' TARIQ PERVEZ, J.--- Pursuant to registration of case F.I.R. No,87, dated 26-11-2001 where one of the accused was Fazle-Rahim, had during investigation disclosed that huge quantity of narcotic are stored in the house of Nazeem Khan the present appellant, police party raided the house of Nazeem Khan situated at Bashir Abad Pajaggi Road, Peshawar.
' During the house search 35 Kgs. Of heroin contained in 35 packets was recovered besides two kalashnikovs, a pistol and live rounds of the kalashnikovs and pistol. Police also recovered Pakistani Currency, Prize. Bonds, U.S: Dollars and two bags each weighing 25 Kgs. Containing some powder character not identifiable.
' Nazeem Khan appellant who was present in the 'house was accordingly arrested.
2. During investigation police found that besides the present appellant Nazeem, Jan Nisar and Nawab Sher are accomplices of the appellant but they are absconders.
3. Appellant was tried by learned Judge Special Court (C.N.S.A.) and vide judgment, dated 11-7- 2003 he was found guilty of offence under section 9, C.N.S.A. And has been awarded imprisonment of six years' R.I. With a fine of Rs, four lac and in default to undergo four years' S.I. With benefit of section 382-B, Cr.P.C.
' Three motor vehicles which were found parked in the premises of the house raided since were not claimed by Nazeem Khan appellant nor any other claimant appeared during trial were, therefore, confiscated to the State.
4. The recovered articles were taken into possession through memo. Exh.P.W./1 in presence of marginal witnesses i,e, Ihsanul Haq and Syed Rahat Ali Shah both Inspectors of A.N.F.
5. Investigating Officer has separated from each packet out of 35 one gram and prepared 35 parcels, sent the same to Chemical Laboratory for analysis and report Exh.P.W.3/4 was received which is in positive.
' The suspected powder was also sent through separate parcel but its exact chemical nature could not be determined, anyhow, it did not contain heroin.
6. To prove the charge, prosecution has examined Humayun (P.W.1) who on receipt of Murasila incorporated its contents in F.I.R. Exh.P.A.
' Syed Rahat Ali Shah, Inspector appeared as P.W.2 and his examination-in-chief has covered all the articles mentioned in recovery memo. Exh. P . W . 2/1 .
' Third witness of the prosecution was Samin Jan Khan, Inspector (P.W.3) who has conducted the raid, drafted the Murasila, prepared the recovery memos., arrested the accused and investigated the case. Rest of the prosecution witnesses was abandoned.
' After close of the prosecution evidence, Nazeem Khan was examined under section 342, Cr.P.C. In his statement he has denied the recovery of narcotic from his possession, he has denied the recovery of narcotic from the premises under his possession but admits the recovery of other non- incriminating articles including U.S. Dollars and Pakistani Currency etc.
7. Main contention of the learned counsel appearing for the appellant is that appellant is residing in a house with address "Masjid Waali Gali Pajaggi Road Peshawar" whereas the house searched and from where the alleged recoveries are made was situated on Pajaggi Road which is some other premises. He next argued that it is a case of misidentification because the actual culprit of the case is Naseem but because of similarity in names appellant whose name is Nazeem Khan has been falsely enroped. Learned counsel argued that the house which was allegedly searched does not exclusively belong to the appellant and his other-thirteen brothers and sisters were jointly residing therein, therefore, the exclusive conscious knowledge and possession of the appellant is not proved.
8. 'Learned counsel argued that appellant has been made a scapegoat on the statement of another accused namely, Fazle Rahim, who was caught in case F.I.R. No,87 and who in order to save his skin has joined hands with the police for making out a false case against the appellant.
9. Our this judgment shall dispose of two connected matters, one is the appeal in hand, referred to above and the second appeal is filed by State through Mr. Tariq Khan Kakar, Advocate requesting for enhancement of the sentence awarded to Nazeem Khan respondent in the second appeal.
10. Learned counsel appearing for the State (A.N.F.) has argued that Nazeem Khan is member of international gang dealing in narcotic business and he has accumulated huge amount of wealth including property through smuggling of the narcotic. He argued that recovery of 35 Kgs. Heroin and positive report of the Chemical Examiner proving that the narcotic recovered are heroin and because appellant has not disputed his presence except he disputes the premises wherefrom the narcotic were recovered, has decisively proved that the appellant is involved in the offence of not only dealing in narcotic but possessing huge quantity.
' He argued that though the accused appellant has attempted to make out a case that his house is other than the house wherefrom narcotic were recovered but unsuccessfully.
' Regarding occupation of the house by other inhabitants it. Is submitted that Samin Jan has categorically denied the suggestion and in fact has stated that the house in question was in the exclusive possession of the accused who is living in it alongwith his family members. His submission is that the family members would be his wife and children and none else.
11. During the course of investigation the heroin recovered was sent for second opinion of the Chemical Examiner to National Institute of Health Drugs Control and Traditional Medicines Division, Islamabad and per such report the actual heroin contained had come to round about 7 to 8 Kgs., on the basis of percentage. It was, therefore, that the learned trial Judge has taken such quantity to be heroin received and has accordingly sentenced the appellant.
12. In cases of narcotic prosecution generally produces two witnesses, one to prove the recovery and the other is the Investigating Officer. In fact both these witnesses become eye-witnesses of the entire episode. The testimony of eye-witnesses is generally discarded if the same is tainted with ulterior motives like strained relations or enmity of the witnesses to falsely depose against the accused.
13. In this case both these witnesses of the prosecution namely, Syed Rahat Ali Shah and Samin Jan are consistent regarding premises from where the contraband was recovered. They are both consistent that at the time of recovery, Nazeem Khan appellant was present. Appellant has not denied his arrest and he has not denied the recovery of US Dollars and Pakistani Currency but he only denies the venue of the crime.
14. Where an accused person takes the plea challenging the venue, he is to lead some evidence and if not possible shall create some reasonable doubt in the case of the prosecution regarding shifting of the venue.
15. Charge was framed against the appellant on 19-9-2002 and in the first paragraph his residence is recorded "Bashir Abad Pajaggi Road Masjid Waali Gali Tehsil and District Peshawar". He has never challenged such address when the charge was framed. Even the site plan would indicate that the house is situated in Masjid Waali Gali.
' No evidence is led that the house in question is inhabited by others. The accused if was taking the plea could have conveniently produced some of his brothers to make out a case that the house is jointly occupied.
16. We do not intend to say that burden was shifted on the accused but where there is direct evidence of the prosecution to which in rebuttal an accused person takes a different plea as against version of the prosecution, it becomes his liability to substantiate his version if not beyond reasonable doubts but at least to create a doubt in a prudent mind about the version advanced by the prosecution.
17. It has become a practice that in narcotic cases accused invariably takes the plea of false implication. To raise such plea is very easy but to substantiate the same it is for the defence to lay down some foundation by suggesting to the witnesses some previous enmity, some personal objective or motives.
' False implication is again not possible nor should be inferred when quantity of the narcotic recovered is huge like in the instant case. There may be cases where police might be motivated to involve some innocent person but such object can be achieved conveniently by planting few grams of heroin but not quantity like 35 Kgs. Of heroin.
' As in this case the prosecution has produced sufficient evidence which has gone unshaken in the very lengthy cross-examination and because the accused is arrested on the spot, the case against him stands proved. The conviction and sentence recorded by the, learned trial Judge is maintained and his appeal against conviction is dismissed.
18. State has filed appeal for the enhancement of the sentence. This Court would not interfere with quantum of sentence unless it is shown that the same is illegal. Under section 9(c) C.N.S.A. Where the quantity of narcotic recovered is proved to be beyond 10 Kgs., no discretion is left with the Court but to sentence the accused to life imprisonment. Otherwise, when the quantity is less than 10 Kgs., the discretion is left with the Court in awarding the sentence. As we have held that the sentence is not illegal, therefore, we do not find good reason to enhance the sentence. The appeal filed by the State is also dismissed.