ZAFAR vs THE STATE

' MUHAMMAD AKHTAR SHABBIR, J.--- This criminal appeal by leave of the Court, is directed against the judgment, dated 8-7-2003 passed by a learned Division Bench of the High Court of Sindh at Karachi whereby Criminal Appeal No,100 of 2002 of the appellant against his conviction and sentence by the trial Court was dismissed.

2. A criminal case F.I.R. No,25 of 1999 (Exh..P.2) dated 16-12-1999 under section 9(c) of the Control of Narcotic Substances Act,1997 was registered against the appellant at Police Station ANF-II, Karachi at the instance of Liaqat Ali Zaidi, S.-I. (P.W.2). According to the prosecution case, a mobile party of Anti-Narcotic Force headed by Syed Liaqat Ali Zaidi, S.-I., on the tip from an informer, overpowered a person carrying a nylon bag in his hand. The person introduced himself as Zafar (present appellant). On search of the bag, 11 plastic balls containing opium were found. The opium recovered was weighed at the spot and each ball weighed 1 kilograms (total 11 kilograms of opium). Out of the sanie 100 grams from each packet was separated and sealed for analysis of the Chemical Examiner. During investigation at the spot, Zafar accused also disclosed about he presence of his associate at Pankha Hotel carrying huge quantity of opium. On the pointation of Zafar accused, a person namely Fazal Ahmed carrying a nylon bag containing 12 Kgs. Of opium was arrested. Separate cases were registered against both the accused persons.

3. The appellant was sent up for trial before the learned Judge, Special Court Narcotic Substances, Karachi Division, who by judgment, dated 15-4-2002 convicted him under section 9(c) of the Control of Narcotic Substances Act, 1997 (C.N.S.A.) and sentenced to imprisonment for life with a fine of Rs,1,00,000 or to undergo imprisonment for one year in default of payment of fine. However, benefit of section 382-B, Cr.P.C. Was extended in .His favour. He preferred Criminal Appeal No,100 of 2002 which was dismissed by a learned Division Bench of the High Court of Sindh, vide impugned judgment, dated 8-7-2003.

4. The learned counsel for the appellant contended that the occurrence has not taken place within the jurisdiction of the Police Station ANF-II, Muhammad Ali Society where on the day of occurrence P.W. Syed Liaqat Ali, 5.-i. Was posted and he was not authorized to arrest the appellant and register the case in his own police station; that the Investigating Officer himself is the complainant as well as the witness of recovery; that no independent witness from the public has been associated by the police (A.N.F.) and all the witnesses of occurrence and recovery are the Government emplOyees and they had deposed against the appellant just in their subordination. Their testimony is not worth credence. Further contended that the provisions of Code of Criminal Procedure are applicable to the cases of C.N.S.A.; that the alleged recovery of narcotic material has been effected in conflict with section 103, Cr.P.C.; that the appellant has been involved in the case malafidely letting off the real culprit (owner of the narcotic material); that the alleged narcotic material has been recovered from Zafar appellant and Fazal Ahmad co-accused during one transaction but both have been involved maliciously in two different F.I.Rs, He lastly contended that the appellant being of tender age is entitled to leniency.

5. While on the other hand, the learned counsel for the State (A.N.F. Establishment) vehemently opposed the arguments of the learned counsel for the appellant and supported the judgments of the Courts below.

6. We have heard the arguments of the learned counsel for the parties and perused the record with their kind assistance.

7. A huge quantity of narcotic material has been recovered from possession and pointation of the appellant on the day of occurrence on receipt of information from an informer and the Investigating Officer Syed Liaqat Ali accompanied by Ghulam Abbas, Inspector, Siraj Khan Pervez Shah etc., while on patrolling duty proceeded to the place of occurrence and intercepted Zafar appellant from whose search a nylon bag was taken into possession. On checking opium in 11 plastic balls was found in the bag. On weightage each packet was found to be of one kilogram and total 11 kilograms of opium was recovered and taken into possession. At the time of occurrence and arrest of the appellant Zafar, the employees who were the members of the patrolling party were associated in the proceedings of recovery. They were the natural witnesses. Syed Liaqat Ali, S.-I.

Categorically stated that he had invited the members of the public to join the proceedings but they excused and there was no option left except to complete the proceedings of arrest and recovery in the presence of members of the raiding party. 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 the police employees as laid down in the cases of Muhammad Azam v. The State PLD 1996 SC 67, Muhammad Hanif v. The State 2003 SCM R 1237, Riaz Ahmad v.

The State 2004 SCM R 988 and Naseer Ahmad v. The State 2004 SCM R 1361.

8. As to the argument of non-performance of provisions of section 103, Cr.P.C. It would be appropriate to refer to section 25 of C.N.S.A. Which is reproduced hereinunder:--- "25. Mode of making searches and arrest.--- The provisions of the Code of Criminal Procedure, 1898, except those of section 103, shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22, and 23 to all warrants issued and arrests and searches made under these sections."

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 SCM R 1367, Fida Jan v. The State 2001 SCM R 36 and Rasool Bakhsh v. The State 2005 SCMR 731.

9. As regards the second argument of learned counsel for the appellant that the case has not been registered at A.N.F. Police Station where the occurrence had taken place, section 22, C.N.S.A. Has empowered the authorized Police Officer to seizure and arrest in public place. The section reads as under:- "22. Power to seizure and arrest in public place.--- An officer authorized under section 21 may---

(a) seize, in any public place or in transit, any narcotic drug, psychotropic substance or controlled substance in respect of which he has reason to believe that an offence punishable under this Act has been committed, and, along with such drug substance or any other article liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug, psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him "

Even the provisions of sections 20 to 22 of C.N.S.A. Being directory, non-compliance thereof would not be a ground for holding the trial/conviction bad in the eyes of law. On this ground, the conviction of the appellant cannot be set aside. Reference in this behalf can be made to the cases of Fida Jan v. The State 2001 SCM R 36; State through A.-G., Sindh v. Hemjoo 2003 SCM R 881, Karl John Joseph v. The State PLD 2004 SC 394 and Muhammad Younas y. Mst. Perveen alias Mano and others 2007 SCM R 393, wherein it is observed that where provisions of C.N.S.A. Are directory in nature, non-compliance of the same is not fatal. Even otherwise no evidence has been produced to establish that the place of recovery and arrest was not within the jurisdiction of the police station concerned.

10. The learned counsel argued that the appellant is young man of tender age and is entitled to lesser penalty, the answer would be if the quantity of the narcotic material would not have exceeded ten kilogram, then the Court was empowered to reduce the sentence. In the case in hand, 11 kilograms of opium has been recovered from Zafar appellant which exceeds 10 Kgs. And as per proviso to section 9(c) of C.N.S.A., such cases are punishable with sentence not less than imprisonment for life.

11. So far as the objection of the learned counsel for the appellant that the Investigating Officer is the complainant and the witness of the occurrence and recovery, the matter has been dealt with by this Court in the case of State through Advocate-General Sindh v. Bashir and others PLD 1997 SC 408, wherein it is observed 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. Though the Investigating Officer and other prosecution witnesses are employees of A.N.F., they had no animosity or rancor against the appellant to plant such a huge quantity of narcotic material upon him. The defence has not produced any such evidence to establish animosity qua the prosecution witnesses. All the prosecution witnesses have deposed in line to support the prosecution case. The witnesses have passed the test of lengthy cross-examination but the defence failed to make any dent in the prosecution story or to extract any material contradiction fatal to the prosecution case. The prosecution has been successful to bring home the guilt of the appellant to the hilt by placing ocular account, recovery of narcotic material, the Chemical Examiner report G.1, Exh.P.3. The learned counsel for the appellant has not been able to point out any error of law in the impugned judgment and the same is unexceptionable.

12. For what has been discussed above, the appeal being devoid of any merit is dismissed.#TE##