1. Mehta Kailash Nath Kohli, J.--This appeal has been sent by appellants Baloch Khan son of Peer Bakhsh and Asmatullah son of Nasrullah through Superintendent District Jail Quetta, against judgment dated 15th Apia, 2005, passed by Special Judge (CNS), Quetta, whereby; he has convicted the appellants under- Section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced them to suffer RI for seven years each and to pay fine of Rs, 30,000/- each, in default of payment of fine, to further undergo SI for a period of five months. Benefit of Section382-B, Cr.P.C. was also extended in favour of appellants.
2. Facts of the case, in brief, are that one Captain Rizwan Khursheed Jarral, Assistant Director Anti Narcotics Force wrote a murasla for registration of case to Incharge Anti Narcotics Force Police Station, wherein; it was alleged that on 23rd October, 2004, Anti Narcotics Force received a secret information that one person namely Baloch Khan in his house situated at Peer Muhammad Road, Ahmed Shah Street, Hudda alongwith his companion namely Asmatuallh, deal in business of narcotics; on receipt of said information, under the supervision of complainant i,e, Captain Rizwan Khursheed Jarral raiding party comprising of Muhammad Zubair ASI, constables namely Shakeel Khan, Nasir Javed, Muhammad Akram, Muhammad Ramzan, Waseem Riaz, Talib Hussain and other officials of ANF alongwith informer, at 1:00 p.m. in official vehicles proceeded towards the place of occurrence. It was further alleged that on the pointation of informer, raid was Conducted on the house of Baloch. Khan, inside the house, one person 'came out of one, room and by way of climbing up-stairs, while trying to escape fell down and sustained injuries, he was holding polythene. sack (l.5;11 ) and was overpowered, while one other persom present in the room and near to him one polythene sack ( (9.1"). ) was also lying, he alongwith alleged sack was taken into custody. It was further stated that on enquiry, injured person told his name Asmatullah son of Nasrullah caste Lehri, resident of Shaikh Manda, while the other person told his name Baloch Khan son of Peer Bakhsh, caste Lehri. It was further stated that the recovered sack from Baloch Khan was checked and eight bundles rod shaped charas, weighing 9.5 kilograms, were recovered, samples from each rod (4 grams gross) -were separated, for chemical analysis, kept in white cloth and sealed parcel was prepared, while remaining charas was kept in same sack and sealed parcel was prepared, and; parcels of recovered charqs and sample were taken into possession vide recovery memos, whereas; the sack, which was in possession of injured Asmatullah was checked and seven bundles rod shaped charas, weighing 9 kilograms were recovered. It was further stated that samples from each rod (4 grams gross) were separated for chemical analysis and sealed parcel was prepared, while remaining charas kept in same sack, and sealed parcel was prepared, and were taken into possession through recovery memos. It was further stated that memos and sealed parcels were signed by witnesses at the spot. It was stated that accused persons have committed offence of possessing, narcotics in their possession. Consequent upon said murasla, FIR No, 23 of 2004, dated 23rd October, 2004 under Section-9(c) of Control of Narcotic Substances Act, 1997 was registered with Police Station. Anti Narcotics Force, Quetta.
3. After usual investigation, appellants were sent-up to face trial before the Special Judge (CNS)
4. Quetta, charge was framed, to which the appellants did not plead guilty and claimed trial. The prosecution, to substantiate accusation against appellants, produced following evidence:-- PW-1 Captain Rizwan Khursheed, Assistant Director, ANF, Quetta (complainant) appeared in witness-box and deposed that on 23rd October, 2004, he was posted in ANF Police Station Quetta; on the same day, secret information was received that at Peer Muhammad Road, Ahmed Shah.
5. Street, Hudda, one Baloch Khan deals narcotics business in his house; on receipt of said information, a raiding party was constituted. Witness further deposed that he had also received information that one person namely Asmatullah is also involved in said business. It was deposed that at 1:00 p.m. on the pointation of informer, house of Baloch Khan was raided; on entry of raiding party in the house, one person attempted to escape, but fell down from ladder and sustained injuries, and; was holding a polythene sack, who disclosed his name Asmatullah; said sack was checked and eight bundles rod shaped charas were recovered, which were weighed and found to be 9 kilograms, while; Baloch Khan was also overpowered from inside the room, who was having one ploythene sack containing eight bundles of charas, weighing 9.5. kilograms. Witness further deposed that pieces from alleged charas were separated and for cherhical analysis and to separate sealed parcels of 4 grams charas were prepared; remaining charas was kept in sack and sealed parcel was prepared, witnesses signed the parcels. He further deposed that recovery memos of recovery charas were prepared as Ex. P/1-A and P/1-B, and; murasla (Ex: P/1-C) was prepared, witness identified his signature on the same. Witness identified accused persons present in Court to be the same.
6. In cross-examination, witness stated that he received information at 11:30 a.m. it was further stated that in roznamcha, no entry with regard to information was made. Witness stated that Force Commander Brigadier Liaquat Ali Tor had received information, he further stated that informer had not disclosed the house number. It was stated that they at 12:15 p.m. they had proceeded for raid; he further stated that place of occurrence falls within the jurisdiction of Hudda Police Station. It was stated that raid was conducted in absence of Magistrate, search warrant as well as no private witnesses was associated. It was admitted that shops and residential houses are situated on main road; it was further stated that shops and houses are also located in Ahmed Shah Streets witness further stated that door of alleged house was open, while two persons were standing outside. It was stated that at the time of entrance in the house, neither Nazim/Naib Nazim nor any person of the vicinity was associated; it was further stated that the alleged house consisted upon three rooms. Witness further stated that firstly he alongwith constables entered in the house; there was wooden 'up-stairs inside the room, it was further stated that accused came out of first room and entered in the second room, while up-stairs were fixed. It was denied that there was no ladder in any of the rooms. It was further denied that no person fell down from ladder and sustained injuries.
7. It was stated that first person was arrested within three/four minutes; voluntarily stated that it took twenty/twenty five minutes in arrest of first accused. It was further stated that there was lot of noise at the time of falling of accused. Witness stated that door of second room opens towards southern side inside the house. He further stated that accused Baloch Khan sent and stood in the second room; he also stated that when they reached in the house, Baloch Khan was present in second room. It was stated that there was mat and other sacks containing limestone in the room. Witness stated that he alongwith two/three constables and weighed the recovered charas; he further stated that they had not weighed individual rod, while the same was grossly weighed. Witness stated that he had made sample of seal and wrote case number, while parcels were sealed by constable. It was stated that the recovery memo with regard to samples obtained for chemical analysis, was not prepared. It was further stated that they were having electronic weighing scale.
8. Witness stated that he himself wrote murasla as well as memos. It was denied that Constable Mubeen Khan had written murasla and memos. Witness stated that he had not seen exercise equipments in the guest room (LA) of the house. It was also denied that on outer side the alleged house, one exercise room is situated. It was further denied that one door of the exercise room opens inside the house. It was admitted that according to Tehsil record, said house is property of Chakar Khan. Witness did not know that said Chakar Khan had rented out the said house to one Shahab-ud-din son of Mirza Khan; voluntarily stated that Baloch Khan is brother of Chakar Khan. It was denied that the time of raid Shahab-ud-din alongwith his family was residing in the alleged house. Witness showed his ignorance that out side the house, one of the persons was Shahab-ud- din, who was present there at the time of raid. It was denied that Baloch Khan alongwith his brother Chakar Khan is running health club. It was also denied that at time of raid, accused persons were present in the' health club. It was further denied that Asmatullah was guest of Baloch Khan and Chakar Khan had gone to bring tea. It was denied that they entered in the health club from inside, where they had fought with Baloch Khan. Witness denied that he had injured Asmatullah. He did not remember, Baloch Khan is resident of Spini road. He further denied that real culprits have fled away and accused present in Court have been nominated. He also denied that they had not obtained any sample for analysis: It was denied that he had manipulated whole proceedings falsely in the Police Station. Witness -denied that he has not deposed correctly.
9. PW-2 Waseem Riaz Constable deposed that on 23rd October, 2004, was posted in Police Station ANF, Quetta, on the same day, under the supervision of complainant of the case, a raiding party was constituted and at Peer Muhammad Road, Muhammad Shah Street, on pointation of informer, raid was conducted on the house of Baloch Khan. It was further deposed that when raiding party entered in the house, one person attempted to run towards up-stairs and become injured, and, was overpowered; at the relevant time, he was-holding a sack in his hand, his name was Asmatullah; on checking the sack, seven bundles of rod shaped charas, weighing 9 kilograms were recovered; four grams charas was separated for analysis and sealed parcel was prepared, while remaining charas was kept in polythene sack and sealed, and; was taken into possession through recovery memo (Ex. P/1-A), witness identified his signature on same. Witness further identified sealed parcel of sack containing charas as Article-1. (Sealed parcel was opened) Witness identified charas as Article-2 and also identified his signature on parcel. It was further deposed that accused Baloch Khan was present in the room, who was overpowered. It was further deposed that at the relevant time, he was in possession of one polythene sack, containing eight bundles rod shapped charas, was recovered and weighment was carried out at the spot and found to be 9.5 kilograms; four grams were separated for analysis, remaining charas -was sealed in parcel and was taken into possession vide recovery memo (Ex. P/1-B), witness identified his signature on recovery memo.
10. Witness also identified sealed parcel (Article-3); (parcel was opened). Witness identified charas as Article-4 and also identified his signature on same. He identified accused present in Court to be the same.
11. In cross-examination, witness stated that they were not accompanied by any Magistrate, search warrant or private person. It was admitted that the place where raid was conducted, houses are situated, door of alleged house opens towards southern side, other houses are located on left and right side of the alleged house as well as house were also situated back and front side of the said house. He did not know that there were shops in the street. It was further stated that none from nearby houses was called. Witness stated that on entering the house, three rooms were located on left side and inside the gate there was a lawn, witness did not know that apart from above anything exited there. It was further stated that on entering the house, they entered in first room, door of which opens towards northern side; it was further stated taken when they entered in the room, accused persons came out and entered in second room through intervening door inside the rooms. It was denied that in second room, there were no stairs. It was stated that accused Asmatullah was firstly overpowered, and followed the accused through intervening door. He did not know that from which was complainant of the case entered in second room. It was stated the up- stairs toward roof were located on western side of the room. Witness did not know the number of alleged house, while it was a pucca construction. It was further stated that accused fell down from stairs inside the room, at that time he was holding a sack. Witness stated that after arrest of accused Asmatullah, memo was prepared, search conducted and murasla was prepared, thereafter; room was searched, and; his statement was recorded. It was stated that from all the bundles, 4 grams charas was separated for analysis (counsel appearing for accused stated that samples for analysis were obtained from only two bundles of charas) (rods of charas were examined and it was found that from only two bundles, charas from one rod was separated. It was admitted that one bundle consists upon 100 rods. It was further stated that sample of seal is not in parcel. It was denied that outside the alleged house, there is shop wherein, people used to exercise; voluntarily stated that he had not seen exercise equipments, as he had not gone to that side. It was stated that the door of room from where second sack of charas was recovered, opens towards northern side. It was further stated that after the arrest of accused Asmatullah, they entered in second room through short way, where his other colleagues i,e, Muhammad Akram and Nasir Javed etc. had already overpowered accused Baloch Khan. Witness further stated that samples from all the bundles recovered from second room, were obtained (confronted; from two bundles, samples from four rods were obtained). Witness did not know that one rod contains ten grams; voluntarily stated that entire quantity was grossly weighed. It was further stated that complainant had recovered the charas, made weighment thereof, prepared memo, parcels and also separated samples for the purpose of analysis, therefore; accused was personally searched. Witness admitted that parcel does not contain Sample of seal. He denied that neither he entered in the house, nor in his 'presence, charas was recovered. He further denied that neither any accused ran nor became injured. Witness stated that the complainant of the case had recorded his statement.
12. It was stated that in presence of witness at the time of raid, Inspector Riaz (Investigation Officer) had not come. Witness showed his ignorance that on 15th March, 2004, one Shahab-ud-Din was residing in the alleged house. He further showed his ignorance that on arrival at the place of occurrence, Shahab-ud-din was standing outside, who thereafter left the place. It was denied that nothing was recovered from inside the house. It was further denied that he had gone in the exercise room where accused and other persons were present. It was denied that on asking the accused persons about possession of the alleged house, quarrel took place and they had injured Asmatullah. It was further denied that alleged house did not belong to Baloch Khan. It was denied that accused persons have falsely been involved in the case. Witness denied that all the proceedings were made in the Police Station.
13. PW-3 Dr. Ghulam Sarwar, Medical Officer, Civil Hospital, Quetta. He deposed that on 23rd October, 2004, at 8:00 p.m. injured Asmatuallh was produced by Zubair ASI. He examined the injured and found following injuries:-- 'Injuries.
1. Lacerated wound, frontal region of skull.
14. 2.Painful right upper arm.
3. Laceration left hand thumb, 4 Abrasion right hand. X-ray shows no any fracture.
15. Nature of injuries:-- Simple, fresh and caused by fall.
16. Witness further stated that he discharged the injured after providing medical treatment and issued certificate (Ex. P/3-A). Witness identified his signature of certificate.
17. In cross-examination, witness opined that lacerated wound can be sustained by blunt weapon. It was admitted the suggestion that ANF authorities had informed him that on account of fall, accused sustained injuries; voluntarily stated that accused himself stated that due to falling, he had sustained injuries. It was denied that accused had not hold him that he had sustained injuries on account of fall. It was admitted that injures shown ;n certificate can be sustained on account of beating.
18. PW-4 Riaz Ali, Inspector ANF, Quetta appeared in witness-box and deposed that on 23rd October, 2004, he was posted as SHO ANF Police Station; on the same day, on the basis of Murasla (Ex. P/1-C) sent by complainant of the case, he had lodged FIR (Ex. P/4-A) and started investigation. He further deposed that on the same day, he had received document and case property from complainant of the case and memo (Ex. P/4-B) was prepared, and; on the same day he had recorded statements of witnesses. Witness deposed that he had received medical certificate of injured Asmatuallh. It was further deposed that on 24th October, 2004, he alongwith complainant of the case went to the place of incident and prepared site map (Ex. P/4-C). He further deposed that he had received report of FSL (Ex. P/4-D). He further deposed that he had recorded statements of witnesses and prepared incomplete challan (Ex. P/4-E), and; after receipt of FSL report, complete chalian (Ex. P/4-F), was prepared. Witness identified his signatures on challan and map, and also; identified accused persons present in Court.
19. In cross-examination, witness stated that at 5:00 p.m. he had started investigation of the case. It was further stated that during course of investigation, he had not recorded statement of Force Commander and had also not took into possession, copy of roznamcha, wherein; it was mentioned that informer had given any information. It was denied that he had not obtained copy of roznamcha for the reason that therein it was not mentioned that informer had given information. It was further stated that first of all he had received murasla in Police Station. It was stated that Ahmed Shah Street is situated in northern-sourthern direction, which is surrounded by many houses. It was further stated that the door of house which was raided, opens towards eastern side, on entering the compound, one room situates towards west, while the other rooms located towards sought. It was stated that the rooms situated towards south of the compound, amongst which, door of only one room opens in the compound, whereas; the door of room situated towards eastern side also opens in the compound. It was admitted that two rooms situated towards south, door of only one room opens in the compound. It was stated that from main entrance door of the house, upstairs are constructed towards northern side in the compound. It was further stated that according to map (Ex. P/4-C), charas was recovered from place number 3, where accused was present, whereas; place number 4, is a place from where, accused while running, on fall sustained injuries. It was admitted that according to map, there is no up-stairs in the room. He further stated that according to map, place number 1 is a place, from where charas was recovered from accused Baloch Khan. Witness stated that he had recorded statements of witnesses in Police Station. It was further stated that on 24th October, 2004, he went to the place of incident, the door was open. He also stated that at the time of his arrival, none was in possession of the house; voluntarily stated that after the incident, ANF authorities had locked the house and only door chain was fastened. It was admitted that as per map (Ex. P/4-C), there is an exercise room in the alleged house, door of which opens inside the room. It was denied that door of exercise room, opens towards Ahmed Shah street; it was also stated that exercise equipments were also lying in the exercise room. It was admitted that alleged house is property of Chakar Khan; voluntarily stated that Chakar Khan is elder brother of accused Baloch Khan. It was denied that on 15th March, 2004, Shahab-ud-din had rented out the alleged house to Chakar Khan. It was denied that Chakar Khan had come to Police Station and had shown the rent deed. It was further denied that accused Baloch Khan and Chakar Khan were running exercise club in the alleged house, where people used to come. It was also denied that on the day of incident, accused Asmatullah came in the club for meeting the other accused and Chakar Khan had gone to bring tea. It was stated that during course- of investigation, he had not recorded statement of any inhabitant of the area with regard to residents of the alleged house, and; also he had neither recorded statements of Nazim nor Naib Nazim. It was denied that as Shahab-ud-din along-with his family was residing in the alleged house, on account of which, he had not recorded statements of Nazims. Witness further stated that he through Mubeen Khan Head Constable had sent parcel for analysis to FSL and had also sent murasla. He stated that he had written the murasla on 25th October, 2004. It was admitted that he had only sent samples for analysis, while the remaining charas was not sent for analysis. It was denied that he had not sent the remaining charas for analysis, because the recovered material was not charas. It was further denied that the material sent for analysis was obtained later on. It was also denied that accused persons were not arrested from inside the house. Witness denied that as Shahab-ud-din escaped from the scene and during course of investigation, they had quarreled with Baloch Khan. It was further denied that accused Asmatullah was tortured by them on account of which, he was injured.
20. It was also denied that he had conducted one sided false investigation in the case. Witness showed his ignorance that accused Baloch Khan is resident of Spini road. He further denied that he has deposed falsely.
21. After close of prosecution evidence, appellants were examined under Section 342, Cr.P.C. wherein; they had pleaded their innocence. They had also made their statements on oath under Section 340(2) Cr.P.C. Appellant Baloch Khan deposed that he alongwith his family are residing at Spini road, while house of his brother Chakar Khan is situated in Ahmed Shah Street, which was rented out to him by Shahab-ud-din on 15th March, 2004. He further deposed that Shahab-ud-din alongwith his family was residing in the said house, while one room was in possession of his brother Chakar Khan, one door of the room opens inside the_house, which is locked from inside the house, while the other door opens in the street. It was further deposed that the room was an exercise club.
22. Appellant further deposed that on 23rd October, 2004, he alongwith his brother were sitting in exercise club, apart from them Mehboob Ali and Abdul Hai were doing exercise; at 1:00 p.m. accused Asmatullah came there to meet Chakar Khan, who told him that his nephew is ill and he had come for opinion, as he is admitted in Al-Noor Hospital, his brother went for bringing tea, and after five/six minutes, ANF authorities entered from inside door and interrogated about the house; he told them that Shahab-ud-din is tenant of Chakar Khan, who is residing with his family; they further asked about Shahab-ud-din, he told that he is standing in the street; ANF, authorities had searched Shahab-ud-din, who was present there; the ANF authorities had told him to bring him, upon which he had quarreled with ANF authorities; Asmatullah told them not to misbehave, upon which they had beaten him and sustained injuries, thereafter; both of them were boarded in vehicle and had taken to Police Station. It was deposed that appellant had no connection with the alleged house nor he was present there. It was further deposed that alleged house consists upon two rooms on ground floor while one room is on first floor, stairs of which are in the compound.
23. Appellant pleaded his innocence and deposed that he has falsely been roped in the case.
24. In cross-examination, he stated that he is not in possession of his National Identity card; he also did not remember the date of issuance of Identity card, wherein his address is mentioned as Ahmed Shah Street, Peer Muhammad road. He stated that he is a matriculate. He admitted that in memo his address is mentioned as Ahmed Shah Street, Peer Muhammad road; he also admitted that no. document in respect of Spini road has been produced. He denied that he alongwith his family is residing in Ahmed Shah Street, Peer Muhammad road. It was further stated that he knows Shahab- ud-din for the last one year, who is Afghan national and his father's name is Mirza Khan. He stated that from the time of his arrest, he had not met him (Shahab-ud-din). It was denied that Shahab- ud-Din is not tenant of Chakar Khan. It was stated that one Iqbal and Munir Ahmed are witnesses of the rent-deed. It was denied that they had prepared Iqbal and Munir Ahmed for false statement.
25. He further stated that Chakar Khan had resided at Spini road. It was denied that the boundaries of alleged house disclosed by him, only its resident can tell the same. He stated that he used to exercise, while he had not participated in events of body building. It was denied that he does not exercise. He further stated that Abdul Hai and Mehboob Ali have no relation with him, while he knows them. It was denied that at the time of raid, he and Asmatullah were present in the house; it was further denied that except them, none was present in the alleged house; voluntarily stated that he was present in exercise room. He also denied that his brother had not gone to bring tea. It was denied nephew of Asmatuallh was not ill. He denied the suggestion that ANF authorities had not enquired him about ownership of the alleged house. He also denied the suggestion that he had not told the ANF authorities about rent-deed of Shahab-ud-din. He stated that the place from where he was arrested, he was present there for about 15/20 minutes. It was denied that the place from where he was arrested, no one was seen from the street. It was further denied that he had not told the ANF authorities that Shahab-ud-din was present with one person in the street. He denied the suggestion that ANF authorities had not gone for seeing Shahab-ud-din and; also denied that ANF authorities had not told him to search Shahab-ud-din. He denied the suggestion that at the time of raid, Asmatullah was present with him in a room, and on seeing ANF authorities, ran towards second room. It was denied that accused had not sustained injuries on account of all from stairs. It was also denied that at the relevant time, accused Asmatullah was in possession of sack, containing nine kilograms rod shaped charas. It was denied that he was having one sack on his hands, containing 9% kilograms charas. He denied the suggestion that he had not quarreled with ANF authorities; he also denied that ANF authorities had not injured Asmatullah. It was admitted that they had no enmity with ANF authorities. He denied the suggestion that he had no conversation with ANF authorities. He also denied the suggestion that charas was not recovered from him. It was denied that there is no room on the roof of alleged house. He stated that exercise room is part of the alleged house. He further denied the suggestion that at the time of arrest he was not present in the exercise room, while he was present in the house. He denied that he has deposed falsely.
26. Appellant Asmatullah in his statement recorded under Section 340(2), Cr.P.C. deposed that he is resident of Shaikh Manda and used to do colour work. He further deposed that his nephew Waqas was ill and was admitted in Al Noor hospital. It was deposed that he went to his maternal uncle Chakar Khan, in club situated at Ahmed Shah Street for consultation in respect of treatment of Waqas; Chakar Khan went to bring tea, after 5/6 minutes, ANF authorities entered in the club from inside the house and enquired from Baloch Khan about the house; Baloch Khan told that the house belongs, to Chakar Khan, which he had rented out to Shahab-ud-din upon which, ANF authorities enquired about Shahab-ud-din, Baloch Khan replied that he is standing outside in the street, Captain went to see Shahabud-din in the street but he was not present there and thereafter; Captain asked Baloch Khan to search Shahab-ud-din, Baloch Khan stated that he cannot search him, and, there was a quarrel with ANF authorities, appellant intervened upon which ANF authorities had injured him, and both of them were arrested and taken to Police Station. Appellant deposed that they are - innocent and have falsely been roped in the case.
27. In cross-examination, appellant denied that at the time of raid, he was not present in the house; voluntarily stated that he was present in the club. He denied the suggestion that ANF authorities had not asked Baloch Khan about the ownership of the house. He further denied that Baloch Khan had not told the ANF authorities that Shahab-ud-din is tenant in the alleged: house. He also denied the suggestion that Baloch Khan had not told the ANF authorities that Shahab-ud-din is present in the street. He further denied that at the time of raid, he alongwith Baloch Khan were present in the room and on seeing ANF authorities, he ran towards second room. He denied the suggestion that he sustained injuries on account of fall, from stairs of alleged house. He also denied that he had one sack in his hand containing nine kilograms rod shaped charas. Appellant denied the suggestion that there was no quarrel between Baloch and ANF authorities. He denied that he had not intervened. It was admitted that they have no enmity with ANF authorities. He stated that exercise room is a part of the alleged house. He denied the suggestion that at the time of their arrest, he was not present in the exercise room and was present in the house. He denied the suggestion that Captain had not gone to see Shahab-ud-din in the street, and also; denied that Captain had not told Baloch Khan to search Shahab-ud-din. He denied that he is residing in the alleged house. He further denied that he had not arrived for consultation with Chakar Khan. He also denied that his nephew was not ill. He denied that he and Baloch Khan used to deal in business of narcotics. He also denied that he has deposed falsely.
28. Appellants in their defence, produced following evidence:-- DW-1 Muhammad Azhar Jamal, Advocate (Notary Public, Quetta). He deposed that on 15th March, 2004, he had attested rentdeed/acknowledgement deed (Ex. D/1-A), one Identity card (Ex. D/1-B) and one Refugee Card (Ex. D/1-C), and; identified his signatures and stamp on the same.
29. In cross-examination, said witness admitted that entry of acknowledgment deeds are being made in proper register, voluntarily stated that there are different kinds of deeds, the permanent deeds are being registered by them. He stated that as acknowledgment deed (Ex. D/1-A) was temporarily, as such, the same was not registered. He denied the suggestion that temporary acknowledgment deed/rent must be registered. He admitted the suggestion that he had not made entry of (Ex. D/1- A) in the register. He denied the suggestion that Ex. D/1-A was recently executed and wasattested in back date, as such, he had not registered the same.
30. DW-2 is Doctor Muhammad Riaz, Al-Noor Hospital, Quetta. He appeared in witness-box and deposed that on 20th October, 2004 one child namely Waqas was admitted in Al-Noor hospital and was discharged on 24th October, 2004, in this respect he had produced discharge certificate (Ex. D/2) bearing seven pages.
31. In cross-examination, he stated that they used to issue discharge certificate in respect of every patient. It was admitted that it is mentioned in discharge certificate that 'Not valid for Court'.
32. Witness did not know that who had brought the child.
33. DW-3 Abdul Hai son of Muhammad Sadiq deposed that he used to exercise in the club of Chakar Khan situated in Ahmed Shah Street. He further deposed that on 23rd October, 2004, in between 1:00/2.00 p.m., he and one Mehboob as usual, were doing exercise, at that time, owner of club namely Chakar Khan and his brother Baloch Khan (accused present, in Court) were also present, in the meanwhile, accused Asmatullah came to the club and started conversation with Chakar Khan, thereafter, Chakar Khan went for bringing tea, suddenly; some persons on opening the inside door, entered in the club, some of them were wearing uniform; one person asked that who is residing in the house, upon which, Baloch Khan stated that tenant of his brother is residing in the house. It was further deposed that said person again asked that where is the tenant, Baloch Khan .replied that he was standing in front of the gate, one person went out and same none was present there, as such, they asked Baloch Khan to search him, Baloch Khan told them to wait, as he himself will come back, and in the meantime, Baloch Khan and started quarreling with ANF authorities. It was further deposed that the accused (Asmatullah) present with Baloch Khan intervened and fighting took place; witness and his friend came out In cross-examination witness stated that his duty hours are from 9:00 a.m. to 11:00 a.m. and 3:00 p.m, to 5:00 p.m.; voluntarily stated that there are occasional classes. He further stated that he used to teach English in Challenger Academy situated at Zarghoon road, Quetta and Mr. Alam Langov is the Incharge of Academy. It was stated that it was Saturday on 23rd October, 2004, as such, he had not gone to take class. It was further stated that in other institutions only Sunday is a holiday. while in Challenger Academy, they have holidays on Saturday and Sunday. He admitted the suggestion that there are also other clubs situated at Jail Road, Hudda; he further stated that the club is situated at a distance of 15/20 minutes from their house. He stated that he did not know the number of house, where he used to exercise. He stated that he has no membership card of the said club. Witness did not know the date of Eid-ul-Azha in the year of 2004, nor he remember the date of Eid-e-Milad-un-Nabi. He stated that accused persons had not hold him the date i,e, 23rd October, 2004. It was admitted that the house which was raided, is property of Baloch Khan and he had no detailed conversation with the tenant of said house. Witness denied that Chakar Khan is not residing with his family in the alleged house. Witness denied the suggestion that there is no proper exercise club. in Ahmed Shah Street; he also denied the suggestion that he does not got to exercise in the club, situated in Ahmed Shah Street. Witness stated that he knows Baloch Khan for the last about 1 1/2 year. He denied the suggestion that at the time of raid, accused persons present in Court were present in the house. He also denied that at the time of raid, accused Asmatullah was in possession of sack containing charas and he on taking the same had run. It was denied that Charas was recovered from the possession of accused persons. Witnesses stated that after two/three days, he came to know that accused persons have been arrested in narcotics case. He further stated that accused persons have no enmity with ANF authorities. Witness denied the suggestion that at the time of raid, he and his friends were not present at the spot. It was further denied that ANF authorities had not asked accused Baloch Khan about alleged house. He further denied the suggestion that Baloch Khan had not stated that tenant is residing in the alleged house; he also denied that ANF authorities had not told Baloch Khan to bring the tenant. The suggestion was denied that there was no quarrel or fight took place between accused persons and ANF authorities. Witness did not know the rank of officials who were in uniform, while they were police officials. It was admitted that prior to his present statement, he had not made any application before any Magistrate or ANF authorities in respect the incident. Witness denied the suggestion that at the instance of accused persons, he has deposed falsely.
34. DW-4 Jahangir Khan (Patwari Halqa Saddar 1) appeared in witness-box and produced recorded Ex.
35. D/4, which according to their record is correct. In cross-examination, witness stated that Ex. D/4 does not show that the said place is house or open plot. Witness admitted that as per record, it is a joint property.
36. DW-5 Chakar Khan son of. Peer Bakhsh appeared and deposed that he is residing at Spini road; he deposed stated that accused Baloch Khan is his brother and is residing with him. Witness further deposed that he is owner of a house situated in Ahmed Shah Street, the same is rented out to Shahab-ud-din son of Mirza Khan and rent deed (Ex: D/1-A) was executed (original rent deed was examined by the trial Court). He deposed that he is an agriculturist. It was stated that there is an exercise club in a room of the alleged rented house; he further stated that on 23rd October, 2004, he was present in the club, at that time, Abdul Hai and Mehboob were exercising, in the meantime; Baloch Khan came in the club, thereafter; his nephew accused Asmatullah came there and stated that his nephew namely Waqas is admitted in Al-Noor hospital, and; he has come for consultation.
37. Witness also deposed that he went for taking tea, on his way, he saw Shahab-ud-din standing with an unknown person, while Councilor Rafique told him that the alleged house has been raided, and thereafter; Shahab-ud-din made his escape good and accused persons present in Court were arrested. It was further deposed that he had gone to ANF Police Station and produced Ex. D/1 and also told to Colonel present in the police station that he has rented out the alleged house, and; his brother and nephew have falsely been involved in the case. He deposed that Colonel asked him to bring Shahab-uddin, on his return, Shahab-ud-din had gone. He also deposed that ANF authorities had beaten his nephew.
38. In cross-examination, witness stated that he does not know the number of alleged house; it was further stated that the house is situated in Municipal limits. It was also stated that he does not know the number of his house situated at Spini road; voluntarily stated that the house does not bear any number. Witness stated that the house situated in Ahmed Shah street is in his possession and denied that the said house was not rented out to any body, and; it was also denied that the rent deed is a forged document. Witness admitted the suggestion that be cannot produce the person to whom he had rented out the alleged house. He denied the suggestion that as he had not rented out the alleged house, therefore, he cannot produce the tenant. Witness stated that three/four years ago, he had purchased the alleged house. Witness admitted the suggestion that name of Shahab-ud-din as tenant, is not mentioned in Excise record. Witness denied the suggestion that there is no exercise club in the alleged house. He also denied that the accused persons were residing with him in the house situated at Ahmed Shah Street. Witness denied that accused Asmatullah had not told him that his nephew is admitted in Al-Noor Hospital. He also denied that he had not gone to bring tea. Witness denied the suggestion that Shahab-ud-din was not tenant in the alleged house, nor he was standing in the street. He denied that neither councilor Rafique was present there nor he told him that accused persons were arrested from the club. He denied the suggestion that ANF authorities had arrested the accused persons from inside the house and also denied the huge quantity of charas was recovered from their possession. Witness denied that he had not gone to ANF Police Station and he had not met with any Colonel. He denied the suggestion that usually the Colonel does not sit in Police Station. He denied that he had not produced any rent deed before the Colonel. Witness denied the suggestion that Asmatullah had fallen from stairs; voluntarily stated that stairs are located in the compound. Witness further denied that as accused persons are his brother and nephew, therefore, he has deposed falsely.
39. DW-6 Muhammad Rafique (Councilor Halqa 29, Quetta). He deposed that on 23rd October, 2004, he was present in Ahmed Shah Street near the club in connection with cleaning of the street; at about 1:30/2:00 p.m. some uniform personnel and some in Civil dress came there and entered in the house adjacent to club, came out from club side and asked about two persons, witness showed his ignorance, thereafter; he saw that ANF authorities had brought two boys out of the club, one of them was injured, and both the accused persons present in Court were arrested.
40. In Cross-examination, witness stated that Ahmed Shah Street and Spini road are situated within the Municipal limits and also admitted that municipal numbers have allotted to both the areas. He further stated that alleged house was purchased by Chakar Khan about 1(1/2)/2 years. Witness did not know about the numbers of rooms in the alleged house; he further stated that neither he goes in the house nor in the club. It was denied that Chakar Khan had also remained as Councilor.
41. Witness stated that he know Chakar Khan and his family members for the last about 4/5 years.
42. Witness did not know the ranks of persons, who had conducted the raid. Witness denied the suggestion that early in the morning, people used to go for exercise in the club; voluntarily stated that there is no time limit. It was denied that at the time of raid, none was present in the club; it was also denied that the club is being used as go-down. Witness denied the suggestion that at the time of raid, he was not supervising the cleaning work. It was also denied that the accused persons were arrested from inside the house and also denied that at the time of raid, club was closed. Witness did not know that charas was recovered from the accused persons. He admitted the suggestion that neither he had gone inside the house nor in the club. It was denied that at the time of raid, two persons were not standing out side. It was also denied that he had no conversation with the raiding party. Witness denied that on account of relations, he has deposed falsely.
43. DW-7 Munir Ahmed son of Ghulam Mustafa appeared in witness-box and deposed that on 15th March, 2004, he alongwith his friend Muhammad Iqbal went to Maula Bakhsh (petition writer) in Kacherhri, where he met with Chakar Khan, who told him that he has rented out his house to one Shahab-ud-din and in this behalf he is going to prepare acknowledgment deed. Witness signed acknowledgement deed (Ex. D/1-A) as marginal witness; he identified his signature on the acknowledgment/rent deed.
44. In cross-examination, witness stated that he does not know Shahabud-din and his whereabouts.
45. He further stated that his office hours start from 3:00 p.m. to 10:00 p.m. He also stated that he knows Chakar Khan for the last about 7/8 years. He denied the suggestion that on acknowledgement deed, Chakar Khan had obtained his signature in his house. He also denied the suggestion that Chakar Khan had not told him that he had rented out the house to Shahab-ud-din. He denied that the acknowledgement deed was prepared after 23rd October, 2004 and is a forged document.
46. Witness denied the suggestion that on account of friendship, he has deposed falsely.
47. After completion of trial, the learned Special Judge (CNS) Quetta, on appraisal of evidence, vide judgment dated 15th April, 2005, passed in Case No, 17 of 2004, convicted and sentenced the appellant, in the manner, herein-above mentioned.
48. We have heard Mr. Abdul Karim Khan Yousafzai, learned counsel appearing for pauper appellants, while Mr. Gohar Yaqoob Yousafzai, learned Special Prosecutor appeared on behalf of Anti Narcotics Force.
49. It has been contended by learned counsel for appellants that (i) there is delay in lodging the FIR;
(ii) raid has been conducted in violation of Section 21 of the Control of Narcotic Substances Act, 1997, as independent witnesses were not joined; (iii) the material witnesses have contradicted each other and the prosecution has failed to prove that the alleged recovered material was narcotics; (iv) samples from each of the rod were not taken, resultantly, the prosecution has failed to prove the case beyond shadow of doubt, in view of the alleged recovered articles; (v) the defence witnesses have not been considered at all.
50. On the other-hand, the learned Special Prosecutor stated that huge quantity was recovered from the house and presence of accused in the house has not been denied. The possession of narcotics has been established, and thus; judgment has been properly made.
51. We have heard learned counsel for parties and perused record of the case. PW-1 Captain Rizwan Khursheed has stated that they had the information that one Baloch Khan is involved in business of narcotics and is doing so at his house. It was also informed that one Asmatullah is also accompanying him, and thus; a raiding party was constituted, consisting upon Muhammad Zubair ASI, Constables Shakeel Khan, Nasir Javed, and Muhammad Akram etc. At the pointation of spy/informer, raid was conducted on the house and when entered in the house one person, who attempted to run away, fell down from the stairs and was injured; he was holding a polythene sack, on checking whereof; eight bundles rod shaped charas were recovered, which were weighed at the spot and found to be 9 kilograms. On examination of recovery memo, it appears that seven bundles of rod shaped charas were recovered and the same were weighed and found to be 9 kilograms. Similarly, on the statement made by the said witness, another person by the name of Baloch Khan was also overpowered in the room, and; he was holding a sack wherefrom 8 bundles of rod shaped charas were recovered and on weighment it was found to be 9.5 kilograms. It was positively asserted that from the recovered charas, samples were drawn, which were 4 grams each and were sealed in parcel. The said witness has also produced recovery memos as well as murasla, sent for registration of FIR. Similarly, PW-2 Waseem Riaz, who is constable, has supported the above version of PW-1. However, he had corrected the number of recovered bundles, which were seven in number and weighment of same was found to be 9 kilograms. He also stated that 4 grams of charas were separated for the purpose of analysis. He has also submitted recovery memos and identified the parcel through which alleged charas was recovered. He has also stated about recovery of rod shaped charas, which was weighed and found to be 9.5 kilograms and 4 grams was separated for the purpose of chemical examination. In cross-examination, although statement has been made that the samples were drawn from all the bundles, but attention of Court was drawn to the fact that same were drawn from two bundles of charas, recovered from appellant Asmatullah. Similarly, the said witness had stated that the samples were also drawn from Baloch Khan. However, on examination, it was found that samples were drawn from two bundles. PW-3 is doctor, who had examined the appellant Asmatuallah and has supported/corroborated the version of prosecution that he had sustained injuries while falling down from stairs. PW-4 Riaz Ali, Inspector appeared, who had investigated the case and submitted challan, he had also prepared map.
52. From perusal of above statements, it is abundantly clear that the ANF authorities had conducted raid and had recovered the alleged material. So far as the question that statement of PW-1 contemplates about recovery of eight bundles from appellant Asmatuallh, while in the recovery memo, the same was shown as seven bundles, the same has been corrected by PW-2 that it were seven bundles and produced material was also seven bundles. The said portion cannot be termed as contradiction, while recording the said statement.
53. The question for consideration is that the Court had come to finding on appraisal of said material when the samples from the entire articles were not taken and from the two bundles each, samples were drawn. The report of said articles has been received in affirmative, thus; we believe that the raid was conducted, however, the prosecution has failed to prove that the entire material recovered, was narcotics, but has been able to prove that two of the bundles recovered from the possession of each of the appellant, have been found to be narcotics, weighment of which is more than two kilograms. In view of the judgment of Hon'ble Supreme Court in the case of Muhammad Hashim v. The State (PLD 2004 SC 856), their lordships were of the view that it is bounded duty of the prosecution to have prove the alleged recovered articles to be narcotics in entirety. Relevant observations are reproduced herein-below;-- "3. However, in the given facts and circumstances of the case it would be presumed that sample was taken out from only one rod. As far as remaining rods are_ concerned, in absence of any sample taken out from them, it would not be possible to hold that they were the rods of Charas or otherwise. Therefore, taking into consideration this aspect to the case, we are of the opinion that for such reason, the case of the prosecution has become doubtful, as such, sentence awarded to appellant by the trial Court and maintained by the High Court is not sustainable."
54. In view of the fact that the prosecution has been able to prove that the recovered articles of two bundles, each were found to be narcotics, thus; the appellants are held liable for the same.
55. The contention of learned counsel for appellants, that the provisions of Section 21 of Control of Narcotic-Substances Act, 1997 have not been followed, are not found to be correct. The raiding party and conducted raid under the supervision of PW-1 Captain Rizwan Khursheed, who is Assistant Director, Anti Narcotics Force, and the said raid was conducted by a person, whose designation was above than the Sub Inspector. There is no malice suggested against the raiding party and there appears to be no violation of Section 21 of the Control of Narcotic Substances Act, 1997.
56. So far as, the question that the case of appellants as set-up in defence, was not considered. Suffice to observe that the prosecution has been able to prove on record that the said property belongs to brother of accused Baloch Khan namely Chakar Khan. Similarly, both the appellants are closely interest related to each other being uncle and nephew. The contention that the said house was rented out to one Shahab-ud-din son of Mirza Khan, appears to be after thought. Moreover, the said Shahab-ud-din was not produced as defence witness to support the contention of defence. It is not possible for the prosecution to foist such a quantity of narcotics and recovery thereof in the manner, in which, recovery has taken place. The defence led by the appellants is also not plausible, as it has been admitted that' the appellants were present in the exercise room, meant by them for the people, and thereafter; raiding party had come. The statements of defence witnesses, thus; in this regard are not worthy of reliance that the recovery of said narcotics was not effected from the possession of appellants. The factum of falling down of appellant Asmatullah and sustaining injuries has been corroborated by the medical evidence, and thus; recovery has been established.
57. Similarly, the recovery of narcotics from the possession of appellant Baloch Khan has also been established by the statement of prosecution witnesses, which have not been shaken. The Investigating Officer never suggested the names of, defence witnesses, who were claimed to be present at the time of raid.
58. Thus, in the circumstances of the case, we hold that appellants are responsible for the recovery of two bundles of narcotics each, and thus; reduce the sentence of RI for seven years each to that of RI for five years each and fine of Rs, 30,000/- each is reduced to that of Rs, 25,000/- each, in default of payment of fine to further undergo SI for four months each; benefit of Section 382-B, Cr.P.C. has already been extended by the trial Court.
59. With the above modification, in the quantum of sentence, we see no force in this appeal, which is accordingly, dismissed.