken to the Customs Office, D.I. Khan where the truck was searched thoroughly and 2870 kilograms charas wrapped in 69 bags was recovered concealed under the marble tiles. A small quantity i,e, 5 grams was separated out of the recovered charas for chemical analysis. A `murasila' was drafted by complainant Mumtaz Khan, Deputy Superintendent Customs Check Post, Ramak and sent to Police Station for registration of case.

3. The prosecution in order to prove its case produced six witnesses Mumtaz Khan, Deputy Superintendent (P.W. 1), Mumtaz Khan, Inspector Customs (P.W.2), Muhammad Azim Inspector Customs (P.W.3), Fahimullah Sepoy Customs (P.W.4), Abdul Waheed Khan Inspector Customs (P.W.5) and Sheraz Khan Inspector Octroi Post, Peshawar (P.W.6).

4. When examined under section 342, Cr.P.C., the accused repudiated the prosecution allegations and claimed to have been charged falsely. They stressed that in fact the bags under the marble tiles were containing marble chips. The same were not even opened and a fake case was fabricated against the appellants for ulterior motive. They neither appeared as their own witnesses on Oath as required under section 340(2), Cr.P.C., nor produced defence evidence.

5. The learned trial Judge after appraisal of the evidence on record found the appellants guilty of the charge and convicted and sentenced them as noted above.

6. In support of appeal, Mr. Gauhar Zaman Khan Kundi, Advocate for the appellants submitted inter-alia, that learned trial Court had not appreciated the material on record in its true perspective; that failure on the part of officials of the staff of Customs Department to conduct proceedings on spot and leading the Truck to the Customs Office situate on Tank Road, D.I. Khan at a considerable distance for the purpose of alleged recovery, adversely reflects upon the entire exercise and makes the recovery highly doubtful; that a meager quantity of alleged contraband was sent to FSL, Peshawar for chemical analysis which makes the recovery doubtful and does not connect the appellants with the guilt; that as per story of the prosecution, officials of customs staff had prior information that narcotics/charas would be smuggled through Truck No,PRC-2414, however, no effort was made to obtain a warrant for arrest/search as contemplated, by sections 20 and 21 of the Control of Narcotics Substances Act, 1997; that the alleged recovery has not been witnessed by an independent person, rather officials of the same Department have been cited as witnesses which is violative of the minimum safeguards provided by law and that the complainant of the case being the Investigating Officer also, makes the investigational exercise partisan, unilateral, prejudiced, partial and unreliable.

7. Conversely, Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State controverted the arguments raised by the learned counsel for the appellants, maintaining that the appeal is liable to be dismissed because the conviction was based on solid evidence; that the prosecution has proved its case beyond any shadow of doubt and the minor discrepancies appearing in the prosecution evidence do not damage the case of prosecution on its material points.

8. Huge quantity of charas (foreign-made) weighing 2870 kilograms has been recovered in this case. The apprehension of Truck on 13-1-2002 at Ramak Check Post has not been denied. However, it is maintained that the bags lying under the marble tiles contained marble chips. The bags were not even opened and charas was planted on the appellants and they were involved in a false case.

The contention is not tenable. It cannot he believed that such a large quantity of contraband material shall be planted by the customs authorities in the case just to implicate the appellants for nothing. There may be cases where custom officials might be motivated to involve some innocent person but such object can be achieved conveniently by planting few grams of charas but not quantity like 2870 kilograms of charas. It is an accepted principle of law that when an accused at criminal trial takes a specific plea, the onus invariably shifts and he is required to produce evidence and prove his plea or at least his plea should be supported by the attending circumstances and it should not be unfounded altogether. The appellants have produced no evidence in defence to show that the bags under the tiles were in fact containing marble chips but the same were not opened and the charas was foisted on the appellants by the Customs Authorities. The mere assertion of the appellants regarding their false implication in the case, without a positive attempt on their part to substantiate the same, is of no consequence. The prosecution has produced six witnesses to substantiate the charge. The witnesses have been subjected to lengthy and searching cross-examination but nothing favourable to the appellants could be extracted from them. The mere fact the witnesses belong to Customs Department and therefore, have falsely deposed against the accused, cannot be ground for discarding their testimony when no reason has been given by the appellants for their false implication, Officials witnesses are as good as private witnesses. In this context, .There is a wealth of case-law on the point that officials witnesses are competent witnesses to attest a recovery memo.

9. The submission that compliance of the provisions of section 103, Cr.P.C. Was not made in the case as no two respectable persons of the locality were associated, has no force firstly for the reason that provision of section 103, Cr.P.C. Has been excluded under the provision of section 25 of the Control of Narcotics 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 that the trial of the appellant is bad in the eye of law whereas on the other, it is not denied that the main aim .And object of enacting of section 103, Cr.P.C. Is to ensure that the search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression. It never meant to disbelieve the statements of official witnesses in any other circumstance. In this regard, reliance can be placed on case captioned Fida Jan v. The State (2001 SCM R 36).

10. The argument of learned counsel for the appellants regarding various hats simultaneously worn by the Investigating Officer has also failed to impress us. In State through Advocate General Sindh v. Bashir and others (PLD 1997 Supreme Court 408), it was held, "There is no legal prohibition for a police officer to be a 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. The Court will have to appraise the evidence produced by the prosecution as a whole and will have to form the opinion after evaluating the same."

11. Resultantly, the appeal being meritless is dismissed. Conviction and sentences recorded by the trial Court are maintained. The appellants shall be entitled to benefit of section 382-B, Cr.P.C.