ZAFAR IQBAL Versus State
SAHGEER AHMAD QADRI, J.--- Brief facts in order to dispose of this criminal appeal are that as per F.I.R. (Exh.PC/1) got recorded on the basis of complaint (Exh.PC) lodged by Waqar Ahmed Kiani, Excise Inspector/complainant mentioning that on 15-3-2005 at 5-00 p.m. he along with Sarfraz, Abdul Hameed, Tora Baz, Amjad Hussain, Muhammad Waseem and Rashid Iqbal, all excise Constables was present at Margala Check Post for checking of narcotics, etc. when a Toyota Hi-ace bearing registration No.LPT-4807 from Peshawar side was stopped and checked. On suspicion from the roof top of said vehicle two sacks knitted with plastic wire were found lying which were owned by two persons while sitting on the first seat of the vehicle in front of its gate who subsequently disclosed their names Zafar Iqbal son of Zahoor Ahmed, Caste Jat, resident of Nowshera Sansi, Police Station Sabaz Mandi, Gujranwala (the present appellant) and Arshad Ali son of Fazal Kareem, Caste Kumhaar, resident of Nai Abadi, Mohallah Nowshera Sansi, Gujranwala. On un-loading both the sacks were checked one by one. First sack was opened on the pointation of Zafar Iqbal and on checking it was found 10/10 packets of poppy heads wrapped in polythene bags when weighed it found 20 K.G. Out of the recovered substance small quantity from each packet total 10 grams was secured as sample parcel for chemical analysis whereas the remaining quantity of poppy heads was sealed into another parcel. Second sack was also got opened by Arshad Ali, accused and same quantity of poppy heads was also recovered for which separate complaint was lodged. On this report the instant case was registered.
2. After investigation, report under section 173, Cr.P.C. was submitted in court where the appellant was charged to which he pleaded not guilty and claimed trial.
3. Prosecution in order to bring home the charge against the appellant got examined five witnesses. P.W.1. Waqar Ahmed Kiani, Excise Inspector who is the complainant of the F.I.R. (Exh.PC/1) supported the contents of the F.I.R. P.W.2. Muhammad Yar, Constable-2815 of Police Station Taxila stated that on 21-3-2005 Muhammad Ramzan, HC/Moharrir handed over him one sealed parcel containing poppy heads for onward transmission to the office of Chemical Examiner which he deposited on the same day. P.W.3. Muhammad Ramzan, HC-125/Moharrir stated that on 15-3-2005 he received sealed parcels containing poppy heads handed over by Muhammad Altaf, S.-I./Investigating Officer for keeping them in safe custody in police Malkhana. He further stated that on 21-3-2005 he handed over one sealed sample parcel containing poppy heads to Muhammad Yar, Constable for chemical analysis to the office of Chemical Examiner. P.W.4. is also the recovery witness who deposed in between the lines of the F.I.R. (Exh.PC/1). The learned DDPP after tendering in evidence the report of Chemical Examiner (Exh.PE) closed the prosecution evidence. P.W.5. Muhammad Altaf, S.-I. conducted the investigation of the case. He took into possession the recovered poppy heads which was made into sealed parcel vide memo Exh.P1. He recorded the statements of the P.Ws. under section 161, Cr.P.C. and after preparing necessary police papers submitted challan in court.
4. After closure of the prosecution evidence the learned trial Court examined the accused Zafar Iqbal under section 342, Cr.P.C. wherein he simply denied the allegations. However, he did not appear in the witness box for recording his statement under section 340(2), Cr.P.C.
5. The learned trial court after conclusion of the trial vide judgment dated 17-12-2008 vide F.I.R. No.89 dated 15-3-2005 registered at Police Station Taxila, Rawalpindi under section 9(c) of the Control of Narcotic Substances Act, 1997 convicted and sentenced the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 to imprison-ment for life with fine of Rs.2,00,000 and in default of payment thereof to undergo further rigorous imprisonment for six months. Benefit of section 382-B, Cr.P.C. was, however, extended to the appellant.
7. Zafar Iqbal, appellant now has challenged the legality and propriety of his conviction and sentence through this criminal appeal.
8. Learned counsel for the appellant argued that the conviction and sentence passed by the learned trial Court against the appellant is against the law and facts of the case; that the statements of recovery witnesses were discrepant and contradictory to each other; that the learned trial Court did not appreciate the evidence led by the official witnesses although the alleged recovery was effected at a public place but no witness from the public was cited nor produced before the court thus whole of the recovery proceedings were doubtful.
9. Learned counsel for the appellant after raising above objections in his arguments submitted that he would not press the appeal on merits if the sentence passed against the appellant be reduced to the period already undergone keeping in view the report of Chemical Examiner according to which only traces of Morphine and Codeine were found in the poppy heads allegedly recovered from appellant's possession. Learned counsel argued that admittedly poppy heads do not contain the material which can be termed as opium rather these are the parts of the poppy plants after mowing the substance out of it; that as only traces of Morphine and Codeine were found by the Chemical Examiner, therefore, mere on the basis of weight of the recovered substance it cannot be said that it falls within the ambit of section 9(c) of the Control of Narcotic Substances Act, 1997.
10. On the other hand, learned Deputy Prosecutor General has vehemently opposed this criminal appeal on the grounds that huge quantity of 20 K.G poppy heads were recovered from the appellant's possession; that statements of the witnesses got recorded by the prosecution remained un-shattered during cross-examination; that the recovery was proved, report of Chemical Examiner as mentioned above is in positive and that no plausible defence has been led by the appellant, that the poppy heads are narcotic substance as defined in C.N.S.A., 1997, therefore, no ground is made out for lenient view in sentence nor it can be taken as the substance exceeds 10 K.G. and the learned trial Court has already provided minimum sentence provided for the offence. Prayed that this criminal appeal be dismissed.
11. We have heard the learned counsel for the parties and perused the record.
12. Although as mentioned above at the first leg of the arguments learned counsel for the appellant agitated some grounds for setting aside the impugned sentence and conviction of the appellant passed by the learned trial Court whereby he tried to point out certain discrepancies between the statements of the prosecution witnesses as well as he raised objection that no witness from public was associated in the recovery proceedings, therefore, recovery could not be believed but he subsequently be confined his arguments making the submission for reduction of the sentence keeping in view the report of the Chemical Examiner.
13. Admittedly if the facts of this case are seen according to the record 20 K.G. Poppy heads were recovered from appellant's possession and out of the recovered substance the complainant P.W.1. Waqar Ahmed Kiani, Excise Inspector secured 10 grams of substance as sample and sent the same to the office of Chemical Examiner through P.W.2. Muhammad Yar, Constable. If the report of the Chemical Examiner is seen it is specifically opined that "Crushed poppy heads which can be used to cause intoxication". On the back side of this report which was exhibited as Exh.PE before the learned trial Court as Exh.PE it is mentioned as under:--
"PHYSICAL. APPEARANCE
Consistent: Crushed poppy heads.
Colour: Brownish
Aroma: Poppy heads.
CHEMICAL TESTS FOR OPIUM CONTENTS
Test For Meconic Acid Traces.
Test for Sulphuric Acid Traces.
Test for Porphyroxin Traces.
Test for Alkaloids -------
(1) Morphine Traces.
(2) Codeine Traces."
No doubt all the chemicals forming part of these substances specially traces of Morphine and Codeine were found by the Chemical Examiner in the sample (test substance sent to the Chemical Examiner).
14. Sections 2 (s), (t), (v), (w) and (x) of C.N.S.A., 1997 are relevant for the purposes of defining the narcotic drug, opium and poppy straw. Under section 2(s) it is provided that narcotic drug means coca leaf cannabis heroin, opium, poppy straw and all manufactured drugs. The poppy straw are also included in the definition of opium as provided under section 2(t)(i). Under section 2(w) 'poppy straw' are shown all parts except seeds of opium poppy after mowing. If all these definitions are seen it is clear that poppy head/poppy straw are narcotic drug and offences relating to it are made punishable under sections 6, 7, 8 and 9 of the C.N.S.A., 1997. This question has already been discussed in Khair-ul-Rehman and others v. The State and others (PLD 2005 Lahore 440) delivered by Full Bench of this Court whereby the majority view was the same as observed by this Court mentioned above. For facility of reference relevant portion of the said judgment is hereby reproduced:--
"Under section 6 of the Control of Narcotic Substances Act, 1997 possession, etc. of any narcotic drug is culpable. Section 7 of the said Act prohibits import or export, etc, of any narcotic drug and section 8 proscribes trafficking and financing, etc. of any narcotic drug. Section 2(s) of the Control of Narcotic Substances Act, 1997 defines "narcotic drug" and according to the said definition narcotic drug includes 'opium' and 'poppy straw'. Section 2(t) of the Control of Narcotic Substances Act, 1997 defines 'opium' and according to section 2(t)(i) 'opium' means "poppy straw" that is to say all parts of poppy plant (Papaver Somniferum or any other species of Papaver) after mowing, not being seeds". Poast or Doda is a part of a poppy plant and, thus, there is no difficulty in concluding that in view of the provisions of section 2(t)(i) of the Control of Narcotic Substances Act, 1997 Poast or Doda, being a part of a poppy plant, falls within the definition of 'opium' and, therefore , the same has to be treated and accepted as 'narcotic drug' for the purposes of section 2(s) of that Act. It may be true that section 2(t)(i) also speaks of poppy straw and according to the definition of 'poppy straw' contained in section 2(w) read with section 2(v) only poppy plant of the species Papaver Somniferum is relevant to the definition of poppy straw but at the same time it is equally true that section 2(t)(i) expressly travels beyond the definition of poppy straw contained in section 2(w) read with section 2(v) and consciously extends the definition of 'opium' to all parts of a poppy plant whether such plant is of the species known as Papaver Somniferum or is of any other species of Papaver. This clearly demonstrates the legislative intent that the specification of poppy plant contained in section 2(w) read with section 2(v) is not relevant for the purposes of the definition of 'opium'. Section 2(t)(i) has a larger sway than the limited scope of section 2(w) read with section 2(v) and it may well be that the two are intended to cater for different situations or purposes. It appears that section 2(w) and section 2(v) have relevance, to sections 2 and 5 of the said Act and not to the definition of 'opium' contained in section 2(t) thereof. Sections 2(w) and 2(v) speak of 'opium poppy' and section 4 also expressly speaks of 'opium poppy' and not just its cultivation but also gathering any portion of it. Gathering of portions of opium poppy is nothing but gathering of poppy straw and this is why sections 2(w) and 2(v) speak of poppy straw with reference to opium poppy only. The legislature appears to be quite conscious of the definition of 'poppy straw' contained in section 2(w) read with section 2(v) but for the purposes of defining 'opium' the legislature wanted to go beyond the scope of the provisions of section 2(w) and section 2(v). The expanse and all encompassing character of the provisions of section 2(t)(i) of the Control of Narcotic Substances Act, 1997 leave no doubt that the legislature evidently intended that Poast or Doda of all poppy plants of whichever species is to be treated as 'narcotic drug'."
15. In the light of above discussion the arguments advanced by the learned counsel for the appellant about reduction of the sentence in view of the report of the Chemical Examiner (Exh.PE) is not tenable specially when the narcotic substance exceeds 10 K.G. the minimum sentence provided under the proviso annexed to section 9(c) of C.N.S.A., 1997 is imprisonment for life, the sentence which has already been awarded by the learned trial court.
16. No doubt quality and quantity of the narcotic drug/substance makes no difference in passing of the substantive sentence i.e. imprisonment, however, it can be taken into consideration in fixation/ imposition of fine. Section 18 of the C.N.S.A., 1997 is hereby reproduced for facility of reference:-
"18. Limit of fine, etc .---(1) Where for any offence under this Act no amount of minimum fine has been fixed the Special Court shall impose the fine keeping in view the quality and quantity of the narcotic drug, psychotropic substance or controlled substance involved in commission of such offence."
17. As earlier pointed out that traces of Morphine and Codeine were found in the poppy heads/narcotic substance recovered from appellant's possession, therefore, it cannot be equated with the substance popularly known as 'Opium' or 'Heroin', etc. wherein the quantity of morphine is much higher than the poppy straw recovered from the appellant's possession. Therefore, applying section 18 of C.N.S.A., 1997 the sentence of fine is reduced from Rs.2,00,000 to Rs.50,000 or in default of payment thereof to undergo further rigorous imprisonment for two months.
18. With the above slight modification this criminal appeal, being devoid of any merits, is hereby dismissed.
N.H.Q./Z-7/L Fine reduced.