' M. JAVED BUTTAR, J.---The appellant, Mavaiz Khan, was tried by Judge Special Court, Anti- Narcotics, Lahore, in case F.I.R. No. 71 of 2000, dated 16-10-2000, registered at Police Station ANF, Lahore, for the offence under section 9(c) of Control of Narcotic Substances Act, 1997, tier the recovery of narcotics (detailed below) weighing 13 kilograms and 600 grams. The learned trial Court, vide its judgment, dated 13-9-2001, convicted the appellant under section 9(c) of Control of Narcotic Substances Act, 1997, and sentenced to imprisonment for life with a fine of Rs.5,00,000 (five lakhs) and in default of the payment of the same, to further undergo imprisonment for two years. He was, however, awarded the benefit as contemplated under section 382(b), Cr.P.C. The appellant has assailed the legality and correctness of his conviction and sentence, through this appeal.
2. The relevant facts as disclosed in complaint (Exh. PB) are that on 16-10-2000, the complainant Muhammad Arshad Khan, S.-I., Muhammad Afzal Asim, S.-I., Havaldars Darwaish Khan, Abdul Razzaq, Head Constable Shaukat Ali, Sepoys Muhammad Shahzad, Muhammad Hanif, Constables Rashad Mahmood, Muhammad Yar Wattoo, Amar Hussain, Muhammad Naeem, Drivers Muhammad Sadiq, Zulfiqar Ali, under the supervision of Captain Junaid Tayyub Kiani, Assistant Director, ANF, were present at Railway Station Okara Cantt, in the official vehicles, in connection with the checking of narcotics dealers and at about 4-00 p.m., the informer gave an information that Mavaiz alias Badmashi Khan Pathan, resident of Mohallah Fareedia, Adda Gamber, Tehsil and District Okara Cantt., dealer of narcotics was present at his Dera along with heavy quantity of narcotics and could be apprehended if raid was conducted immediately. It is further narrated in the complaint that on the receipt of this information, the raid was immediately conducted under the supervision of Captain Junaid Tayyub Kiani, Assistant Director, ANF, and the raiding party reached at Adda Gamber at 4-15 p.m., and one person with a bag in his right hand coming out of the Dera was pointed out by the informer, who on seeing the raiding party, tried to run away but was apprehended and disclosed his name etc. As Mavaiz Khan. The bag in the hand of the said person was searched. It contained 5 packets of heroin weighing one kilogram each and one packet of heroin weighing 800 grams, 6 packets of Charas of one kilogram each and one packet weighing 1.800 kilograms of opium, which was separately wrapped in a polythene bag. The complainant separated one gram of heroin from each packet of heroin, five grams of Charas from each packet of Charas and five grams of opium, as samples for chemical analysis and the 13 samples parcels and the three parcels of remaining narcotics were sealed and were taken into possession vide recovery memo. Exh.PA. The complainant, after recording the complaint at the spot, sent the same through Muhammad Naeem, Constable, to the Police Station for the registration of formal F.I.R. And continued with the investigation at the spot.
3. The accused/appellant was formally charged under section 9(c) of Control of Narcotic Substances Act, 1997, on 24-5-2001, to which he pleaded not guilty and claimed trial.
4. P.W. 1, Muhammad Sarwar, A.S.-I., received 16 sealed parcels of Charas, Opium and Heroin along with other case property, from the I.0, on 16-10-2000, and handed over 13 sealed parcels of Heroin, Charas and opium to Constable Rashad Mahmood, on 19-10-2000, for delivering the same in the office of Chemical Examiner.
5. P.W.2, Constable Rashad Mahmood, was the member of the raiding party. He supported the complaint and the prosecution case. He is also witness of the recovery memo. Exh.PA. He further stated that heroin (P1), Charas (P2) and Opium (P3) were available in the Court. He was handed over 13 sealed parcels, which were said to contain heroin, Charas and opium, on 19-10-2000, from Moharrar Muhammad Sarwar, A.S.-I., and he delivered the same in the office of Chemical Examiner on the same date. In the cross-examination, he has stated that the raiding party went to Okara Cantt. Railway Station and he did not know as to why the Incharge of raiding party took them to Railway Station, Okara Cantt. He also stated that they did not go to Okara Cantt. On any specific secret information and that the informer separately informed Arshad Khan, S.-I.
6. P.W.3, Arshad Khan, S.-I./ Complainant/1.0. Supported his complaint. He further stated that the formal F.I.R. (Exh.PB/1) was recorded by Qadeer Baig, whose handwriting and signatures were familiar to him and that after sending the complaint to the Police Station, he drafted the site-plan without scale (Exh.PC), recorded the statements of P.Ws, under section 161, Cr.P.C., deposited the case property with the Moharrar after his return to the Police Station and on the receipt of the positive report of Chemical Examiner (Exh. PD) recorded the statements of P.Ws. In respect of sending the parcels to the office of Chemical Examiner, found the accused/appellant in the investigation as guilty and challaned him. In the cross-examination, he stated that the informer was not previously known to him and that the informer had informed him about the accused.
7. The Special Public Prosecutor gave up Qadeer Ahmad Baig and Shaukat Ali, Constable, as unnecessary.
8. The appellant in his statement under section 342, Cr.P.C., answered Question No.5 as to why this case against him, as follows:-- "I am innocent. I was arrested by the police under suspicion and later on the ANF Authorities with the connivance of Zakir and Asif Sarrana involved, me in this case falsely while they were let off. The P.Ws. Deposed against me who were not independent P.Ws. And were under the influence of their senior officers. They made a case against me to show their efficiency. Huge quantity has been planted upon me to made the case grievous in nature."
9. The accused/appellant opted not to appear as his own witness under section 340(2), Cr.P.C., but produced in his defence D.W.1 Muhammad Aslam and D.W.2 Muhammad Safdar.
10. Both the defence witnesses have stated that they were present at the time of raid and apprehension of the accused and nothing was recovered from the accused. Both of the them further stated that they had not given any application to any police officer about the innocence of the accused.
11. We have heard the learned counsel for the appellant, learned counsel for the State and have also seen the record, with their assistance.
12. It is submitted by the learned counsel for the appellant that the appellant was involved ,in the present case falsely, in a mala fide manner, the prosecution story is a concoction, the appellant has been involved on the pointation of two persons namely Asif Sarrana and Zakir, who were with the police in handcuffs, at the time of the raid, they were inimical to the appellant and on their asking, the appellant has been involved in the present case, that there are contradictions in the statements of P.W.2 and P.W.3, P.W.2 stated that they went in three vehicles whereas P.W.3 has stated that they went in two vehicles, P.W.2 has stated that they ate their lunch at 1-30 or 2-00 p.m.
Whereas P.W.3 has stated that they did not take any meals, that it is not understandable that why the informer disclosed the information to the complainant, who was in civilian clothes and not to the Incharge of the raiding party namely Captain Junaid Tayyab Kiani, that it is also not understandable that why all the members of the raiding party remained at Okara Cantt. Railway Station for more than three hours, that the D.Ws. Have categorically stated that they were present at the time when the accused/appellant was apprehended and nothing was recovered from him, that it is an admitted position that many persons belonging to the general public had gathered at the time of the appellant's arrest but none of them was associated in the recoyery proceedings, that the non-association of the members of the general public in the recovery proceedings amounts to violating the provisions of section 103, Cr.P.C., that the raid was conducted on the receipt of a secret information, yet no steps were taken for obtaining search warrants, therefore, the provisions of sections 20, 21 and 22 of Control of Narcotic Substances Act, 1997, were violated, that a very small quantity of the narcotics was sent to the office of Chemical Examiner for analysis and at the most, the appellant is liable to be punished only for that narcotics, which was sent to the office of Chemical Examiner. The learned counsel, in support of his contentions, has placed his reliance no Hakam Ali v. The State (2002 PCr.LJ 1865), State through A.-G, Sindh, Karachi v. Hemjoo (2003 SCM R 881), Damsaz Khan v. The State (2002 M LD 621) and Amanullah alias Aman v. The State (2000 PCr.LJ 1536). In Hakam Ali v. The State (supra), a Division Bench of Karachi High Court held that there were material contradictions in the evidence of the prosecution witnesses, no independent witness was examined and the prosecution case was doubtful and on the basis of above findings, conviction and sentence awarded to the accused by the trial Court, under section 9(b) of Control of Narcotic Substances Act, 1997, was set aside and the accused was acquitted, in circumstances. In State through A.-G, Sindh, Karachi, v. Hemjoo (supra), Excise Inspector on receipt of inforination went to the house of accused, made his personal search and then by making house search recovered "Charas" weighing 1 kg from the bedroom of the house. The accused faced the trial for the charge under section 9(b) of Control of Narcotic Substances Act, 1997. The trial Court finding the accused guilty of the charge, convicted him accordingly and sentenced him to five years R.I. A Division Bench of High Court of Sindh at Hyderabad, in appeal, acquitted the accused from the charge mainly on thg ground that despite availability of independent persons only members of raiding party were cited as recovery witnesses and withholding the public witnesses made the recovery doubtful. The appeal of the State was dismissed by the Hon'ble Supreme Court.
It was held that in the present case, Excise Inspector on receipt of information went to the house of respondent and made his personal search and recovered Charas by making house search, without satisfying the requirements of section 21 of Control of Narcotic Substances Act, 1997, and that "The combined study of sections 20.And 21 of the Control of Narcotic Substances Act, 1997 would show that only in exceptional cases in which the search warrant cannot possibly be obtained-before conducting the raid, an officer authorized in this behalf can proceed for conduct of raid without the warrant but this power cannot be allowed to be used in every case in the normal circumstances". It was further found that the Excise Inspector on information could conveniently obtain the search warrant from the Court of Special Judge but he having felt no necessity of such warrant, transgressed the authority of law which would make the search of house illegal. In Damsaz Khan v. The State (supra), a Division Bench of Peshawar High Court set aside the conviction and sentence awarded to the accused by the trial Court and acquitted him of the charge under Article 3 of Prohibition (Enforcement of Hadd) Order IV of 1979, on the grounds that two star witnesses of the prosecution were inconsistent on almost every material facts of the case, even the statements of the two witnesses regarding mode in which the raid was conducted and the police party entered the house were contradictory to each other and the recoveries were doubtful. In Amanullah alias Aman v. The State (supra), a Division Bench of this Court, on finding that the appellants were merely carriers, reduced the sentence of life imprisonment to that of 10 years' R.I.
13. The learned Special Prosecutor, while vehemently opposing the appeal, has submitted that the secret information was received at about 4-00 p.m. At the Railway Station and the raid was immediately conducted thereafter and there was no time for obtaining search warrants etc., hence the provisions of sections 20, 21 and 22 of Control of Narcotic Substances Act, 1997, have not been violated and under section 25 of Control of Narcotic Substances Act, 1997, the provisions of section 103, Cr.P.C. Have been specifically excluded, therefore, non-association of the members of the general public in the recovery proceedings, is not fatal to the prosecution case. It has further been argued that the defence story that the accused/appellant has been falsely involved on the asking of aforementioned/Asif Sarrana and Zakir, is merely an after thought, it has not been explained by the defence as to what was the nature of the enmity of the appellant with the aforementioned or what was the nature of the influence of the aforementioned with the ANF Authorities or the Police. In the end, it has been submitted that there is no hard and fast rule that how much quantity of the recovered narcotics should be sent to Chemical Examiner for analysis and even otherwise the office of the Chemical Examiner has repeatedly asked the prosecution to send a very small quantity of recover narcotics for chemical analysis as there is danger of its misuse and that the accused guilty of such-like offences should not be dealt with leniently. The learned Prosecutor has also placed his reliance on The State through Force Commander, Anti-Narcotics Force, Quetta v.
Abdul Qahir (PLD 2002 Supreme Court 321) and Afzaal Ahmed v. The State (2003 SCM R 573). In The State through Force Commander, Anti-Narcotics Force, Quetta v. Abdul Qahir (supra), the trial Court on the basis of recovery of 2 kgs. Of Charas from the possession of the accused convicted him under section 9(c) of Control of Narcotic Substances Act, 1997, and sentenced to imprisonment for life with a fine of Rs.10,00,000 and in default in the payment of fine, he was directed to further undergo imprisonment for a period of two years. On appeal, High. Court of Balochistan reduced the sentence to that of 4-1/2 years R.I. And fine of Rs.10,000 and in default in payment of fine, to further undergo three months' S.-I. The State assailed the judgment passed by the High Court of Balochistan, through petitioner for leave to appeal. The Hon'ble Supreme Court granted the leave to appeal. It has been observed that "there is no cavil with the proposition that discretion vests in the Courts in awarding adequate sentence but it is required to be exercised judicially". Otherwise the object of awarding sentence to accused against whom guilt has been established successfully by the prosecution, will be frustrated. It was observed that keeping in mind that 2 Kgs. Of Charas was recovered from the possession of respondent, he was not liable to the sentence to the extent of only four and a half years' imprisonment with fine of Rs.10,000. In Afzaal Ahmed v. The State (supra), Hon'ble Supreme Court, while refusing leave, observed in paras 4 and 6 of the order as follows:-- "(4) It has been repeatedly held by his Court that members of the public were reluctant to offer themselves as witnesses in criminal cases and that in the circumstances no adverse inference could be drawn against the prosecution for not associating such-like persons as witnesses.
Needless to add that the members of the police force were competent-witnesses in the eyes of law and could be credited with veracity unless it could be demonstrated that they were false witnesses and had maliciously accused an innocent person of the commission of an offence for ulterior motives. No such reason was shown to us which could persuade us to hold, at least for the purposes of the present petition, that the complainant Inspector and other members of the Police party had any ulterior purpose in involving the petitioner in the crime in question."
"(6) Taking a sample consisting of one gram from the quantity of narcotics allegedly recovered cannot be said to be fatal to the prosecution unless it could be established, through evidence, that such a quantity of narcotics had not been taken from the recovered quantity or that such quantity was not sufficient for a proper analysis of the same. No facts or circumstances are available, at least for the present, to establish any such situation."
14. The appellant was caught red handed with huge quantity of narcotics. The recovery witnesses (P.W.2 and P.W.3) are consistent and confidence inspiring. The contradictions in their statements, pointed out by the learned counsel for the appellant, are minor and not material. The recovery witnesses cannot be disbelieved merely because they are police officials. The police officials are competent witnesses in the eyes of law. There is nothing on the record to suggest mala fide on the part of the police officials. The members of the public are generally reluctant to offer themselves as witnesses in such-like cases and, therefore, their non-association in the recovery proceedings is not fatal to the prosecution case. Even otherwise, provisions of section 103, Cr.P.C.. Stand specifically excluded under section 25 of Control of Narcotic Substances Act, 1997. We also find that under the circumstances there was no violation of sections 20 and 21 of Control of Narcotic Substances Act, 1997, as the secret information was disclosed at the Railway Station and there was no time to arrange search warrants. The Authorized Officer, thus, correctly proceeded with the raid without the warrants.
15. The defence plea that the accused/appellant was falsely involved at the behest of the aforementioned Asif Sarrana and Zakir, has been examined by us in depth. It has no merit. It seems to be an afterthought. P.W.2, Rashad Mahmood, who was also member of the raiding party, was not put any suggestion in this regard and for the first time, such suggestion was put to P.Ws.3, Arshad Khan. It has not been explained that what was the nature of enmity of the appellant with the aforementioned Asif Sarrana and Zakir and similarly it has also not been explained that what was the nature of influence of those two over ANF Authorities or the Police Authorities, which allegedly compelled the ANF Authorities as well as Police Authorities to take steps under their directions. The depositions of the defence witnesses (D.W.1 and D.W.2) are not believable. They never came forward before the investigating agencies asserting appellant's innocence and admittedly never gave any application, in this regard, to any Police Officer.
16. Similarly, the argument of the learned counsel for the appellant that a very small quantity of recovered substances was sent as samples for chemical analysis and the appellant, in the alternate, is liable to be punished only for the quantity, which was sent for chemical analysis, has also no force. Guidance in this regard has been provided by the Hon'ble Supreme Court in Afzaal Ahmed v. The State (supra). Small quantity sent as samples for chemical analysis is not fatal to the prosecution case. Even otherwise, there is no evidence and there is no allegation that such quantity had not been taken from the recovered quantity.
17. In view of the above mentioned, we find no merit in this appeal, which is accordingly dismissed.