INAYATUR REHMAN Versus STATE

1. Additional Sessions Judge, Peshawar has convicted appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and has sentenced him to undergo 5 years R.I. and to pay a fine of Rs.10,000 with 10 stripes. In default of payment of fine to suffer further S.I. for six months. He has also been convicted under Article 3 of the said order and has sentenced him to R.I. for 5 years and to pay a fine of Rs.5,000 with 5 stripes. In default of payment of this fine to suffer further 3 months S.I. Both sentences to run concurrently. Benefit of section 382-B, Cr.P.C. is also extended to him.

2. Succinctly, the story of prosecution is that on the basis of a murasila (Exh.PA/1), an F.I.R. was lodged at Police Station Pishtakhara District, Peshawar on 4-10-1994 @ 1520 hours stating therein that on the basis of secret information one Ghulam Muhammad, Inspector of C.I.A. alongwith other personnel of C.I.A. intercepted the appellant while proceeding on his Scooter at Bara Road near village Sarband and coming from Ilaqa Ghair, Bara. The team was led by D.S.P., C.I.A. From the search of the Diggi of the Scooter, 11 K.Gs. of opium were recovered. These were wrapped in 4 bundles of cloth. From each bundle 4 grams of opium were separated for analysis. From further search of Scooter and personal search, some other non-incriminating material was also taken into possession. Appellant was arrested and the matter was reported to the concerned police station. According to the murasila (Exh.PA/1) the time of incident was 1500 hours of 4-10-1994.

2. After necessary investigation, the appellant was challaned and charged by the trial Court firstly under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and secondly under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 to which the appellant did not plead guilty.

3. Prosecution examined four P.Ws., Court examined one C.W. namely Ahmed Mustafa, Chemical Examiner, appellant gave his statement under section 342, Cr.P.C. and declined to be examined on oath under section 340 (2), Cr.P.C. and did not produce any witness in his defence.

3. I have heard both the learned counsel for the appellant and State Learned counsel for appellant has assailed vehemently the impugned judgment on the one hand and the proceedings taken at the investigation level on the other hand on the basis that investigation and trial are coram non judice, are out of jurisdiction and are of no legal effect in view of the fact that appellant was searched and arrested by staff of C.I.A. whereas it had no jurisdiction to do so. Consequently investigation initiated is ab initio illegal and all steps taken later including the trial are void. Learned counsel for the appellant has contended further that the Report of Chemical Examiner (Exh.PL) indicates that opium contents were detected in all the samples in question meaning thereby that the alleged recovery of 11 Kgs. of opium was not opium in its bulk; that there are substantial contradictions among the P.Ws; that there are violations of the mandatory provisions of section 103, Cr.P.C.; that the scooter from which contraband item was allegedly recovered was not exhibited or shown to the trial Court; that the deposition of P. W.1 indicates malice existing in the minds of the concerned officials of C.I.A.; that the C.I.A. police weighing the 11 Kgs. Of opium is short of the knowledge of weighing scales and material; that source of weights and scales is not known to the P.Ws.; that the time shown from arrest to completion of the scribe of documents is not enough in the natural course of things; that he has relied on 1987 PCr.LJ 2492, 1996 PCr.LJ 1394, PLD 1995 Lahore 606.

4. The counsel for State has admitted that C.I.A. has no jurisdiction on such like cases and, therefore, the case was ab initio illegal. Other contentions of the counsel for appellant have been rebutted by him.

4. I have pondered about the first legal objection which reaches the core of the case. It has been contended that the very initiation of the proceedings of investigation is ab initio illegal as it is in violation of sections 156 and 157, Cr.P.C. The two sections read as under:--

156. Investigation into cognizable case.--(1) Any officer-incharge of police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as abovementioned.

(4) Notwithstanding anything contained in subsections (1), (2) or (3), no police-officer shall investigate an offence under section 497 of section 498 of the Pakistan Penal Code, except upon a complaint made by the husband of the woman, or, in his absence, by some person who had the care of such, woman on his behalf at the time when such offence was committed.

157. Procedure where cognizable offence suspected.--(1) If from information received or otherwise, an officer-in-charge of a police-station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the Provincial Government may, by general or special order, prescribe in this behalf to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:

5. Provided as follows:

(a) Where local investigation dispensed with. --When any information as to the commission of any such offence is given against any person by name and the case if not of a serious nature, the officer-in-charge of a police-station need not proceed in person or depute a subordinate officer to make an investigation on the spot.

(b) Where police-officer-in-care sees no sufficient ground for investigation.- -If it appears to the officer-in-charge of a police-station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to subsection (1), the officer-in-charge of the police station shall state in his said report his reasons for not fully complying with the requirements of that subsection, and in the case mentioned in clause (b), such officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the Provincial Government, the fact that he will not investigate the case or cause it to be investigated.

6. While relying on the provisions of these two sections of Cr.P.C., the learned counsel for appellant has argued that the investigation was not carried into this cognizable offence by officer-in-charge of the police station Pishtakhara or by any one of his prescribed subordinate officers deputed by him. On the contrary the appellant was intercepted, searched, arrested and all investigations completed by the C.I.A. police Peshawar as is evident from murasila (Exh.PA/1), F.I.R. and also the following piece of deposition of Ghulam Muhammad Khan (P.W.2), D.S.P. Town Circle Peshawar:--

7. "During the days of occurrence I was posted as Inspector C.I.A. Staff, Peshawar. On a tip from an informer that accused was intending to smuggle contraband from Bara, I, some other police personnel being headed by Shah Wali Khan, D.S.P. made a picket near Sarband village Bara Road. In the meanwhile, the accused riding on a Scootor PRL-2093 came from Bara side and was stopped for checking. On inquiry he disclosed his name to be Inayatur Rehman and his designation as P.A. to Post Master-General, Peshawar. I carried the search of the Scootor abovementioned and from the Diggi of the Scootor four packets of opium were recovered. Which on weighing was found to be 11 Kgs. I separated four grams from every packet, four of these being Exh.P.l to Exh.P.4 weighing 10.984 Kgs., and also prepared four sample packets of four grams each and sealed in presence of the marginal witnesses . ... ... I drafted the murasila Exh.PA/1. I also prepared the site plan Exh.Ps, bearing my signature. I recorded the statements of the P. Ws. and drafted an application, to the Chemical Examiner, for testing the samples, the carbon copy of which is Exh.PL/l. The report of the Chemical Examiner is Exh.PL. Which is in affirmative."

8. Reliance has been placed on PLD 1995 Lahore 606. Para. No. 12 of the cited judgment is quoted verbatim.

9. "As has been mentioned above, it was Muneer Ahmed A.S.I. of C.I.A. staff who had allegedly witnessed Iftikhar appellant being in possession of a Klashnikov he had allegedly recovered the same; had then sent a complaint to P.S. Bhikhi for registration of a case under section 13 of Ordinance XX of 1965 and had thereafter, of his own, started investigation of this case. This investigation so conducted by this Muneer Ahmed, A.S.I. of C.I.A. Staff was illegal. According to the provisions of section 156 of the Cr.P.C., it is only an Officer in Charge of a Police Station who is authorised to investigate a cognizable case. The provisions of section 157 of the said Code, however, permit him to depute one of his subordinates to conduct an investigation which he is authorised to hold. It will, therefore, be noticed that the investigations of cognizable cases can be conducted, either by the S.H.Os. themselves or by only those subordinate police officials who are so deputed for the purpose by the concerned S.H.Os. No other police officer or official, irrespective of his rank and capacity, has any power to investigate a congnizable case. Various C.I.A. staffs established in the Province do not stand notified as police stations and consequently, no incharge of the said staff could come within the purview of an Officer Incharge of a Police Station as envisaged by the provisions of the Code of Criminal Procedure: The members of the C.I.A. staff are subordinates of the Superintendents of police of the District which S.P. has the powers of an Officer-in-Charge of a police station in view of the provisions of section 551 of the Cr.P.C. Therefore, the members of the C.I.A. Staff, irrespective of their rank and status, can investigate cases only when they have been entrusted to them by an Officer-in-Charge of the police station to whom they are subordinate i.e. in case of C.I.A. Staff, the S.P. of the District. Therefore, no member of C.I.A. Staff has any authority or power to investigate a case of their own motion in the absence of such an investigation having been entrusted to him by the S.P. of the District, as abovementioned. We have noticed a growing tendency in the members of the C.I.A. Staff and the Officers-in-Charge of the C.I.A. Staff to commence investigation of their own. This is illegal and this practice must be stopped. "

10. The case in hand is distinguishable from the one cited above for the reason that Munir Ahmed A.S.I. of C.I.A. Staff who had allegedly recovered Klashnikov and then had taken up investigation of the case on his own was not a Police Officer superior in rank to an officer-in-charge of the Police Station as is envisaged in section 551, Cr.P.C. which reads:--

11. "Powers of superior officers of police.- -Police officer superior in rank to an officer-in-charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. "

12. In the present case, the nakabandi, interception, search, arrest and investigation was supervised by Shah Wali Khan, D.S.P. of C.I.A. police possessing jurisdiction of the local area in which offence was detected and he was superior in rank to Saiful Malook Khan, A.S.I., In-charge police station Pishtakhara as is evident from F.I.R. and he was incharge of police station at the relevant time. After lodging F.I.R., further investigation itself was entrusted to. . Ghulam Muhammad (P.W.2) who was Inspector in C.I.A. police and again superior in rank to the abovementioned in charge Police Station.

13. I hold that police officers attached with C.I.A. do not lose their status as police officers, and D.S.P. being higher in rank than A.S.I./S.H.O. was competent to initiate the investigation of a case pertaining to the cognizable offences of the prohibition (Enforcement of Hadd) Order, 1979. Again Inspector C.I.A. police was also superior in rank to A.S.I./Incharge of police station and was competent to complete investigation. In holding this view I am pursuaded by the following ruling of Lahore jurisdiction cited as 1987 P.Cr.LJ 728.

14. S.551- "Constitution of Pakistan (1973), Art. 199.- -Investigation-- contention that Police Officers attached with Anti-Smuggling (Rice and Paddy), Mobile team being neither S.H.O. nor incharge of Police Stations was not competent to investigate case against accused and that if a police officer is transferred to some other department, he can act only in accordance with rules framed by that department---Held: Police Officers attached with Anti-Smuggling (Rice and Paddy) Mobile Team had not lost their status as police officers---Superintendent of Police being higher in rank than S.H.O. was competent to investigate case of embezzlement misappropriation against official of that Department in accordance with provisions of S.551, Cr.P.C.---Interference in investigation in Constitutional jurisdiction declined in circumstances. "

15. I am also fortified by AIR 1961 SC 1117 in which their lordships have enunciated the following principle related to section 551, Cr.P.C.:--

16. "Section 551., Police officers superior in rank to an officer-in-charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. The Additional Inspector-General of Police to whom Sethi's complaint was sent was, without doubt, a police officer superior in rank to an officer-in-charge of a police station. Sardar Hardayal Singh, Deputy Superintendent of Police, C.I.D., Amritsar, was also an officer superior in rank to an officer-in-charge of a police station. Both these officers could, therefore, exercise the powers, throughout the local area to which they were appointed, as might be exercised by an officer-in-charge of a police station within the limits of his police station."

17. The upshot of the discussion is that this contention of the counsel for appellant and conceded by the counsel for State is misconceived and is, therefore, rejected.

5. The contention that Report of Chemical Examiner (Exh.PL) indicates traces of opium contents in the samples with the natural result that bulk of 11 K.gs. was not opium. The wording of the opinion of the Chemical Examiner Peshawar is "Opium contents were detected in all the samples in question." Mr. Ahmed Mustafa, reporting Chemical Examiner was examined as C.W.1. During cross he has deposed:--

18. "It is correct that my report states the contents of opium were detected. The detail report according to analysis is on the back of Exh.PL. The samples in question were adultered. The main alcolid in opium is morphine. In the case of adulteration the percentage of morphine is always low. If the samples in questions were hundred percent. opium then my report would have stated that the samples were opium. "

19. It stands proved, naturally, that the bulk of recovered 11 K.Gs. was not opium. But at the same time. Ahmed Mustafa (C.W.1) has deposed that morphine is the main alcaloid in opium and in case the intoxicant is adulterated, morphine percentage is low. The appellant has been convicted under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979- which read as under:--

20. Article 3 "((1) Prohibition of Manufacture. etc., of intoxicants)

21. (Subject to provision of clause (2), whoever

(a) Imports, exports, transports, manufactures of an intoxicant; or

(b) bottles any intoxicant or sells or serves any intoxicant; or

(d) allows any of the acts aforesaid upon premises owned by him or in his immediate possession; shall be punishable with imprisonment of either description for a term which may extend to five years and with whipping not exceeding thirty stripes, and shall also be liable to fine.

(2) Whoever;

(i) imports, exports, transports, manufactures, or trafficks in, opium or coca leaf or opium or coca derivatives; or

(ii) finance the import, export, transport, manufacture, or trafficking of, opium or coca leaf or opium or coca derivatives; shall be punishable with imprisonment or life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes and shall also be liabel to fine.

22. Article 4. Owning or possessing intoxicant.- -Whoever owns, possesses or keeps in his custody any intoxicant shall be punished with imprisonment of not exceeding thirty stripes, and shall also be liable to fine.

23. Provided that nothing contained in this Article shall apply to a non Muslim foreigner or to a non-Muslim citizen of Pakistan who keeps in his custody at or about time of ceremony prescribed by his religion a reasonable quantity of intoxicating liquor for the purpose of using it as a part of such ceremony.

24. Provided further that, if the intoxicant in respect of which the offence is committed is heroin, cocaine, opium or coca leaf, and the quantity exceeds ten grams in the case of heroin or cocaine or one kilogram in the case of opium or coca leaf, the offender shall be punishable with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes. and shall also be liable to fine.

25. Article 3 (1) reefers to intoxicant and Article 3(2) makes a reference to, inter alia, opium and opium derivatives. Article 4 refers again to intoxicant. The word intoxicant has been defined in Article 2 (g) of Prohibition (Enforcement of Hadd) Order, 1979 as:--

26. "'Intoxicant' means an article specified in the Schedule and includes intoxicating liquor and other article or any substance which the Provincial Government may, by notification in the official Gazette, declare to be an intoxicant for the purposes of this Order."

27. The schedule at Item No.4 reads:--

28. "Opium and' opium derivatives as defined in Dangerous Drugs Act, 1930 (11 of 1930)".

29. Dangerous Act, 1930 defines opium and opium Derivatives in its sections 2(e) and 2(f) as under:--

30. 2(e) "Opium" means:--

(i) Popy straw, that is to say, all parts of poppy plant (Papaver somniferum or any other species of Papaver) after mowing, not being seeds, from which narcotics can be extracted;

(ii) the spontaneously coagulated juice of (Capsules of Poppy) which has not been submitted to any manipulations other than those necessary for packing and transport; and

(iii) any mixture, with or without neutral materials, of any of the above forms of opium; but does not include any preparation containing not more than 0.2 percent. of morphine;

31. 2(f) "Opium derivative" means:--

(i) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the British Pharmacopoeia, whether in powder form or granulated or otherwise or mixed with neutral materials;

(ii) Prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking, and the dross or other residue remaining after opium is smoked;

(iii) morphine, that is, the principal alkaloid of opium having the chemical formula C 17 H 19 No 3, and its salts;

(iv) diacetylmorphine, that is, the alkaloid, also known as diamorphine or heroin, having the chemical formula C 21 H 23 No 5, and its salts; and

(v) all preparations, official and non-official, containing more than 0.2 per cent, of morphine, or containing any diacetylmorphine;

32. Now it has become clear that "Opium" includes any mixture, with or without neutral materials, of any of the parts of poppy plant (Papaver somniferum of any other species of papaver) after mowing not being seeds, from which narcotics can be extracted. Of course, it does not include any preparation containing not more than 0. 2 percent. of morphine.

33. The defence has made efforts to play on the word "Opium contents" in the Report of Chemical Examiner (Exh. PL). The examiner himself, examined as C.W.1, is clearly; making a reference to clause (iii) of section 2 (e) of the Dangerous Drugs Act, 1930, The bulk of 11 Kgs. was a mixture with and without neutral materials of all parts of poppy plant from which narcotics could be extracted.

34. No suggestion has been made to P.Ws., of C.W that the incriminating material was not mowed or was the seed of poppy or it was a substance from which narcotics could not be extracted or that it was that type of medical opinum which had not undergone the processes necessary to adapt it for medical use in accordance with the requirements of the British Pharmacopoeia.

35. On the other hand I gather from the deposition of C.W.1 that the recovery was that of a mixture of various species of papaver with or without neutral materials, from which narcotics could be extracted and thereafter the bulk of 11 Kgs. was falling within the mischief of the word "Opium" as used in Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 for the transportation and trafficking of which maximum punishment prescribed by law is inter alia, imprisonment for life.

36. So far as my conclusion that narcotics could be extracted from the recovered "Opium", it is based on the following passages from authentic works on the subject:--

37. "1. The terms opium refers to the crude resinous exudate obtained from the opium poppy ...Morphine is the major pain-relieving drug found in opium, being approximately 10 per cent of the crude exudate. Codeine is structurally closely related to morphine, although it is much less potent and amounts to only 0.5 per cent of the opium extract. Heroin does not occur naturally but is a semisynthetic derivative produced by a chemical modification of morphine that increases the potency."

38. (A Primer of Grug action by Robert M. Julien. Chapter 7. Fifth edition, 1988--W.H. Freemars Co. New York.

2. "Opiates are drugs derived from opium... The pharmacologically active substances, which constitute approximately 25 % of the extract, are the alkaloids morphine, codeine, and papaverine".

39. (Concise Encyclopaedia of Science & Technology. Second edition, 1989 Mcgraw-Hill.

40. The upshot of the discussion is that this contention of appellant's counsel fails.

41. 6.The contention that there are substantial contradictions among the P.Ws. is based on the following material available in the record.

(i) During cross, Sher Khan (P.W.1) A. S. I., C: I. A. Staff Peshawar has disposed.

42. "We left C.I.A. Headquarters for Naqabandi and our party being headed by D.S.P. Shah Wali Khan, was consisting of Ghulam Muhammad Khan, Inspector, Madad Khan, Inspector, Abdur Rashid Khan, Inspector, myself and some constables. We used one vehicle meant for Mobile Duty for the abovementioned journey."

43. In contradiction to this Ghulam Muhammad Khan (P.W.12) has deposed during cross.

44. "As far as I remember, I myself has travelled in the Mobile Van and the rest I do not remember that whether we all went in the same vehicle or separately in different vehicles."

(ii) P. W.1 is deposing during cross.

45. "I do not know whether the scale and stones were lying in the vehicle or were arranged from anywhere else."

46. In contrast, P.W.2 is deposing during cross:

47. "I do not remember whether the scale and weight stones were with me but my subordinates have arranged the same. I do not remember the name of my that subordinate."

(iii) P.W deposes during cross:

48. "Approximately, half an hour was consumed from the time of nabbing the accused, weighing the contraband and sealing the same back into the parcels. The scriber of the recovery memo. is Inspector Ghulam Muhammad Khan.

49. This half an hour is contradicted by Murasila (Exh.PA) which indicates time of occurrence to be 15-00 hours and time of Report to be 15-20 hours. It has also been contended that this time of 20 minutes is not enough to complete search and scribe and then reach police station which was 2 KMs. distant.

(iv) P. W.1 is deposing:

50. "The scriber of the recovery memo. is Inspector Ghulam Muhammad Khan. "

51. But against the same P. W is taking another stand in the following words:

52. "The memos were prepared in my handwriting at the dictation of the I.O. "

53. So far as discrepancy shown at No. (i) above is concerned, P. W.1 has spoken of 5 officers of C.I.A. including Ghulam Muhammad (P.W.2) plus some constables using one vehicle for mobile duty, whereas Ghulam Muhammad (P.W.2) is not denying such a position but rather he is stating that he does not remember. This is not a contradiction, but it does cost doubt in the normal mental set-up of the deponent at that proper moment when he was facing cross. This objection is not so substantial as to demolish the whole story.

54. So far as discrepancy shown at No.(ii) above is concerned, it is not discrepancy at all as P. W.1 is showing ignorance about the source of scales and stones and P.W.2 is stating that any one of his subordinates had arranged the same. It would have created doubt in case P.W.2 was going to identify P.W.1 being that subordinate who arranged the scales etc.

55. So far as No. (iii) above is concerned, it is misconceived as F.I.R. indicates 1600 hours as the time of its writing (Chakidagi Parcha) meaning thereby that the appellant was intercepted at 3 p.m. and F.I.R. was written at 4 p.m. One hour is enough for all those legal actions which were essential.

56. No:(iv)supra is not at all a self-annihilating piece of evidence as P.W.I has firstly said that the scriber of recovery memo is P.W.2 who is also Investigation Officer of the case, and secondly he has simply clarified that at the dictation of Investigation Officer he wrote the memos. Anyone who dictates in his words and can be termed as an scriber or author of the document written in the hands of another.

7. Appellant's counsel has made a reference to the violations of the mandatory provisions of section 103, Cr.P.C. According to him Scooter which was searched was a place as it was a vehicle within the meaning of Article 2 (j) of Prohibition (Enforcement of Hadd) Order, 1979 and, therefore, two or more respectable inhabitants of the locality should have been called by Investigation Officer to become mushirs of search. It was not done in spite of earlier secret information and Recovery memos. (Exhs.PB and PB/1) are showing two officials of the C.I.A. Police Peshawar as mushirs.

57. This aspect has been explained by Ghulam Muhammad (P.W.2), Investigation Officer, in the following words of his deposition:--

58. "I did make an effort for procuring public witness for the recovery memo but no one was ready for this service. It is correct that whenever a person is called upon to become a witness and he refuses can be proceeded against under the law."

59. The objection that in such a case, the Investigation must have taken actions under section 188, P.P.C. has no bearing on this case. The mushir of Recovery Sher Khan (P.W.1) in his deposition is totally intact about this aspect and inspires confidence.

8. Following words of para. No.7 of the impugned judgment have been assailed on the presumption that the remarks about Scooter are conjectural in nature as it was not exhibited. To a suggestion P.W.1 has deposed. "It is correct that the said Scooter is not exhibited today in the Court as a case property".

60. Para. No.7 of the impugned judgment reads:--

61. "The prosecution has proved the case of recovery of 11 K.gs. of opium from the possession of the accused which he was undoubtedly carrying in the Diggi of his Scooter."

62. Once so, then how could the trial Court conclude that the Scooter had a diggi with a capacity for containing 11 K.Gs. of opium? Reliance has been placed on 1987 PCr. LJ 2492 and 1996 PCr. LJ 1394.

63. I do not agree with this contention firstly because Sher Khan (P.W.1) is not the Investigation Officer and secondly because Ghulam Muhammad (P.W.2), the Investigation Officer of the case, has replied to a suggestion that the Scooter was Vespa. Now it is a common knowledge that Vespa has a diggi, capacious enough to contain 11 K.gs. of opium 1996 P.Cr.LJ 1394 is clearly distinct from the present case as in the cited case of Peshawar jurisdiction hand grenades and fuses alleged to have been recovered from the accused were not produced in the Court in the prosecution evidence and armourer who had examined the hand grenades etc. was not produced in the witness-box to stand the test of cross examination. In the present case not only the incriminating intoxicant has been produced in the trial Court but the chemical examiner has also entered the witness-box as C.W.1. Citation 1987 P.Cr.LJ 2492, a Full Bench judgment of this Court, is again distinguishable as in the said case it was alleged that 700 grams of heroin were recovered from a pocket of a trouser. Since the trouser was neither recovered nor produced for examining possibility for keeping packet of 700 grams in a pocket of a trouser and since there were clear substantial discrepancies among P. Ws. with other attending circumstances, the appellant was given benefit of doubt. As discussed earlier the make of Vespa Scooter is such that its diggi can easily contain 11 K.gs. of opium.

9. Now comes the question of the alleged existence of animus in the minds of the C.I.A. police against the appellant. In his statement under section 342, Cr.P.C., the appellant has replied to a question as under:--

64. "As D.S.P. Shah Wali Khan is on inimical terms with me on the issue of free passes for the stage shows produced by me, hence on his directions the I. O. has fabricated the present case against me. "

65. To another question he has replied:--

66. "I am innocent and falsely charged as mentioned above. As a matter of fact I was arrested from my house, besides my Scooter was lifted from my house and was charged in the case on the behest of D.S.P. C.I.A. and Ghulam Muhammad Khan, Inspector C.I.A., Peshawar."

67. The counsel for appellant has tried to prove that such animus do exist from the following piece of deposition of Sher Khan (P.W.1):--

68. "It is correct that I have taken custody of the accused in another case registered vide F.I.R. No.686, dated 26-8-1994 P.S. West Cantt. and investigated by C.I.A. after he was arrested in this case under section 379, P.P.C. read with 14 of the Islamic Law pertain to the theft of a Scooter. "

69. This question is resolved by the following passage from the impugned judgment:

70. "Another factor which goes against the accused is that he was granted bail in the instant case but on 5-8-1996 he was again arrested by the Narcotics Department for the recovery of Narcotics and a case vide F. I. R. No. 13, dated 5-8-1996 under section 6/7/9 Control of Narcotics Substance Ordinance, read with section 165-A, P.P.C., P.S. Narcotics, which indicates his conduct of habitual dealing in the narcotics."

71. In the cited case, Department of Narcotics has nabbed the appellant and not C.I.A. police. This allegation of enmity is an afterthought and is not proved, by the appellant. He has even declined to say so on oath in the witness-box. Ghazi Marjan (P.W.3) may be correct that the appellant is not even a smoker and is a very noble person, but he has also volunteered to state: "To err is human." So, many a times a judicial notice has been taken that many a times apparently noble and non-smoking persons, and even those who have not tested a single drop of liquor, do deal in smoking materials, intoxicants, narcotics, liquor for the sake of earning money. Resultantly this contention fails.

10. It has been contended that the personnel related to investigation are short of the knowledge of weighing material. Sher Khan (P.W.1) is deposing: "There were four/five weight stones used by the Investigation Officer. The weight stones included a five K.G., two K.G. and one K.G. which I remember." From this a conclusion has been drawn that it was not possible to weigh 11 K.gs. of opium with such stones as 5+2+1 which makes 8. This contention is misconceived for the simple reason that the witness has simply referred to 5+2+1 K.G. stones as some of the stones. Since no suggestion has been made to any of the P.Ws. regarding stones other the ones clarified by this witness, this piece of evidence will go as unchallenged as the evidence is indicating existence of other stones and scales which could even weigh the grammage of the samples.

72. The upshot of the entire discussion is that the appeal is dismissed the conviction and sentences as awarded by the trial Court are upheld.

73. N.H.Q./1146/FSC Appeal dismissed.