SHAH WALI Versus THE STATE
FAZAL-UR-RAHMAN, J.--- This criminal appeal has been preferred against the judgment, dated 11-10-1999, passed by the learned Judge of Special Court by which he convicted the appellant for the offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter called as Act) and sentenced him to suffer R.I. for seven years and to pay a fine of Rs.20,000 or in default of payment of fine to undergo S.I. for six months. The benefit of section 382(b), Cr.P.C. was also extended to the appellant.
2. Brief facts of the case are that on 10-1-1999 P.W. Sher Afzal, I.P./S.H.O. Satellite Town alongwith other police personnel of Police Station Satellite Town, Saraib and industrial area under the supervision of A.C./S.D.M. City raided the house of the appellant in connection with an investigation of Case No.7 of 1999 of Police Station Industrial Area under sections 386, 387, P.P.C. and section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The accused/appellant was found present in the residential room sitting on his bed. It is stated that as a result of search two Kgs. of Charas and 900 grams of Opium lying beneath the bed of accused/appellant were recovered and taken into possession vide recovery memo. Exh.P./3-A. His personal search also resulted into recovery of one unlicensed pistol and an amount of Rs.15,000. The Seizing Officer wrote Marasila (Exh.P./2-A) for registration of case which was accordingly incorporated in the F.I.R. being Crime No.5 of 4999 Police Station Satellite Town under Article 3/4 of the Hadd Ordinance. It is stated that another case under section 13-E of the Arms Ordinance, 1965 was also registered against him. The seized narcotics were sent to Chemical Expert who submitted positive report vide Exh.P./1-A. After the completion of usual police investigation challan under section 173, Cr.P:C. was forwarded through the District Attorney to the Court of Special Judge under the said Act against the appellant. The endorsement made by the District Attorney V, Quetta is available on the overleaf of Exh.P.2/B.
3. On 20-5-1999 charge under section 9(c) of the said Act was framed by the trial Court against the appellant to which he pleaded not guilty and claimed trial. He has, however, added that he was arrested at 5-00 p.m. from Bazar. The prosecution in order to establish its case produced P.W. Syed Abdul Jabbar, Chemical Expert, P.W. Sher Afzal, S.H.O. Satellite Town, Quetta, Seizing Officer, P.W. Abdul Jabbar son of Abdul Sattar, Inspector, recovery` witness and P.W. Abdul Jabbar son of Sher Muhammad, S.-I./ Investigating Officer.
4. In his statement recorded under section 342,. Cr.P.C. the appellant has denied the allegation. According to him neither any raid has been laid down upon his house nor recovery of Charas, Opium and pistol has been effected from him. When asked as to why the prosecution witnesses had deposed against him to which he has replied to the trial Court that they have deposed on account of Wazir Khan Nasir who had taken an amount of Rs:12,50,000 from him. lie has also made his statement on oath. He pleaded his innocence.
5. The triab Court after recording the evidence and hearing the parties framed the following points for determination:-- '
(1) Whether the police in present of Magistrate raided the house of accused person Shah Wali in Musa Colony?
(2) Whether Charas weighing 2 Kgs. and Opium 900 grams with an amount of Rs.15,000 was recovered from the possession of accused person?
(3) What offence is made out and what should the sentence be?.
The findings were given in affirmative and passed the judgment, dated 11-10-1999 by concluding as under:--
"Two separate cases under Control of Narcotics Substance Act and Arms Ordinance, 1965 were got registered. The house of accused person Shah Wali was raided by high ranking police official under the superintendence of Assistant Commissioner Sub-Division Magistrate. The recovery of narcotics was effected and the statement of prosecution witnesses regarding the recovery has been corroborated. The Chemical Expert has further testified that the recovered material was Charas and Opium. As regards to the contention of learned defence counsel that the private witnesses were not associated at the time of raid and the recovery is not tenable. Magistrate himself was present at the time of raid and recovery with the police officials. Even otherwise, the Control of Narcotics Substance Act has impliedly ousted section 103, Cr.P.C. The Control of Narcotics Substance Act provides that the law enforcing agency can enter the suspected place having narcotics even after breaking through the' door. It has been held in number of cases by the superior Courts that evidence of police official is as much trustworthy as any of the citizens. His evidence cannot be discarded simply for the reason that he is police officials 1987 SCMR 17, PLD 1984 SC 278, 1986 SCMR 11. It is to be noted that disqualification of a Muslim to be a un-witness is punishment itself and cannot be inflicted without proving of his incurring it PLD 1987 FSC 22. As regards to the contention of learned counsel that different place of recovery has been mentioned and the case-law 1996 PCr.LJ 1722 is totally different with the present case. In that case one of the witnesses said that the step-gun was recovered from Liaquat Abad whereas other witness stated that it was recovered from Kot Lakhpat. In the present case one of the witnesses said that the narcotics was recovered from a room under the bedding on which accused person was lying and the other witness had said that it was Bhatak and the narcotics was recovered from under the bedding on which accused person was lying. It has further been clarified by the witness that the Bhatak as well as other rooms are within the same courtyard. As regards to the contention of the learned counsel that the house was not under the exclusive possession of accused has no merit. The house was under the exclusive possession of accused person where he - was residing alongwith his parents. The recovery of unlicensed pistol at the time of recovery of narcotics and the subsequent conviction of the accused person by the Court of Additional Sessions Judge-I further proves the case against the accused person. As regards to the contention of accused person that Rs.12,50,000 was taken from him by Wazir Khan Nasir is not plausible. This is a huge amount and one cannot afford the loss of such an amount. Even otherwise, the accused person was not shown a person of having such means of earning having such a heavy amount with him. Even otherwise, had the D.S.P. taken Rs.12,50,000 from accused, naturally the accused person should have been given a free hand to do whatever he liked. It is not plausible that after taking Rs.12,50,000 from the accused person a fake case has been planted against him. This cannot be believed. Under the circumstances all the points for determination are decided in affirmative. "
6. The learned Special Judge passed the conviction on evidence recorded by him in the manner hereinabove mentioned. It is in these circumstances that the present appeal has been filed.
7. We have heard Mr. Muhammad Hashim Khan Kakar, Advocate learned counsel for the appellant and Miss Iram Mehmood, Advocate learned councel for the State-
8. The main contentions of the learned counsel for the appellant are as under:--
(a) that the prosecution has failed to prove their case beyond reasonable doubt and the Trial Judge failed to apply his mind to the evidence on record and passed the impugned judgment which is unwarranted under the law.
(b) that the recovery is doubtful as the mandatory requirement of section 103, Cr.P.C. had -not been complied with by the Seizing Officer and the witnesses being police officials cannot be relied upon and there is delay in despatching the recovered narcotics to chemical examination.
(c) that trial of the appellant under the provisions of said Act was not competent as the F.I.R. was lodged under Article 3/4 of the Hadd.
(d) that no opportunity was provided to the appellant regarding production of defence witness.
In support of his contentions learned counsel has relied upon the authorities reported in PLD 1997 Quetta 69, 1996 PCr.LJ (Peshawar) 1546, 1992 PCr:LJ (Lahore) 1725, 1997 SCMR 1180.
9. On the other hand, Miss Iram Mehmood, Advocate representing the State has contended that the charge was framed by the trial Court under section 9(c) of the said Act and the appellant has also been convicted under the said section. She has contended that there is no contradiction as to make the prosecution case doubtful. No suggestion was put to the witnesses regarding the alleged amount of Rs.12,50,000. Recovery has been effected and the provision of section 103,'Cr.P.C. has no application to the narcotics cases under the said Act as per provisions contained under section 25 of the said Act. Reliance has also been placed on the authority reported in 1998 MLD 506 (Federal Shariat Court).
10. In the instant case after investigation challan was forwarded by the District Attorney to the special Court under section 9 of the said Act as evident from the endorsement available on the overleaf of the challan Exh.P./2-B. Charge was framed under section 9(c) of the said Act by the trial Court against the appellant. The conviction/sentence has also been recorded under section 9(c) of the said Act, therefore, there is no force in the contention of learned counsel for the appellant that the trial of the case by Additional District Judge/Special Judge, Control of Narcotic Substances Act, Quetta was not competent.
11. The learned Trial Judge has discussed the evidence and has given valid reasons for his conclusion. The judgment of the learned Special Judge does not suffer from any illegality or material irregularity, the same is neither perverse nor arbitrary. The provision of section 103, Cr.P.C. has no application to the narcotic cases under the said Act as per provisions contained under section 25 of the abovementioned Act. It is pertinent to point out here that the second case which was registered against the appellant under the provisions of section 13-E of the Arms Ordinance was tried and resulted into his conviction. This Court while dismissing his appeal in Criminal Appeal No. 161 of 1999 have made observations, the relevant para. of which is reproduced below for the sake of facility:--
"Reverting to the arguments of Amir Afridi for the appellant that the recovery was effected in violation of section 103, Cr.P.C. It may be pointed out that as it has come on record that the raid was conducted in presence of the Magistrate and from the personal search of the appellant a pistol alongwith spare magazine and nine live cartridges in total were recovered from his waist-coat. It may be mentioned here that since the appellant was wanted in Crime No.6 of 1999 registered with Industrial Police Station and a raid was conducted on -his house and during the course of the said case a pistol was recovered from his possession in presence of the Magistrate. The prosecution witnesses were cross-examined at length but they were not shaken in their testimony and P.W.1 and P.W.2 have corroborated each other on material points as far as recovery of pistol from the appellant is concerned, as the raid was conducted in presence of the Magistrate and his presence was not disputed by the defence. The contention that no search warrant was issued nor any private witness was associated is without any substance. It may be. observed that the Magistrate being competent to issue search warrant, he himself undertook to get the search conducted in his own presence. Thus, the search being under Chapter 7 of the Cr.P.C. to which section 105, Cr.P.C. were not violated nor any search warrant was required. The defence throughout its cross-examination had not disputed the presence of the Magistrate, thus, the contention raised by Mr. Amir Afridi, Advocate is without substance. Besides the aforestated legal position, even otherwise, the pistol was recovered from the personal search of the appellant and the provisions of section 103, Cr.P.C. are not strictly attracted while conducting the personal search. Thus, we are not persuaded to agree with the learned counsel for the appellant that the search being in violation of sections 103, Cr.P.C. and 105, Cr.P.C. is doubtful. The contention raised by the learned counsel is rapt tenable."
12. The police officials who have no ill-will against .accused would be competent witnesses and their evidence cannot be discarded only for the reason that they are police officials. They have supported the prosecution case and there is nothing on record to show that they are deposing against the accused maliciously or- out of animus. It cannot be believed that officials would plant narcotics on the accused from their own sources, therefore, the contention of learned counsel has no force that the case is doubtful. The appellant in his cross-, examination of the statement recorded on oath while reply certain questions put to him has stated as under:--
In order to reach the truth the grain has to be sifted from chuff. The self contradictory plea of the appellant is not worthy of reliance and cannot be relied upon. There is also no substance that he was not provided an opportunity to produce evidence. Non-production of Magistrate and D.S.P. Wazir Khan Nasir by the prosecution is also not fatal to the prosecution case.
13. Chemical examination report Exh.P./1-A is in positive. After chemical analysis it was found that parcel No.1 contained 'Charas (Cannabinoids) and parcel No.2 contained opium. Prosecution witnesses. have supported the recovery and there is no allegation of enmity. There is also no contradictions regarding main occurrence as to make the case doubtful. The contention regarding delayed despatched of the seized narcotics and report of the Chemical Examiner are not fatal to the prosecution case in view of the judgment of Honourable Supreme Court (Shariat Appellate Bench) reported in PLD 1990 SC 1176. The following observations are noteworthy:--
14. The Honourable Supreme Court of Pakistan in case of Munawar Hussain and others v. The State reported in 1993 SCMR 789 have held that in narcotics cases approach of the Court should be dynamic and technicalities should be overlooked. It ,has further, been laid down therein that while deciding the case the Court should consider the entire material as a whole and, if it is convinced that the case is proved then conviction should be recorded notwithstanding such procedural defects. Relevant portion of the judgment reads as under:--
"We may observe that the Court cannot expect in cases of smuggling of narcotics, the evidence of the nature, which is generally available in an ordinary criminal case, as the persons who indulge in the above nefarious activities are more organized; affluent and influential and, therefore, generally, they damage to cause dents in the prosecution evidence. In such like cases, which are not only damaging the image of Pakistani nation in the community of nations, but are making our young generation addicts to narcotic, the Court's approach should be dynamic and they should overlook technicalities in the large interest of the country and the public at large. The Court is to consider the entire material on record as a whole and if it is convinced that the case is proved, conviction should be recorded "
The -appellant Has also failed to discharge the burden as per provisions contained under section 29 of the said Act. On the other hand the prosecution has proved the recovery and the learned special Judge has discussed the evidence and has given valid reasons for his conclusion, the same is neither perverse nor arbitrary. On the contrary it is a speaking order.
15. In the circumstances, in our opinion, this appeal is without any substance and is accordingly dismissed.
N.H.Q./17/Q Appeal dismissed.