MAQSOOD AHMED Versus STATE
FAZAL‑UR‑REHMAN, J.‑‑‑ This Criminal Appeal has been preferred against the judgment, dated 30‑6‑1999, passed by the learned Judge of Special Court by which he convicted the appellant for the offence under section 9(e) of the Control of Narcotic Substances Act, 1997 (hereinafter called as Act) and sentenced him to suffer R.I. for 14 years and to pay a fine of Rs,20,000 (Rupees Twenty Thousand) or in default of payment of fine to undergo S.I. for 6 months the benefit of section 382(b), Cr.P.C. was also extended to the appellant.
2. Briefly stated the facts of the case are that P.W.2 Rasool Bakhsh, I.P./S.H.O. Police Station Sariab Road, Quetta, on receipt of certain spy information regarding dealing in narcotics business and availability of narcotic in the house of the appellant situated in Killi Kashmirabad, Quetta, formed a raiding party. The raiding party which was consisted 'of Muhammad Ayaz, S.I., Kamran Yousaf, A.S.I. Tahir Mehmood, A.S.I. Abdul Aziz, S.I./S.H.O. Saddar Police Station, Abdul Ghani, S.I. and lady Constable Nazira Bibi and other police personnel headed by P.W.2 Rasool Bakhsh under. the supervision of DSP/SDPO raided the said house at about 1‑30 p.m. It is stated that Muhammad Hashim Area Magistrate was also with the raiding party. It is stated that as a result of search one plastic bag containing opium and one water cooler containing Charas were recovered from residential room of appellant Maqsood Ahmed. The weightment.was carried out and the opium was founded 8 kgs. while Charas was 4 kgs., the same were taken into possession vide recovery memo. Exh.P/2‑A. The Seizing Officer then wrote Marasaia Exh.P.2B which was accordingly incorporated ,in the F.I.R. being Crime No. 151 of 1998, Police Station Sariab Road, Quetta under Articles 3/4 of Prohibition (Enforcement of Hadd) Ordinance, 1979 and 9/11 of the said Act. On completion of usual investigation the accused was sent up to face his trial.
3. On 12‑11‑1998 charge under section 9(c) of the said Act was framed against the appellant by the trial Court to which he pleaded not guilty and claimed trial.
4. In his statement recorded under section 342, Cr.P.C. the appellant has denied the allegation levelled against him. He has, however, admitted that on 22‑8‑1998 his house situated in Kashmirabad was raided by the Police party alongwith the Magistrate at about i‑30 p.m. He also admitted that the search of his house was carried out. He has, however, disputed the recovery of Charas and Opium from his residential room. When asked as to why the prosecution witnesses had deposed against him to which he stated that they made false statement as he did not meet the demand of police for money. He pleaded his innocence and stated that the seized narcotics do not belong to him. He also made his statement on oath in disproof of the charge made against him. His statement is to the extent that he has been residing in a rented house in Killi Kashmirabad alongwith his parents. He has stated that Ghulam Farooq and Fazal Umar were also residing in the same Haweli but each of them were paying their rent separately. According to him raid was laid down upon their house on 22‑8‑1998 and at the time of raid he was present in his house. He has also stated that Ghulam Farooq and Fazal Umar were also present in their houses. He has alleged that the recovery was effected from a small room used as a godown belonging to Ghulam Farooq. It is stated that Ghulam Farooq was arrested in connection with another case under section 13‑E of the Arms .Ordinance and acquitted by the learned Special Judge for Suppression of Terrorist Activities. He has neither alleged in his examination‑in‑chief regarding alleged demand of money by the police from him nor any enmity. While replying a question put to him by the prosecutor he has stated that Magistrate and Police had no enmity with him. The plea of the appellant before the trial Court was that he was innocent and falsely been implicated with the commission of alleged offence and has got no concern with the seized narcotics. The learned Special Judge after assessment of the evidence has convicted the appellant and expressed himself in the following terms:
"I have gone through the record in the light of arguments advanced by both the learned counsel. The house of Maqsood Ahmed was raided in presence of a Magistrate and huge quantity of narcotics i.e. 8 Kgs. of Opium and 4 Kgs. of Charas were recovered from his possession. The statements of 'prosecution witnesses regarding recovery have been corroborated, the contention of learned defence counsel was that the private witness was not associated at the time of raid and alleged recovery was untenable. Magistrate himself was present at the time of recovery with the police officials. Even otherwise, this special law Control of Narcotics Substances Act impliedly ousted the application of section 103, Cr.P.C. It has been held in number of cases by the Superior Courts that evidence of the police officers is as much trustworthy as any of a citizen. His evidence cannot be discarded simply for the reason that they are police officials (1987 SCMR 17; PLD 1984 SC 278; 1986 SCMR 11). It is to be noted that disqualification of a witnesses is punishment itself and cannot be inflicted without proving of his incurring it. (PLD 1987 FSC 22), it is on record that accused person was residing in the said house with Ghulam Sakhi and Fazal Umar, who were close relatives of accused person. The accused person admitted that Ghulam Sakhi is the husband of accused's sister about whom it is alleged that he was the owner of the recovered narcotics. The recovery of narcotics with weighing scale, utensils and the packing material further corroborates the prosecution version that accused was a drug dealer. The deposition of P.W.1 the Chemical Expert is very much relevant in the light of his expert opinion as per Exh.P/1‑A. Therefore, all the points are decided in affirmative. Thus, the prosecution has proved its case against the accused person without any shadow of doubt."
The present appeal is directed against the said judgment.
5. We have heard Mr. Inayatullah Kasi, Advocate, learned counsel for the appellant and Miss. Iram, Advocate, learned counsel for the State.
6. It has been contended by the learned counsel for the appellant that the recovery is doubtful as the mandatory requirements of section 103, Cr.P.C. had not been complied with by Seizing Officer and the witnesses being police personnel cannot be relied upon. This contention of the learned counsel has got no force in view of provisions of section 25 of the said Act, the same cannot invalidate the search and not fatal to the prosecution case. Reference can also be given to an authority of Hon'ble Supreme Court (Shariat Appellate Bench) reported in PLD 1990 SC 1186. Similarly, there is also no force in the contention of learned counsel for the appellant that the evidence of chemical expert recorded in the instant case is not admissible. He has given reference of sections 31 and 32 of the said Act which have got no relevancy. Syed Abdul Jabbar, Chemical Expert did appear before the trial Court as P.W.1 and has produced report as Exh.P/1‑A which clearly indicates that sealed parcels were received on 1‑9‑1998. After chemical analysis it was found that parcel No.l contained raw opium while parcel No.2 (cooler) contained Charas (Cannabinoids). The Hon'ble Supreme Court (Shariat Appellate Bench in an authority reported in NLR 1991 SD 12 have made the following observations:‑‑
7. The prosecution witnesses have supported prosecution's story and we have not found any material infirmity in their evidence to hold otherwise, but that from evidence it proves the possession. Even the recovery of narcotics during the search of the house has not been denied by the appellant. His plea is, however, to the extent that he has got no concern with the seized narcotics. Appellant has failed to furnish reasonable explanation for the same and the defence story is not worthy of reliance. Nothing has been brought on record which can indicate that he has falsely been involved in this case. Record does not reveal any mala fides of the police officials to show that they have deposed .against the appellant maliciously. It cannot be believed that police officials would plant narcotics on the appellant from their own source or substitute him for the real culprit, therefore, the contention has no force. Appellant has also failed to discharge burden as per provision contained under section 29 of the said Act.
8. As far as quantum of punishment awarded by the trial Court is concerned the same is not in accordance with the provisions of section 9(c) of the said Act as the quantity exceeds 10 Kgs. State did not move any appeal for enhancing the sentence. The appellant has merely challenged the correctness of the conviction and sentence awarded by the trial Court. In view of an authority of this Court reported in PLD 1996 Quetta 37, Appellate Court is not vested with any‑suo motu authority or jurisdiction for enhancing sentence during appeal filed by the convict especially without giving prior notice and providing fair opportunity of hearing to him.
9. The upshot of the above discussion is that there is no merit in this appeal, the same is accordingly dismissed.
N.H.Q./784/Q
Appeal dismissed.