MUHAMMAD SHAHZAD ANJUM Versus THE STATE
GUL MUHAMMAD KHAN, C.J .--The appellant Muhammad Shahzad Anjum, aged 25/26' years has brought this appeal against the order dated 30th of July, 1987, passed by Mr. Ali Aqdas Shahzad Magistrate Section 30, Lahore, whereby he convicted him under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him to five years' R.I., with whipping numbering five stripes and a fine of Rs.1,000. In default of payment of fine he was to suffer one month's simple imprisonment.
2. The occurrence took place on the 12th of November 1985 a -30 p.m., just outside the Lohari Gate near Muslim Mosque. Munir Ahmad, A.E.T.O., P.W.4, received a secret information that the present appellant was carrying heroin and was going to Lohari Gate. He, therefore, formed a raiding party and on the pointation of the informer stopped the present appellant. He was searched and found to be carrying a canvas bag with three packets of heroin each weighing one kilogram. He separated 2 grams from each of the packets, made the same into three parcels and sent them for chemical analysis to the Chemical Examiner. The report of the Chemical Examiner is Ex.P.D., stating that the material recovered was heroin.
3. The prosecution produced six witnesses in support of its case. Parvez Akhtar, H.C., P.W.1, had recorded the first information report. Mohammad Khalil, H.C., P.W.3, is the Moharrir, who kept the parcels of the recovered material in the 'malkhana' and gave subsequently the sample meant for chemical analysis to Muhammad Idrees, F.C. P.W.6, who transmitted the same to the Chemical Examiner,. He stated that the samples were not tampered and delivered?' intact. '
4. The case of the prosecution, however, rested mainly on the eye-witnesses, who are Munir Ahmad, A.E.T.0, P.W.4, the complainant, Zubar Ahmad, Excise Inspector, P.W.5 and Inayat Ali, A. S. I., P.W.2. Inayat Ali, had also investigated the case. All of them supported the prosecution version as given above.
5. The appellant in his statement made under section 342 Cr.P.C., denied the allegation against him and stated that the witnesses had deposed against him due to enmity and because they were civil servants. In his sworn statement made under section 340(2) Cr.P.C., he stated that he is the owner of a small house having four portions. Out of the four portions, two were let by him and two were in his possession. Some persons in his Mohallah, who were dealing in contraband material wanted to take on mortgage his house. They offered him a sum of Rs.50,000 for mortgage. They being touts, the police involved him in the false-case after arresting him from his house without any warrant. He denied if any heroin was recovered from his house. He further stated that the police also wanted him to appear as a witness against Minto Pehlwan. He came to know on the second day that three kilograms of heroin had been planted on him in that case. He also sworn on the Holy Quran that no heroin was recovered from him and he was falsely involved in the case.
6. In his cross-examination he stated that he had no enmity with A.E.T.O., or Zubair Inspector but the case had been made against him by those persons against whom he had made certain applications. He produced two witnesses in defence. Abdul Hamid, D.W. 1 and Ahmad Allah, D.W. 2 stated that the police called him from his house took him to the Police Station where he was involved in the 'case.
7. It is contended by the learned counsel for the appellant that though there is no substantial discrepency or conflict in the statements of the prosecution witnesses yet the omission on the part of the prosecution to join independent witnesses in the search and recovery makes the case highly doubtful. According to him, the place outside the Lohari Gate is congested and it is not possible that there will be no person available at the spot to join the search. He also referred to the name of Muhammad Bashir mentioned in the F.I.R., to state though he was specifically named yet he has not been produced.
8. The question of omission on the part of the prosecution not to produce any independent witness was asked from Munir Ahmad P.W.4, who replied that when the accused was apprehended no other person from the public was around and so nobody was asked to join the proceedings. In this view of the matter and without any other evidence A we are not in a position to take judicial notice that it is a place where there must always be a number of persons going and coming or available to witness a recovery of the nature. Obviously, the demand is unjustified and so untenable.
9. It is to be noted that the appellant admitted in his sworn statement that none of the witnesses has any animosity against him. All the three eye-witnesses in this case are responsi6te Police Officers. Munir Ahmad is Assistant Excise and Taxation Officer, Zubair Ahmad P.W.5 is an Excise Inspector whereas Inayat Ali is Assistant Sub-Inspector of Police. They are Muslims and nothing adverse their credibility has been pointed out or even suggested. They made the statements on oath. In this view of the matter, we are no11 persuaded to agree with the learned counsel that they would involved the appellant falsely in this heinous crime. Consequently, we find no merit in the plea raised and therefore, dismiss this appeal.
10. We had also issued a notice for enhancement of sentence in this case. The heroin recovered is three kilograms which is a very large quantity. The law provides life sentence for quantity more than 10 grams. The learned counsel submitted that as no percentage of the active material in the sample had been disclosed by the Chemical Examiner the sentence awarded already may be quite sufficient. We, consequently, sent for the Assistant Chemical Examiner, as also the Register maintained for the analysis but find that no percentage has been given therein because that was not the procedure to begin with. They have started the same now in view of a recent judgment of the Supreme Court.
11. The law on the point, however, is contained in Article 2 clause (g)which defines intoxicants. It states that intoxicant means an article specified in the Schedule. The serial No.4 of the Schedule on the other hand, states that opium and opium derivatives as defined in the Dangerous Drugs Act, 1930. The clause (f) and sub-clauses (iv) and (v) of section 2 of it are as follows: -
"Opium derivative" means--
(iv) Diacetylmorphire, that is, the alkaloid, also known as diamorphine or heroin, having the chemical formula C21 H23 N05, and its salts; and
(iv) all preparations, officinal and non-officinal, containing more than 0.2 per cent of morphine, or containing any diacetylmorphine.
12. In any case, no question in the cross-examination has been asked and no request was made to find out the percentage. The report on the other hand, says that "all the above packets contained heroin. It, therefore, suggests that the entire material or the major portion of the same must be heroin according to the discription.
13. As said above the quantity recovered is three kilograms while life sentence can be awarded for quantity over 10 grams. The sentence already awarded thus is much inadequate. Consequently, we enhance the sentence to ten years' R.I., with whipping numbering 15 stripes and a fine of Rs.10,000. In default of payment of fine he shall suffer two years' R.I., further.
M.Y.H/393/F.Sh Appeal dismissed.