Muhammad Muzammal Khan, J.--This judgment proposes to decide three connected matters, one Criminal Appeal in hand, the other Criminal Appeal No, 535 of 2003 and the third Criminal Revision No, 23 of 2004, which arise out of the same judgment and require determination of alike points of law and facts. Both the above noted appeals are directed against the judgment dated 4.9.2003 passed by the learned Judge Special Court (CNS) Rawalpindi convicting Zulfiqar Ali appellant under Section 9-C read with Section 14/15 of Control of Narcotic Substances Act, 1997 sentencing him to imprisonment for life alongwith fine of Rs, 7,00,000/- and in case of default in payment of fine, to further undergo to 5 years S.I and convicting the appellant Mazhar Shah under the same provisions of law to under go 10 years R.I. with a fine of Rs, 1,00,000/- and in default in payment of fine to further undergo R.I. for 2 years. Both these appellants were, however, given the benefit of Section 382-B Cr.P.C.
2. Gravamen of the charge, as it appears from the complaint Ex. P.A. recorded on 10.5.2001 at 5.45 p.m. G.T. Road, Mullan Mansoor, Attock by Shahzad All Kawash, Inspector, is that on spy information regarding transportation of a huge quantity of contraband material through "Hunda Civic" Motor Car with Registration No, B-2041-Mardan, a raiding party headed by the complainant and Mubarik Inspector was formed who on Nakabandi at 6.45 a.m intercepted the motorcar with Registration No, B2041-Mardan, coming from Peshawar which was being driven by Zulfiqar All appellant and on its front passenger seat Raza All Shah son of Nussrat Shah was sitting. The motorcar was searched and 55 packets of charas concealed in the door towards the driving seat, wraped in black shapper bag alongwith opium, was recovered. On weighing, charas became 67 kilograms while opium 2 kilograms. Small quantity of charas from each packet of chards was separated and was made into parcels Ex. P.1. Like wise, 10 grams of opium was also separated as sample for chemical analysis and the remaining opium was sealed into parcel Ex. P.2 and all these packets were sealed with the seal of SAK and were secured vide recovery memo Ex. P.B attested by Shaukat All ASI and Muhammad Rukhsar Head Constable, registration book Ex. P.1. and the motor car Ex. P.3 were taken into possession vide recovery memo Ex P.C., attested by the same witnesses. An amount of Rs, 2,000/- Ex. P.9/1-2, one chit Ex. P.10 wrist watch Ex. P.11 and gold ring Ex. P.12 were also taken into possession on personal search of the appellant Zulfiqar Ali. An amount of Rs, 210 Ex. P.4/1- 3, driving licence Ex. P.5, Identity Card Ex. P.6 and Mobile Phone Ex. P.7 were secured through recovery Ex. P.E on personal search of Raza Ali Shah, the co accused of the appellants. All these recovery memos were also attested by the above noted witnesses. Complaint alongwith the article recovered, the case property and the custody of the Zulfiqar All appellant and his co accused Raza Ali Shah was handed over to Mubarik Ali Khan for further investigation who transmitted those to Police Station through Mushtaq Ahmad constable for registration of formal FIR Ex. PA/1.. Mubarik Ali Khan Inspector recorded the statements of PWs under Section 161 Cr.P.C. prepared site-plan Ex. P.F. and after receipt of chemical examiner report -Ex. P.H submitted the incomplete challan to the Court for its trial.
3. Mubarik All Khan Inspector during the investigation of the case got warrants of arrest. of Mazhar Shah appellant. on the basis of information gathered from chit Ex. P.1 which was recovered from the possession of Zulfiqar Ali appellant to the effect that recovered Narcotics were to be supplied to him. The appellant Mazhar Shah could not be arrested but subsequently himself appeared before the Investigating officer on 20.10.2001.
4. Since Mazhar Shah appellant could not be arrested till submission of incomplete challan, the trial Court on 16.8.2001 framed challan against Zulfiqar Ali appellant and Raza Ali Shah to which the latter pleaded guilty but Zufiqar All did not plead guilty and claimed trial. Raza Ali Shah on account of his confession, was sentenced to undergo life imprisonment with a fine of Rs, 7,00,000/- on 16.1.2001 by the trial Court, as noted above. Subsequently when Mazhar Shah appellant himself surrendered before the police, complete challan of the case was submitted and he was charged 'on 22.3.2002 under Section 9-C read with Sections 14/15 of CNSA 1997 to which he did not plead guilty and then the trial of the case commenced against both the appellants.
5. Prosecution in order to prove guilt of the appellants, produced 7 witnesses. PW.1 Muhammad Ashraf Mohirror H.0 deposed that he kept the case property and on 15.5.2001 handed over 2 samples parcels to Shafqaat Ahmad H.C. (PW.2) for onward transmission to the office of Chemical Examiner.
PW.2 Shafqaat Ahmad H.C. proved intact transmission of two sample parcels to the office of Chemical Examiner and PW.3 Rasheed Ahmad ASI appeared in the witness box to prove recording of FIR Ex. P.A/1 according to the complaint received by him. PW.4 Mubarik Ali Khan appeared as recovery witnesses/investigating officer and rendered corroboration to prosecution version in the complaint and the statements of PWs. He also deposed that lie took into custody of Mazhar Shah appellant on 20.10.2001 when he appeared before him, besides proving the site-plan and investigation done by him at the spot.
PW.5 Muhammad Rukhsar H.0 was examined .to prove the recovery memos which were deposed by him to have been singed by him. These witnesses also supported the prosecution version in the complaint, in verbatim.
PW.6 Shahzad Ali Kawash Inspector/complainant appeared in the witnesses box and reiterated averments of the complaint Ex. P.A and proved recovery of Maras and opium from the vehicle driven by Zulfiqar Ali (appellant in Crl. Appeal No, 535 of 2003).
PW.7 Gul Dad. Khan deposed that on 11.5.2001 Raza Ali Shah convict and Zulfiqar Ali appellant disclosed that narcotics recovered, were to be transported by them to Mazhar Shah appellant on the address noted in chit Ex. P.10. This witness further deposed that Mazhar Shah appellant himself appeared in the Police Station on 20.10.2001 when he was arrested by Mubarik Ali Inspector and on his search Rs, 300/- were recovered which were taken into possession through recovery memo Ex.
P.8.
6. After recording of .prosecution evidence, Shaukat Ali ASI and Manzoor Hussain constables were given up being un-necessary and after tendering in evidence Chemical Examiner's report as Ex. P.H. the prosecution evidence was closed.
7. Statements of the appellants under Section 342 Cr.P.C. were recorded on 29.9.2003. The appellant Zulfiqar Ali in reply to Question No, 2 regarding recovery of Narcotics answered in the following manner:-- "I was not in knowledge of any thing/narcotics concealed in said vehicle. Raza Shah my co- accused/convict earlier got a car on rent from Shahid Motor Committee Chowk which met an accident near Nathia Gali. Said Raza Ali had some dispute with Shahid Motors in respect of said Car. On fateful day Raza All my co-accused came to me who got another car bearing Registration No, B-2041 (Ex. P.3 from Jan Motors Peshawar. I was asked by Raza to resolve the dispute with Shahid Motors at Rawalpindi as well as to drive the vehicle to Rawalpindi as dues to earlier accident he was not able to drive the same. I had no concern with the recovered narcotics nor was in my knowledge."
8. Zulfiqar Ali appellant refuted the recovery of chit Ex. P.10 from his possession and denied his concern with Mazhar Shah appellant. He also stated that Raza Ali Shah concealed the recovered narcotics and he had no knowledge of it. He pleaded innocence and refused to make statement oath under Section 340 (2) Cr.P.C. or to produce any defence evidence.
9. The appellant Mazhar Shah also denied knowledge of the narcotics placed in cavity of the vehicle and asserted that on ganin knowledge of registration of case he himself appeared before the police. This appellant also did not opt to make statement on oath under Section 340(2) Cr.P.C. or to produce defence evidence. At the conclusion of the trial, the trial Court convicted both the appellant, as noted above, whereafter the, filed 2 separate appeals against the judgment dated 4.9.2003. Zulfiqar Ali appellant filed jail appeal in which Ch. Aftab Ahmad Gujjar Advocat represented him and-the other appellant was represented' through Syed Raz Abbas Naqvi, Advocate. Criminal Revision No, 23 of 2004 has been filed be one Jamshaid Ali claiming the confiscated motorcar with Registration No, B 2041-Mardan being its owner, with the claim that he had no knowledge transportation of narcotics therein and he was not involved in the allege occurrence.
9. Both the appellants were represented through different counsel and in the criminal revision Mr. Asim Riaz Awan Advocate appeared be they addressed similar arguments. According to them, after confession Raza Ali son of Nusrat Shah the ownership of the recovered Narcestion conviction of both the appellants was not justified. It was further argued the as a matter of fact convict was involved in transportation of the recover contraband and appellant Zulfiqar Ali being his friend/relation joined him is the journey and drove the vehicle on his request, other wise there is no evidence on the file connecting him with the offence charged. It was further submitted that Mazhar Shah appellant was arrested on the basis of Chit Ex,. P.10 allegedly recovered from the person of Zulfiqar Ali appellant but the same was not connected with Mazhar Shah appellant through any other independent corroborative evidence without which, his conviction is no Sustainable. The learned counsel for the appellants also contended that then are major discrepancies/contradictions between the statement of prosecution witnesses, as such, their convictions cannot be maintained on such evidence. It was also emphasized that no private person was joined in the recovery proceedings and no such witness was cited by the prosecution in derogation of provisions of Section 103 Cr.P.C. They also urged that since entire recovered contraband was not sent for chemical examination, the appellants could only be punished under Section 9-B of the Act for quantity examined by the Chemical Examiner. Status of the PWs to depose against the appellants in their official capacity was also criticized on the ground that they being subordinates to the complainant/Investigating officer had falsely implicated the appellants just to show their efficiency. In the last, the learned counsel for the appellants urged that punishment is very harsh and in view of confession regarding ownership of the recovered narcotics by Raza Ali, their sentences may be reduced. The learned counsel for the revision petitioner argued that the vehicle used by the main culprit was owned by the petitioner wherein narcotics were being transmitted without his knowledge thus the same was incorrectly confiscated through the impugned judgment.
10.The learned counsel appearing on behalf of the State, refuted the arguments of the appellants, as well as, that of the revision petitioner, and supporting the judgment of the trial Court urged that prosecution has proved its case beyond any shadow of doubt. According to them, recovery of huge quantity of charas weighing 67 kilograms and opium weighing 2 kilograms from the possession of the appellants was proved by the PWs, statements of whom could not be shattered by the defence inspite of lengthy cross-examination. Denying the contradictions/discrepancies between the statements of PWs, it was submitted that there is no such material contradiction, on the basis of which trial of the case can be said to have vitiated. It was submitted that in the case of narcotics Section 103 Cr.P.C. is not applicable.
11.We have minutely considered the respective arguments of the learned counsel for the parties and have examined the entire record with their assistance. All the 7 PWs produced by the prosecution have supported the recovery of 67 kilograms of charas and 2 kilograms of opium from the vehicle which was being driven by Zulfiqar Ali appellant, which otherwise, is admitted.
Incriminating statement of the prosecution witnesses on oath were enough to connect the appellants with the transportation of a huge quantity of contraband material. Defence could not prove as to why police would involve the appellants falsely especially when none of the raiding party had any enmity against them. Inspite of confession of ownership by the co-convict of the appellants i,e, Raza Ali, the appellants, were proved to have knowledge and participation in the transportation of the recovered narcotics, for the reason that Zulfiqar Ali appellant was himself driving the vehicle in the company of Raza Ali, the owner of contraband. Besides it the motorcar was owned by his real brother Jamshaid Ali who is its claimant in Criminal Revision No, 23 of 2004. It is beyond comprehension that a huge quantity of charas and opium was concealed in the door towards the driving seat of the car owned by real brother of Zulfiqar Ali without his knowledge/ Concurrence. Similarly recovery of chit Ex. P.10 from possession of Zulfiqar Ali appellant which carried address of Mazhar Shah appellant where the concealed contraband material was to be delivered, was proved which also connects the said appellant with the intentional act of transportation of narcotics. Defence could not prove how and why the name of Mazhar Shah appeared on the chit so recovered and in absence of any such explanation guilt of the appellant Mazhar Shah under Sections 14 and 15 of the Control of Narcotic Substances Act, 1997 is proved beyond any shadow of doubt.
12.Adverting to the argument that entire recovered narcotics should have been sent to Chemical Examiner and lapse of the prosecution in this behalf, should be construed to hold that the appellants are only liable to the extent of 20 grams only which falls within the mischief of Section 9- B. CNSA. This controversy stands settled by this time, through erstwhile judgment of the Hon'ble Supreme Court in the case of Ali Muhammad and another versus The State (2003 SCM R 54) followed by the other cases i,e, Gul Said Versus State (PLJ 2003 (Cr.C.) Peshawar 140) and Mst.
Anwar Bibi Versus The State (2004 P.Cr.L.J. 692) wherein relying on Section 36 of CNSA it was held that taking of small quantity out of each packet for chemical examination, was enough to prove that entire recovered material was contraband hence this stance of the appellants has no substance in it.
13.Contradictions pointed out by the learned counsel for the appellants are so minor that on the basis of those it cannot be held that trial of the case stood vitiated and at the same time, admitted recovery of huge quantity of charas and opium, cannot be doubted on the basis thereof. Such minor discrepancy if any is bound to happen by lapse of time. The occurrence in the case in hand took place on 10.5.2001 whereas prosecution evidence was recorded by the end of year 2002 and in the early months of 2003 i,e, about one and a half year later, as such, we are not ready to bank upon such minor contradictions to set aside the well reasoned judgment of the trial Court which otherwise is in consonance with the evidence on the file. Similarly. the application of Section 103 Cr.P.C. has been excluded by Section 25 of the Control of Narcotic Substances Act. 1997 Which has the over riding effect. It also goes without saying that in such like cases private individuals normally avoid, becoming witness because the persons involved in such activities belong to gangs who have their own terror. The man in street also avoids giving evidence in view of protected trials of the cases. In view of all these matters, we have no ambiguity that prosecution was under no legal obligation to cite any private individual in the investigation and to join any such witness in support of its case. Superior Courts have repeatedly held that Government employees/police- witnesses are reliable like the private witnesses unless they are proved to have some enmity against the accused. Reference in this behalf can be made to the case of Feroze Shah versus The State (2002 P.Cr.L.J. 1470) and Mirza Shah versus The State (1992 SCM R 1475). The scan of the evidence which consisted corroborative/affirmative statements of PWs left no room to hold that the impugned judgment is not sustainable.
14.For what has been discussed above, we are of the considered view that the trial Court has rightly concluded the charge against the appellants and has correctly convicted them but viewing charge against the appellant, Mazhar Shah which is under Sections 14 and 15 of the Act, we feel that his sentence is excessive hut as for as Zulfiqar Ali is concerned, he has already been dealt with leniency as he was not sentenced to death by the trial Court in view of proviso (b) Section 9-C of the Control of Narcotic Substances Act, 1997. We accordingly maintain conviction of both the appellants but reduce the sentence of only Mazhar Shah appellant who himself appeared before the police after registration of case and remained in judicial lock up till today. Mazhar Shah is a previous non convict and was not present at the time of recovery and has already suffered sentence of about three years and four months as compared to the awarded sentence of 10 years hence, we feel that this sentence, already under gone, is enough to serve the interest of justice and the intents of Control of Narcotic Substances Act, 1997 and accordingly after his sentence to the one already undergone by maintaining his fine of Rs, 1,00,0001 and in default of payment of fine to further undergo 2 years R.I. as per the impugned judgment. With this alteration of sentence of only Mazhar Shah appellant, both the appeals No, Cr1. Appeal No, 446 of 2003 and Crl. Appeal No, 535 of 2003 are dismissed.
15.Taking up the case of Jamshaid Ali the revision petitioner who had claimed ownership of the confiscated motorcar whose case is that Zar Khan of Baboo Rent Car (Respondent No, 2) rented out the vehicle used by the appellant Zulfiqar Ali convict. The petitioner never claimed ownership of the vehicle during the trial of the case and abruptly after judgment by the trial Court came up with an improbable story of renting of the car to his real brother. Relation between the convicts and the petitioner, placing/concealment of 'huge contraband material in the cavity of the car and 'contradictory stand taken by all the persons involved, disentitled him to the relief claimed. Since, the vehicle in question was used for transportation of Narcotics with knowledge of the petitioner, the same was correctly confiscated under the provisions of Control of Narcotic Substances Act, 1997, hence, Criminal Revision No, 23 of 2004 has no merit in it and is accordingly dismissed.