' MIAN MUHAMMAD JEHANGIER, J.---By this judgment Criminal Appeal No,1077 of 1999 and Criminal Appeal No,26-J of 2000 are being disposed of together which have emerged from the judgment passed by Ch. Sajid Mahmood, learned Additional Sessions Judge/Judge Special Court, Okara dated 3-11-1999 whereby the learned Judge in a case bearing F.I.R. No,415 of 1997, dated 4-11-1997 registered under section 9(c), of the Control of Narcotic Substances Act, 1997, at Police Station Okara, after conclusion of the trial convicted and sentenced the appellants as follows:-- ' Under section 9(c), Faiz Ahmad appellant was awarded death sentence and had to pay Rs,5,00,000 as fine and in case of default in the payment of fine he had to undergo R.I. For five years.
' Under section 9(c), Muhammad Ramzan was sentenced to death and was also ordered to pay a fine of Rs,5,00,000 and in default thereof he had to undergo R.I. For five years.
' Briefly the facts of the prosecution case as disclosed by Muhammad Atique, Inspector/S.H.O. Of Police Station 'A' Division Okara in his complaint (Exh.P.A.) prepared in the area of Rahim Karim Town at about 3-30 p.m. On 4-11-1997 are that while conducting the investigation of another case bearing F.I.R. No,409, dated 1-11-1997 registered under Articles 3/4 of Prohibition (Enforcement of Hadd) Order IV of 1979 read with section 9(c), of C.N.S.A. Of 1997, he received information about presence of the heavy quantity of the narcotics in the house of Faiz Ahmad son of Sanaullah, Caste Arain resident 'of Rahim Karim Town, Okara. He obtained the search warrant and constituted a raiding party consisting of Javaid Iqbal A.S.-I., and other police employees and at about 2-30 p.m.
On the above date arrived in Rahim Karim Town. Ghulam Sarwar son of Haji Muhammad Bashir Caste Arain, resident of Farid Abad was joined in the raiding party in the way. When raid was conducted at the house of Faiz Ahmed, Faiz Ahmad and Muhammad Ramzan originally resident of Bahawalpur Guloon, Police Station Noshera were apprehended. They disclosed about the availability of the narcotics placed in an iron box and buried in a vacant plot in front of the house under the manger of cattle. They brought out the iron box.
' First of all Faiz Ahmad picked one bag of plastic of blue colour containing the narcotics, i.e, heroin 5 Kgs, in weight, opium 8 Kgs. In weight and Charas 30 Kgs, in weight were recovered from the bag.
Heroin 20 grams in two separate parcels, opium 20 grains out of four packets each and Charas 200 grams from each were separated and made into sealed parcels.
' When bag of plastic blue colour was lifted by Muhammad Ramzan Heroin 5 Kgs. In weight, opium 12 Kgs. And Charas 10 Kgs. In weight were recovered and a little quantities were separated and made into sealed parcels for analysis.
3. Complaint Exh.P.A. Was sent to the Police Station through Muhammad Ishaq F.C. For registration of the case.
4. Atique Ahmad Sindhu, Inspector/S.H.O. Of Police Station 'A' Division Okara (P.W.4) conducted the investigation in this case. He prepared the rough sketch Exh.P.F., recorded the statements of the prosecution witnesses, brought the accused persons and the case property to the police station, handed over the same to the Moharrar of the Police Station and after completion of necessary investigation he submitted the challan in Court for trial of the accused persons.
5. When the trial commenced the prosecution produced four witnesses to prove its case based upon the recoveries of the narcotics and the formal witnesses.
' Nasir Hussain, F.C. (P. W.1) stated that he deposited the 'sealed parcels of the Heroin, opium and Charas in the office of Chemical Examiner on 8-11-1997.
' Shamshad Ali, H.C. (P.W.2) stated that he prepared formal F.I.R. Exh.P.A./1, kept the sealed parcels in his custody received by him on 4-11-1997 and handed over the same to Nasir Hussain F.C. On 4-11- 1997 for onward transmission to the office of Chemical. Examiner.
' Javaid Iqbal, A.S.-I., (P.W.3) being member of the raiding party stated about the conduct of the raid at the house of Faiz Ahn.Ad, recoveries of the narcotics at the instance of Faiz Ahmad and Muhammad Ramzan as narrated in the F.I.R. Exh.P.A./1 and attesting of the recovery memos. Exh.P.B.
And Exh.P.C. By him and also by Ghulam Sarwar P.W. (not produced).
' Atique Sindhu, Inspector (P.W.4), repeated almost the contents of Exh.P.A. On which formal F.I.R.
Exh.P.A./1 was drafted at the police station and the investigation conducted by him in this case.
' Ghulam Sarwar (P.W.) was given up as being unnecessary. The Reports of Chemical Examiner Exh.P.G., Exh.P.H., Exh.P.J., Exh.P.K., Exh.P.I. And Exh.P.M. On different varieties allegedly recovered from Faiz Ahmad and Muhammad Ramzan appellants were tendered in evidence and that the prosecution evidence was closed.
6. Both the appellants denied the allegations as levelled by the prosecution in their statements under section 342, Cr.P.C. They professed about their innocence and when Faiz Ahmad appellants was questioned as to why this case was registered against him he submitted his reply which was as under:-- "All the recovered material might be the belonging of Muhammad Siddique or some other person and I have nothing with the said recovery. The place of recovery was neither in my ownership nor in my possession and was an open plot of Muhammad Siddique. I have no concern with the place of recovery of its belonging i.e,, Khurli and cattle. In fact my house was raided and Investigating Officer had taken my T.V. And other household articles into illegal possession which till today were never returned to me. Firstly in order to usurp the said articles and secondly to save the actual culprit I have been implicated falsely to show the fake efficiency of the police. Nothing was recovered from me and it is a false case.
' All the P.Ws. Are police officials. One Ghulam Sarwar was cited as recovery witness but was never produced by, the prosecution but he was not ready to support the false version of the prosecution.
The Police Officials being interested and under the influence of Investigating Officer had deposed against me."
' Muhammad Ramzan appellant also submitted the same reply.
7. Faiz Ahmad only got his statement recorded under section 340(2), Cr.P.C. He stated that about two years back at about 10/11 p.m. He was arrested from his house, and when his house was searched in his presence one T.V. And household articles were taken into possession by the police but no contraband was recovered in his presence and that the household articles and the T.V. Set were never returned to him. He further stated that facts of recoveries shown in this case are totally false and after two days of his (Faiz Ahmad) arrest this false case was registered. He further stated that he is innocent and he does not deal in drug trafficking, gold ornaments, clothes and cash of Rs,20,000 were taken away by the police and that no narcotic was recovered from his house. He further stated that he does not hold any previous record in any narcotic case, and the recovery shown against him is false and that he is totally innocent in this case.
' Muhammad Tariq son of Muhammad Tufail, Caste Rajput resident of Rahim Karim Town, Okara (P.W.1) stated in line with the statement made by Faiz Ahmad appellant.
8. After hearing the learned counsel for the parties, the learned Trial Court found that the prosecution has proved its case beyond any reasonable doubt, therefore, both the appellants were convicted and sentenced as mentioned above.
9: We have heard the learned counsel for the parties and have gone through the relevant record placed before us.
10. Learned counsel for the appellants argued that in order to prove its case the prosecution produced only the police employees and that no independent witnesses were produced even Ghulam Sarwar (P.W.) was given up by the prosecution, therefore, although, now, the provisions of section 103, Cr.P.C. Have been made inapplicable by section 25 of the Control of Narcotic Substances Act, 1997, yet to convince that the raid was actually conducted; the prosecution should have produced the witnesses of the locality; that there are material discrepancies in the statements of the prosecution witnesses; that no search warrant was obtained from the Special Magistrate and that in fact the prosecution had failed to prove its case and being so Faiz Ahmad and Muhammad Ramzan appellants are entitled for acquittal while giving them the benefit of doubt.
11. On the other hand the learned State Counsel opposed these arguments and submitted that the police witnesses are as good witnesses as other; that the statements of the prosecution witnesses were consistent on all material points and their statements found full corroboration from the reports of Experts, therefore, the prosecution had proved its case beyond any reasonable doubt and in these circumstances the learned Trial Court rightly convicted and sentenced the appellants.
12. While examining the legal aspects of entry and search of a building, place and premises in case of narcotics we see that it is provided in section 20 of the Control of Narcotics Substances Act, 1997 that a Special Court may issue a warrant for the arrest of any person or for search of any premises by day or by night when there is a sound information that the narcotics have been kept or concealed. While section 20 of the Act ibid empowers an officer not below the rank of S.-I. Of Police to enter and search the premises without the warrant of arrest or search cannot be made without affording an opportunity to escape or conceal the narcotics and in the latter case after recording the reasons of the raid in writing shall send a copy thereof to his senior officer. Meaning thereby, in an urgent case the police officer of the rank of Sub-Inspector (sic) of the conditions as provided in the abovementioned section.
13. Now here in the instant case the police officer (P.W.4) on receipt of information moved the application to Illaqa Executive Magistrate and obtained the search warrant. The raid was conducted on 4-11-1997. The search warrant was obtained from the Illaqa Executive Magistrate, it happened perhaps for the reasons that on the above date Special Courts as required by section 46 of C.N.S.A., 1997 presided over the Judicial Magistrates of the First Class were not constituted as hardly a few months earlier i.e, on 7th July, 1997 the Act as mentioned above had come into force, therefore, the obtaining of the search warrant from the Illaqa Executive Magistrate was an effort in good faith and to have process of raid in accordance with law, which also convinces that the raid was conducted on a house and this fact at least to the extent of the conduct of the raid was admitted by Muhammad Tariq (D.W.1) and by Faiz Ahmad appellant in his statement on oath.
14. It is correct that the entire prosecution case rests on the testimony of the police employees and by examining their statements we see that there are some discrepancies in their statements for example Nasir Hussain F.G. (P.W.1) stated to have received the parcels in the morning time while Jamshed Ali (P.W.2) stated to have handed over the parcels at night time, Javaid Iqbal (P.W.3) stated that proceedings were completed by Atique Sindhu (P.W.4) while the said Atique Sindhu stated otherwise, but all these discrepancies, minor in nature, or some delay in dispatch of the parcels have no adverse impact on the prosecution case because the statements of the above mentioned witnesses are quite consistent on all material points and their statements find full corroboration, whereas the defence version introduced by the appellants in their statements and the witness produced by the (sic) D.W.1 are contradictory in nature. Therefore, we see that the learned Trial Court had correctly observed that the prosecution had proved its case.
15. Now the point for examination before us is as to whether there is any circumstances to take lenient view in case of sentence awarded to the appellants. We see that both the appellants are first offenders, therefore, there is a mitigating circumstance to take a lenient view.
16. In view of the discussion above, the conviction passed by the learned Trial Court is maintained, however, the death sentence in case of both the appellants is reduced to imprisonment for life and the fine is also reduced to Rs,2,00,000 each and in default to further undergo one year. The appeals are disposed of accordingly.