' JUSTICE SYED TAHIR ALI SHAH (MEMBER).--- Instant petition through which leave to appeal has been sought is directed against the judgment dated 8-3-2007, returned by the Chief Court Northern Areas, whereby the order passed by the Special Judge Narcotics (Sessions Judge) Gilgit dated 14-6-2006, was maintained and reduction of sentence from seven years to six years rigorous imprisonment on the ground of old-age of the appellant/convict.
2. Brief facts of the case, unveiled, as that one Amir Humza, S.I.P. Incharge Police Station A.N.F. Gilgit, received spy information that the appellant with huge quantity of opium is present in the house of one Muhammad Jalal as a guest in Syedabad Gilgit. The spy further informed that if prompt raid is carried out huge quantity of opium can be recovered from the convict/appellant. On this information the Investigating Officer along with Kaka Jan, Sadaqat Ali, Liaqat Ali and Babar Khan proceeded to the spot on Vehicle No,IX-5609 raided the house of Muhammad Jalal and apprehended the appellant from the said house. The accused, as per F.I.R. Confessed his guilt and led the police to recovery of opium weighing 1100 grams, grounded besides the inner boundary wall of the garden of the house of host. Opium consisting of one big plate, 5 smaller plates in one shopping bag and many small pieces in another plastic shopper recovered from the place. The Investigating Officer Weighed the opium, separated a quantity of 10 grams as sample for chemical examination, prepared two different parcels and sealed them. He also prepared recovery memo., and thereafter registered F.I.R. No,8 of 2004 under section 9(c) of Control of Narcotic Substances Act, 1997, and arrested the appellant. He also prepared the site plan, recorded statements of P.Ws.
And left for police station where he handed over the recovered opium of Malkhana.
3. The appellant, on completion of investigation was challaned to the Court for trial. The charge was accordingly framed against the appellant to which he pleaded not guilty and claimed trial.
' The prosecution in order to prove the charge against the appellant produce three witnesses in all P.W.1, namely Muzaffar-ud-Din A.S.-I. And P.W.2 Javed Iqbal H.C. Employees of A.N.F. Are witnesses to the recovery memo.
' P.W.3 Amir Humza, is the F.I.R. Lodger/the Investigating Officer who submitted the challan after his satisfaction of the investigation.
4. The appellant on the conclusion of the examination of P.Ws. Was examined under section 342, Cr.P.C. He in his statement denied the charge and pleaded that the opium was actually recovered from the house of Muhammad Jalal, his host but police malafidely implicated him in the case. He did not opt to appear as his own witness in terms of section 340(2), Cr.P.C. And also led no defence evidence.
5. The trial Judge after hearing the parties and appraising the evidence convicted and sentenced the appellant to undergo seven years' rigorous imprisonment with a fine of Rupees two lac, extending the benefits of section 382-B, Cr.P.C.
6. Against the record of the conviction and sentence the appellants filed an appeal before the Chief Court Northern Areas, Gilgit. The State also filed an appeal for enhancement of sentence awarded by the trial Court. The two appeals were taken together and a single judgment appeared in black and white. The record reveals that the Chief Court Northern Areas, has disposed of the appeals in a very fanciful manner foreign to the settled judicial principles. The learned Court in its finding has observed:--- "without going deep into the merits of the case the conviction is maintained. However, considering the age of the appellant the sentence is reduced from seven years to six years rigorous imprisonment with benefits of section 382-B, Cr.P.C.
7. The judgment further reveals that reasons have not been furnished to maintain the conviction order of the trial Court in spite the fact that the appellant in his memo. Of appeal has agitated very material and convincing points for adjudication. The lower Court, as is evident did not bother to discuss and to form the judicial opinion on the points. The findings therefore, cannot be called a judgment in the legal terminology. It is also surprising to note that the learned Court discarded going deep into the merits of the case. It reflects that probably the learned Court has taken the criminal appeal as a bail application where deep appreciation of the case has not been encouraged by the superior Court.
8. We have heard the learned counsel for the appellant as well as the counsel for ANF and have gone thoroughly, through the record with their assistance.
' The learned counsel for appellant raised the following points and contended that:--
(i) despite spy information warrant under section 20 of the Control of Narcotic Substances Act, 1997, was not obtained from the Court concerned before the raid, which accordingly to him, vitiate the entire proceedings.
(ii) witnesses independent, though available at scene of occurrence were not associated and
(iii) the recovery of opium and its quantity is highly doubtful which renders the offence out of the domain of section 9(c) of the Control of Narcotic Substances Act, 1997.
9. On the other hand controverting the point so raised by the learned counsel the special counsel for A.N.F. Contended that huge quantity of Narcotics was recovered from the possession (control) of the accused and that also on his pointation. He further contended that the prosecution has proved the case beyond any shadow of doubt. His further argument was that warrant for raid is not necessary as sections 20, 21 and 22 of the Control of Narcotic Substances Act, 1997 are directory and not mandatory.
10. We have considered the contention of the learned counsel of the appellant within the parameters of relevant provisions of narcotics law and found that points Nos.1 and 2 not sustainable in view because sections 20, 21 and 22 of Control of Narcotic Substances Act 1997 are directory and its non-compliance would not be a ground for holding the trial/conviction bad in the eye of law. It would merely be an irregularity curable wider section 537, Cr.P.C. We have noticed that in section 20 of the Act the word "may" has been used with reference to obtaining search warrant to effect search of a house, place, premises etc. Since law has not prescribed consequences to conduct search without obtaining search warrant from the Court concerned this alone would not be sufficient to vitiate the trial.
11. As for the association of independent witnesses of the locality during the investigation, no doubt private citizens were available at the scene of weighment and seal. The contention of the learned counsel would be relevant with reference to the general law contained in section 103, Cr.P.C. But could not under the special law (Narcotics law) where section 25 of the Control of Narcotic Substances Act 1997, has expressly excluded the application of section 103, Cr.P.C. To the cases registered under Control of Narcotic Substances Act, 1997. The superior courts have repeatedly held that police officials being public servants are good witnesses as any other private one unless it is proved that they had personal grudge against the culprits.
12. As to the dubious recovery and quantity of recovered opium we found substance in the arguments of the learned counsel for the appellant. In the F.I.R. It has been recorded that a specimen was collected from every piece of opium recovered weighing ten grams in total. P.W.1 stated that S.H.0./Investigating Officer separated ten grams from all the pieces for sending it to the Chemical Examiner. Further stated that the opium recovered from the appellant consisted of one big piece and five numbers of smaller pieces besides many very small, pieces. Again stated that I do not know the total number of pieces as the very small pieces were too many. P.W.2, another recovery witness has ddposed that there was one big piece, five small pieces and many very small pieces in the bag. The very small pieces were in a shopper placed in the big bag. I cannot tell the exact figure of pieces as the very small pieces were too many. The star-witness, P.W.3, the Investigation Officer and the F.I.R. Lodger does not specify the numbers of opium plates and pieces in his examination-in-chief, however, in cross-examination he has deposed that opium was comprised of "5" big pieces in one shopper while few small pieces in another shopper. The witness namely Kaka Jan, who has reportedly prepared the recovery memo. Was not examined( It is also interesting to note that no question was put to the accused during examination under section 342, Cr.P.C. Regarding the expert opinion about the opium.
13. Severity of punishment under section 9(c) of Control of Narcotic Substances Act, 1997 has direct nexus with the quantity of Narcotics F recovered from the accused. The prosecutions duty is therefore, twofold; ' Firstly, that it is to be established guilt of an accused for having in his possession or under control the narcotics and; ' Secondly, to establish through reliable evidence the particular quantity said to have been recovered.
14. In the second case if no evidence is ,adduced to prove the exact quantity recovered from an accused the Court would be unable to award sentence prescribed by clause (c) of section 9 of Control of Narcotic Substances Act, 1997. Keeping in view the glaring inconsistencies in the statements of P.Ws.1, 2 and 3 the exact quantity of recovered opium has become highly doubtful and the prosecution has not been able to prove beyond doubt the exact quantity of contraband narcotics from the accused.
15. Under the circumstances and the discussion made above, the petition for leave to appeal is allowed and converted into appeal and accepted. The conviction awarded is maintained but is reduced to the extent of period already undergone. The fine imposed is also remitted. These are the reasons for the short order, dated 18-6-2007.