' ALI NAWAZ CHOWHAN, J.--Khalid Hussain appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 by the learned Judge Special Courts CNS, Lahore vide judgment dated 3-1-2004 in case F.I.R. No.21 dated 16-5-2002 registered at Police Station, ANF, Lahore and sentenced to death with a fine of Rs.6,00,000 or in lieu thereof to undergo S.I. For one year.
2. Briefly the prosecution case is that Rana Ibad Ali, Assistant Director ANF on a spy information constituted a raiding party consisting of Muhammad Rafiq Amer, Assistant Director and other officials of the ANF who conducted raid on Khalid Pansar Store situated in Pak Bazar Inside Girjakhi Gate, Gujranwala and in the presence of Khalid Hussain accused/appellant search of 'the store was conducted. From the drawer of the counter opium weighing 70 grams and from the rear part of the store a "Thela" containing crushed poppy straw weighing 24 kilograms were recovered. On interrogation accused Khalid Hussain made the disclosure that in Mohallah Faisalabad, Gujranwala and at Prince Road, he had stored a large number of bags of poppy straw in his rented stores. The accused then led to the recovery of 44 "Toras" of crushed poppy straw out of which 30 'Toras' weighing 45 kgs. Each and 14 'Toras' weighing 24 kgs. Each from a store at Mohallah Faisalabad after opening the lock of the store. The accused then led to the recovery of 40 "Thelas" containing crushed poppy straw each weighing 39 kgs.
3. The prosecution to prove its case examined as many as four witnesses. Muhammad Sarwar A.S.- I. P.W.1 drafted formal F.I.R. Exh.P.A on the basis of complaint sent by Rana Ibad Ali, Assistant Director, Police Station ANF, Lahore. He also deposed about the safe custody of sealed parcels containing poppy straw and opium in the Malkhana of the police station. Rashid Mehmood constable P.W.2 transmitted the sealed parcels said to contain poppy straw and opium to the office of Chemical Examiner, Lahore. Muhammad Sehraz, A.S.-I. P.W.3 is the witness of recovery. Rana Ibad Ali, Assistant Director, ANF, Lahore P.W.5 is the complainant and reiterated the contents of the F.I.R. He also investigated the case.
4. The accused was examined under section 342, Cr.P.C. And took the following plea:-- "that he runs a store and Dawakhana in the name, 'Khalid Pansaar Store' which is situated inside Girjakhi Gate, Gujranwala. He has been working as Hakeem and running 'Pansaar Store' since 1984.
There is an Anjuman known as Hakook-e-Dukandaran, Pak Bazar, Gujranwala. On 16-5-2002 he was present in his house and about to go for his medical check up to Islamabad city. He had to go for the check-up of Hepatitis-C and for his kidney treatment. At about 12 noon, the outer bell of the house sounded. The maid of the house opened the door of the house. 15/20 persons forcibly entered in the house. They without introducing themselves started search of the house, Almirahs, brief cases. They thoroughly checked the house. He and his son were taken into custody. Name of his son is Abdullah (D.W.1). They had not shown him warrant for the search of the house. Nothing was recovered from his house. They stayed in his house for one and half hour, meanwhile, Mohalledars also came over there. They inquired from them as to what was the matter, but they did not reply them. He was made to sit in a vehicle and was taken to his shop in Pak Bazar. Over there already the employees of ANF were present. They withdrew 70 grams of opium from the counter of the shop and told him that it was recovered from there. Meanwhile, many people of the Bazar and other residents of the city assembled there. The persons, who came along with him, they entered into the shop. They searched the shop extensively but they did not recover anything objectionable from there. People protested against the action of the ANF. At that time, the employees of Police Station, Kotwali were also passing from there being on mobile duty. He is a religious person and a gentle businessman. He has performed Haj. Fake recovery has been foisted upon him by the ANF and he curses upon narcotic selling. He has business terms with one Khadim Hussain. He had given to Khadim Hussain in the month of November/December, 2001 Rs.4,00,000 and he had entered into a deal with him of white Zeera at the rate of Rs.2,000 per Mand. The deal was with regard to 200 bags. Suddenly, the rate of the Zeera was raised in the market. The rate of the Zeera reached up to seven/seven and half thousand per Mand. The said Khadim Hussain did not honour the deal and did not supply him Zeera according to the deal. He contacted him but he was putting lame excuses. Once, he had a verbal exchange of hot words with him. He held threats to him and his son Abdullah of murder. In this regard he went to his house with some respectables at Naumania Road. They visited him 3/4 times. Khadim Hussain asked them to wait for some time.
He on the advice of the respectables started waiting for the promise to be fulfilled by Khadim Hussain but meanwhile, he has been falsely entangled in this case at the instance of Khadim Hussin. When, he was arrested, his son Abdullah and persons namely, Ashiq, Sh. Ilyas, Muhammad Sadiq were also arrested from his shop. Stated again that he and his son were arrested from his house and the remaining said persons were arrested by the ANF from his shop. They were then taken to Lahore. He and his son were confined in one room. The remaining persons were made to sit in another room. Later on, he came to know that they were released. His son was also released on the 3rd day and he was booked in this case. He tendered Exh.DC/1-14, the certificates of his registered Islamic Tib and the documents of his medical treatment and affidavits Exh. DD /1-15 . "
' He produced Muhammad Abdullah D.W.1 in support of his plea. The appellant also made statement on oath under section 340(2), Cr.P.C. To prove his innocence.
5. Assailing the conviction and sentence of the appellant the learned counsel appearing on his behalf has, inter alia, submitted the following arguments:--
(i) That this was a case where the informant was a spy and consequently raiding a premises without following the law and without getting a warrant was violative of the principles laid down in section 21 of the Control of Narcotic Substances Act, 1997 and placed reliance on the following case-law:--
(1) State through A.-G. Sindh Karachi v. Hemjoo (2003 SCMR 881).
(2) Nasrullah v. The State (PLD 2001 Peshawar 152).
(3) Taj Wali and 6 others v. The State (PLD 2005 Karachi 128).
(ii) His next argument was that the alleged recovery was effected from two premises, one was the shop owned by the appellant from where 70 grams opium is said to have been recovered along with 24 kilograms of poppy straw while rest of the poppy straw weighing about 3200 kilograms was recovered from the two different godowns situated in different parts of the city but the prosecution has failed to bring on record any evidence showing as to who was owner in possession of the said premises. He places reliance on Raees Khan v. The State (2005 PCr.LJ 76) and Khan Muhammad v.
The State (PLD 2004 Karachi 681).
(iii) That the case property has also been destroyed without judicial permission and this was violation of section 516-A of the Cr.P.C.
(iv) Learned counsel next argued that even if the prosecution case is said to have been established the sentence in this case was harsh because after all the recovery pertains to poppy straw which was being used for medicinal purposes and as a very small quantity of narcotics is recoverable from the bud of the poppy straw, the recovery only made a technical offence rather than a real offence.
(v) That it has also come on record that the appellant was a Hakeem and, therefore, animus which can be attributed to him will be that he was to use the poppy straw for medicinal purposes and not for narcotics purposes and thus he was actuated with any menswear.
(vi) That he was a first offender.
6. The learned counsel for the department was of the view that no prejudice was caused to the appellant against the destruction of the case property because a certificate was in fact placed on the file and that it was never the case of the appellant that the case property was not poppy straw.
Learned counsel further stated that the violation of section 21 of the Control of Narcotic Substances Act, 1997 would at the most be an irregularity and nothing beyond that.
7. The recovery of such a huge quantity of narcotics removes all doubts with respect to any fake recovery. Neither any cogent ground has been given to establish the false implication of the appellant. The only defence witness the appellant has been able to produce was his son and not anyone from the locality to deny the factum of the recovery.
8. With respect to a case where search, seizure and arrest are without warrant, a protection is provided under section 21 of the C.N.S.A., 1997, provided there were fears that the accused may escape or conceal the consignment. In this particular case, it was difficult for the appellant to have concealed such huge quantity of poppy straw. But, anyway, the non-conformity with the procedure as laid under section 21 and under the circumstances and facts of this case would amount to an irregularity which is not fatal to the case of the prosecution.
9 The witnesses are officials. There is nothing to suggest any malice on their part in involving the appellant nor the appellant was able to impeach their credibility and after hearing both sides and going through the record we feel that although there were some irregularities in this case but these were not fatal to the case of the prosecution. Thus the order of conviction does not appear to be infirm.
10. The Control of Narcotic Substances Act, 1997, came about on 11th July, 1997, with a purpose of consolidating and amending the laws relating to the narcotic drugs etc. This law also had another additional aim of regulating the treatment and rehabilitation of narcotic addicts and matters connected therewith. With respect to the latter purpose we find a failure on the part of the Government and unfortunately the addicts are increasing and so is the crime.
11. The previous laws which dealt with narcotics were the (i) Opium Act, 1879; (ii) Dangerous Drug Act, 1930; and now (iii) Control of Narcotic Substances Act, 1997, ultimately. Even with respect to the drafting of this law, we find that the ground realities of our society and culture and the socio- economic conditions and age old habits and practices were not at all kept in view.
12. A harsh law was enacted for purposes of deterring the crime. But over the years since its enactment, it has blown no winds of change, rather the situation is in a further state of recession.
13. The Control of Narcotic Substances Act, 1997, played with the definitions of opium poppy:-- "The Control of Narcotic Substances Act, 1997 defines "opium poppy" as follows:-- "Opium poppy means, the plant of the species Papaver Somniferum L."
' Poppy Straw as follow:-- "Poppy straw means, all the parts except the seed of the opium poppy after mowing."
14. A perusal of earlier definition of poppy straw as given in the Opium Act of 1878, shows the following additional words; "from which narcotic can be extracted". Whereas, in the definition of opium as given in section 2(t)(1) of the poppy straw, these words: "from which narcotic can be extracted" have been excluded. It is perhaps for this reason that a separate definition of poppy straw and opium poppy had to be given, therefore, with the result that a departure was made from the definition as given by the age tested Opium Act, 1878, without giving any reasons.
15. Under section 9 of the Act, all Narcotic Drugs or psychotropic substances have been placed in a row for the purpose of punishment on the basis of weight.
16. The author of this judgment recalls his earlier views on the subject which were referred to during the arguments of this case and which have been expressed in detail in the Criminal Miscellaneous No.1673-B of 2004 etc. An excerpt from the same is re-produced below:-- "28. Another dimension of the case is whether persons in possession of pure narcotic drugs, psychotropic substances and those in possession of possession of poppy straw having only a trace of the substance can be treated alike grouped or classified together for punishment to be determined through weightage of the substance in terms of section 9 of the C.N.S.A 1997 and in view of Article 25 of the Constitution.
29. What is a reasonable classification?
17. We are, anyway, bound by the case of I.A. Sherwani v decision of the Full Bench in the Government of Pakistan (1991 aforementione case and have to SCMR 1041). But when there is an unreasonable classification and people are grouped together in an unreasonable way for purposes of punishment. This infringes their right to equality before law. How can an accused in a case of an accepted heinous crime be equated with a person of a much lesser crime only because of an alteration in the definition of the crime and which definition may be opposed to the accepted classical definition. I may further highlight my question saying that can a pickpocket and a dacoit/robber be grouped together for purposes of akin sentence?
30. Equality, one of the most fundamental concepts of morality, law, and political theory, has been written into every bill and declaration of human rights, has been the rallying cry of revolution and the focus of social change, and has been the demand of the oppressed and the under- privileged.
It is generally considered to be one of the principal foundation stones of liberalism and liberty, for as the rule of law is fundamental to democracy justice is the soul of law and equality is the heart of justice. The denial of equality has often been accompanied by injustices ranging from discrimination to severe persecution as we also see presently in these cases." respectfully follow the majority view.
18. Anyway, one more aspect of the case is that the poppy straw after the extraction of opium juice from it, was purchased by the Hakeems and village apothecaries/Pansaries. People used it in Ayurvedic medicines since remote antiquity not only in Pakistan but elsewhere in the neighbouring countries where it is still being used.
19. The abrupt change in law without creating any proper amendment in law, has already caused a turmoil and we find many Hakeems and apothecaries incarcerated confronting maximum sentence under the provisions of section 9 of the C.N.S.A., 1997, which law according to our humble view calls for a re-visit and reconsideration and we recommend that our views be placed before the Honourable Law Commission of Pakistan in the public interest.
20. All what has been stated above, helps us in concluding that while following the law we discover that there are thus extenuating circumstances in this case calling for reduction in the sentence which we reduce from death to life imprisonment. We also reduce the quantum of fine to Rs.50,000 or in lieu thereof he is to undergo S.I. For 6 months. The appellant shall be given benefit of section 382-B of the Cr.P.C. His appeal is disposed of accordingly.
Sentence reduced.