' SH. JAVED SARFRAZ, J.---The appellant, Muhammad Akram son of Muhammad Shafi, was tried by the learned Additional Sessions Judge, Multan, on a charge under section 9(c) of Control of Narcotic Substances Act, 1997. Vide judgment dated 10-1-2004, he was convicted under section 9(c) of Control of Narcotic Substances Act, 1997 and was sentenced to life imprisonment with a fine of Rs.1,00,000 or in default thereof, to further suffer R.I for one year. Benefit of section 382-B, Cr.P.C.
Was also extended to him.
2. Being aggrieved and dissatisfied with the conviction and sentence, the present appellant has preferred instant appeal, which is before us for consideration.
3. The brief facts of the case as narrated by the complainant Muzaffar Hussain, A.S.-I., are that on 21-8-2001 when he was present on Khanewal Road, Multan, on patrolling duty along with other police officials, he received a spy information that the accused Muhammad Akram was busy in selling Charas in front of his house. On this information, he conducted a raid upon his house along with his companions and on the pointation of informer, he apprehended the accused, who was holding a white colour cloth bag in his hand and on search of bag, 13 kilograms Charas P1 in shape of 13 bags was recovered. He separated 10 grams from each bag and made into sealed parcel and took into possession through recovery memo. Exh.PC. Thereafter the matter was investigated by Muhammad Ramzan, A.S.-I., who investigated the matter and found the accused guilty of the offence and challan was sent to Court.
4. On submission of the challan, the accused was accordingly charged under section 9(c) of Control of Narcotic Substances Act, 1997, to which he pleaded not guilty and claimed to be tried.
5. The prosecution produced as many as five witnesses namely P.W.1. Abdul Ghafoor, P.W.2. Allah Ditta, P.W.3. Muhammad Ramzan, A.S.-I., P.W.
4. Ghulam Sarwar, A.S.-I., and P.W.5 Muzaffar Hussain, A.S.-I., to prove the charge.
6. The learned DDA after tendering in evidence report of Chemical Examiner Exh. PD closed the prosecution evidence.
' The appellant/accused while recording his statement under section 342, Cr.P.C. Declined to produce defence evidence, and opted not to appear in person in the witness-box to make his statement under section 340(2), Cr.P.C. On oath.
8. P.W.1, Abdul Ghafoor, Head Constable, stated that on 21-8-2001 he received written complaint Exh.PA, sent by Muzaffar Hussain and recorded formal F.I.R. Exh.PA/1. He further stated that on the same day, Muhammad Ramzan, A.S.-I., handed over to him 14 sealed parcels out of which one was case property and the other 13 parcels were samples of Charas. He stated that he kept the said parcels in safe custody and handed them to Allah Ditta (P.W.2) on 23-8-2001 for-sending them to the office of Chemical Examiner. P.W.2, Allah Ditta, stated that on 23-8-2001, Abdul Ghafoor (P.W.1) handed over to him 13 sealed parcels of samples of Charas for sending them to Chemical Examiner, Multan, which he did so, P.W.3 is Muhammad Ramzan, A.S.-I., he stated that the investigation of this case along with case file was handed over to him on 21-8-2001 and he went to the place of recovery at 10.30 a.m. On the same day. He further stated that Muzaffar Hussain, A.S.-I.
(P.W5) handed over him the case property i.e. 13 kilograms Charas along with parcels of samples and both the quantities were in sealed parcels. He has also stated that he interrogated the accused and recorded the statements of the P.Ws. Under section 161 Cr.P.C. And also prepared the rough site-plan Exh. PB. He found the accused guilty and accordingly challaned him. The prosecution produced Muhammad Sarwar, A.S.-I., (P.W.4). He has stated that on 21-8-2001, he along with others were on patrolling duty, a spy information was passed on to Muzaffar Hussain, A.S.-I., that the accused present in the Court had narcotic substance in front of his house, on which they raided and apprehended the accused, present in the Court. He has stated that the accused was holding white colour bag, on search of which 13 kilograms Charas (P1) was recovered from that bag. Investigating Officer sepirated 10 grams Charas from each bag, 13 in number, from the whole quantity and made the samples and case property into separate sealed parcels. He stated that the Investigating Officer took the same into possession vide recovery memo. Ex.P.0 in the presence and attestation of Aqeel Ahmad and himself. Muzaffar Hussain, A.S.-I. (P.W.5) has deposed that on patrolling duty on Khanewal Road, Multan, along with other police - officials, he was informed that the accused Muhammad Akram was selling narcotics and in front of his house. Consequently, he conducted a raid along with his companions and apprehended the accused, who was holding a white colour cloth bag and on search of each bag, 13 kilograms Charas, in 13 bags, were recovered.
P.W,3, P.W.4 and P.W.5 were extensively cross-examined by the accused but all the witnesses remained firm and their testimony could not be shattered.
9. It has been submitted by the learned counsel for the appellant that according to section 21 of Control of Narcotic Substances Act, 1997, an officer, not below the rank of Sub-Inspector of Police or equivalent authorities in this behalf by the Federal Government or Provincial Government, could enter into any such building, place, premises or conveyance and seize such narcotic drugs but in the instant case raid was conducted by an A.S.-I., who was not authorized to do so and thus violation of section 21 of the Control of Narcotic Substances , Act, 1997, has been committed by the prosecution; that the warrants should have been obtained from the Court as there was no urgency relied upon 2005 PCr.LJ 76 and 2003 SCM R 881; that nothing else was recovered from the present appellant; that the conviction was too harsh and prayed for the reduction of the same.
10. Learned counsel for the State opposed the appeal and submitted that the appellant had been rightly convicted by the learned trial Court and a lenient view had already been taken, thus the appellant was not entitled to any further reduction of sentence.
11. We have heard the learned counsel for the appellant, the State, and have gone through the record with their assistance.
12. Learned counsel for the appellant has objected to this raid and search by an A.S.-I. In view of section 21 of the Control of Narcotic Substances Act, 1997 and also relied upon 2003 SCM R 881.
However, on perusal of this judgment, it transpires that the facts and circumstances of the cited case and case in hand are distinguishable. In the cited judgment, the house was searched and Charas was recovered from the bedroom, without fulfilling the requirement of section 21 of the Control of Narcotic Substances Act, 1997. In the instant case, the accused was standing in front of the house and the raiding party did not enter the house. Section 21 of Control of Narcotic Substances Act, 1997, itself authorizes the police officer in exceptional cases to proceed and conduct the raid without the warrants. The instant case falls under this exception. If the said A.S.-I.
Would have proceeded in obtaining the search warrants from the Court, the accused who was standing outside the house, would have left the place by the time the riding party would have come back with.Warrants, therefore, the said A.S.-I. Was justified in searching the accused without the search warrants and consequently, the arrest was made.
13. The other objection of the learned counsel for the appellant is that provisions of section 103 Cr.P.C. Have been violated and no independent witnesses have been associated with the raid thus the search was illegal. However, the provisions of section 103 Cr.P.C. Have been excluded from the Control of Narcotic Substances Act, 1997.
14. It was not necessary to make a search before two respectable persons of the locality. As section 103 Cr.P.C. Has been excluded, it was not necessary for the raiding party to associate two or more witnesses from the said locality. It has been held by the superior Courts that the police officials are as good witnesses as any other witness.
15. Another objection raised by the learned counsel for the appellant is that arrest and investigation was done by A.S.-I. While according to section 21 of Control of Narcotic Substances Act, 1997 only a person in the rank of 5.-I of Police or equivalent authorized officer by the Federal Government or the Provincial Government could make it. This objection has been dealt in detail by this Court in "Muhammad Hanif v. The State" (PLD 2002 Lahore-200) in which arrest and recovery was also made by A.S.-I. And not by S.-I. It was held therein:-- "We hold that though the A.S.-I., was not competent to investigate the case but it will not vitiate the decision on merits of a case and cannot be a cause for the acceptance of appeal, if the case is otherwise proved against the appellant. Learned counsel has failed to show that any prejudice has been caused to the appellant by the arrest and recovery of opium by the A.S.-I."
In the instant case also, no serious prejudice has been caused to the appellant which would show that no miscarriage of justice has been done. Reliance is placed on "Qimat Hassan v. The State"
(1999 PCr.LJ 824) in which a Division Bench of the Peshawar High Court has held that the provisions of section 21 of Control of Narcotic Substances Act, 1997 are directory and not mandatory.
16. In his statement under section 342 Cr.P.C. The appellant/accused has denied all the allegations levelled against him and has taken a plea that Muzaffar Hussain A.S.-I., had planted a false recovery upon him. The reason for the said ulterior motive was that Muzaffar Hussain had some immoral relations with some ill-reputed women to which the accused forbade him to do so resulting in exchange of some hot words and in the revenge, the said A.S.I., implicated him in this false case. However, no such evidence in support of this version has been produced by the appellant/accused. All the witnesses have deposed against him.
17. A huge quantity of 13 Kgs. Charas have been recovered from the accused, out of which 10 grams from each bag were separated and were sent for chemical analysis. According to the report of the Chemical Examiner Exh.PD, the substance was positive. No malice or enmity has been alleged and proved against the recovery witnesses by the appellant. All the witnesses have deposed regarding the time and place of occurrence and the manner in which it was effected. There is no discrepancy in this regard. However, minor discrepancies as referred by the learned counsel for the appellant are normal and not fatal to the case of the prosecution. The prosecution proved its case beyond any doubt. No legal or factual infirmity has been pointed out in the impugned judgment.
18. In light of what has been stated above, the appellant has not been able to make out a case of acquittal. He has been rightly convicted and sentenced by the learned trial Court. Learned counsel for the appellant has also failed to give any mitigating circumstances for the reduction of the sentence. As huge quantity of Charas was recovered, therefore, the appellant does not deserve any leniency whatsoever from this Court.
19. In light of what has been stated above, this appeal has no merit and is dismissed.