' MUHAMMAD MUZAMMAL KHAN, J.---This appeal has been directed against the judgment dated 13- 9-2004, whereby learned Special Judge Anti- Narcotic, Ferozewala, convicted the appellant under- section 9(e) Control of Narcotic Substances Act, 1997 and sentenced him to life imprisonment with a fine of Rs.100,000 or in default of its payment to further undergo S.I. For 2 years. Appellant was, however, awarded benefit of section 382-B, Cr.P.C.
2. Charge against the appellant, as per complaint (Exh.PB) of Muhammad Riaz S.-I. (P.W.4) was that on 8-11-2003 he along with other police officials, while present in main bazaar Muridke, on receipt of spy information that Izhar Mubarik (appellant) had brought four bags of "Poast' which were lying in front of his shop in the bazaar, conducted a raid, apprehended the accused, recovered four bags of "Poast" consisting 15 K.G. Each, separated one K.G. From each for chemical analysis, sealed them separately, took the same into possession vide memo. (Exh.PA), prepared the site-plan of the place of recovery (Exh.PC) and transmitted the complaint (Exh.PB) to the police station on the basis of which F.I.R. Exh.PB/1) was registered.
3. The learned trial Judge on receipt of challan framed charge against the appellant under section 9(b) Control of Narcotic Substances Act, 1997, to which he pleaded not guilty and claimed trial.
4. Prosecution in order to prove guilt of the appellant produced as many as four witnesses and tendered in evidence report of the Chemical Examiner as Exh.PD, while giving up Muhammad Akram and Rafaqat Ali P.Ws., being unnecessary. P.W.1 Muhammad Sarwar C/873 on 11-11-2003 was handed over a sealed parcel by the Moharrir, for which he obtained docket from Excise Office, Sheikhupura but since there left no time, he deposited the parcel with Moharrir intact and on 12-11- 2003 he was again handed over the said parcel which he transmitted to the office of Chemical Examiner, Lahore the same day, intact. P.W.2 Muhammad Asghar A.S.-I. Was a member of the raiding party who also attested the recovery memo. Exh.PA. P.W.3 Mahmood Ahmed Moharrir HC/555 on 8-11-2003 recorded formal F.I.R. (Exh.PB/1) on the basis of complaint (Exh.PB), received four sealed sample parcels and four bags containing "Poast" from Muhammad Riaz S.-I., kept the same in safe custody of. Malkhana and on 12-11-2003 got transmitted the sample parcels to the office of Chemical Examiner through Muhammad Sarwar constable. P.W.4 Muhammad Riaz S.-I.
Was the complainant as well as Investigating Officer in this case, who apprehended the appellant, recovered 4 bags of "Poast" vide memo. Exh.PA, drafted the complaint Exh.PB, prepared the site- plan of the place of recovery Exh.PC, recorded statements of the witnesses under section 161, Cr.P.C.
And in his investigation 'found the appellant guilty.
5. Appellant was examined under section 342, Cr.P.C. Wherein he claimed to be innocent by asserting that he was falsely roped in the case by the Investigating Officer at the instance of one Sh, Muhammad Ayub, who was inimical to him and there was civil litigation. He did not opt to record his statement under section 340(2), Cr.P.C. He however, produced copies of Writ Petition No.3857 of 2004, contempt petition and civil suit as Exh.DA, Exh.DB and Exh.DC in his defence.
6. Learned counsel for the appellant contended that no recovery was effected from the active custody of the appellant and the one allegedly made from outside the shop of the appellant, when he had already closed the shop, could not have been resulted in conviction awarded by the trial Court. It was further submitted that the alleged recovered "Poast" is not contraband, as the same is not covered by definition clause of the Control of Narcotic Substances Act, 1997. He further emphasized that as a matter of fact, "Tumma" was recovered from 'the appellant which is not narcotic material. Reliance in this behalf was placed on the statement of. P.W.4/Investigating Officer and an attempt was made to make distinction between "tumma", "Poast" and "poppy straw" by making reference to section 2(w) of the Act. ,.(ibid). Learned counsel for the appellant further argued that the case property was not exhibited or produced before the trial Court, thus appellant was incorrectly convicted through the impugnethjudgment. According to him, there were material contradictions between the statements of P.Ws. Negatively reflecting on the prosecution case hence it was not safe to rely on their depositions but the learned trial Judge illegally made reliance there over. Learned counsel for the appellant also prayed reduction in sentence on the ground that appellant is a first offender and is not 'involved in any other alike case.
7. Rana Bakhtiar Ali, Deputy Prosecutor General opposed the submissions of the learned Counsel for the appellant, supported the impugned judgment and urged that Investigation Officer (P.W.4) was not an expert witness, thus his defining the recovered "Poast" as "tumma" had no material effect on the case because "Poast" was recovered and sent to Chemical Examiner who has given a positive report. He further referred to the definitions of opium in section 2(t) of the Act (ibid) to contend that every part-of the poppy plant is covered by definition of opium except its seeds. It was emphasized that head of the poppy plant in form of a bulb is the main source of getting opium and the same is called "Poast" which cannot be graded as "tumma" on the basis of any standard governing the cases like the one in hand. It was also submitted on behalf of prosecution that appellant did not make any suggestion to any of the prosecution witnesses, especially P.W.4 that the recovered contraband was not "Poast"and this lapse leads to conclude that appellant did not deny the nature of narcotic material from him. As per his submissions prosecution has proved its case to the hilt leaving no shadow of doubt of false implication or fake recovery, as all the witnesses had been consistent about the commission of offence by the appellant and their statements remained un-impeached.
8. We have heard the learned counsel for the parties and have examined the record of the trial Court. Section 2(t) of the Control of Narcotic Substances Act, 1997 defined opium as poppy straw, including all parts of poppy plant (Papaver Somniferum or any other species of Papaver) other than its seeds. It also includes the spontaneously coagulated juice of capsules of poppy which has not been subjected to any manipulations and any mixture in any of the forms of opium. Section 2(v) of the Act , (ibid) specified the "opium poppy" to include all. The species of poppy Somniferum L and section 2(w) of the said Act, defined Poppy Straw to include all parts of the opium poppy but excluded seeds of opium poppy from the narcotic classification of "poppy straw". Keeping in view the definition clause of the enactment applicable, we have also examined the Standard Dictionary published by Kitabistan ' Publishing Company; Terihinology and Information on Drugs published by the United Nations International Drug Control Programme; United Nations Single Convention on Narcotic Drugs, 1961 and other authoritative work done at different forums which lead us to hold that word "Poast" is being used locally and has been given to that part of a poppy plant of whatever specie of this family of plants may be which emerges in form of a bulb, above the plant but beneath its flower and contained seeds thereof. This bulb of the poppy plant is also commonly known as "Doda" and has been mentioned in the Act of 1997 as capsule of a poppy. An unripe capsule of a poppy plant, if given an incision/cut causes some liquid to come out of the capsule with laconic acid and narcotine/morphine. This fluid oozing from the capsule of a poppy plant, if allowed to dry, become brownish colour and is called pure opium for utilization of narcotic action.
This process of making opium is derived from the judgment by this Court in the case of Khair-ul- Rehman and others v. The State and others (PLD 2005 Lahore 440), wherein different authoritative works done by the experts were examined and .Relied. In this precedent case, it was concluded that alkaloids can be extracted even from a mature and dry plant of poppy or poppy straw whether it is in its natural shape or is in a crushed form excluding seeds coming out of the capsules. Harvest of poppy plants including its capsule/ Poast/Doda but excluding seeds is generally called poppy straw, hence very Poast/ Doda is a part of poppy straw and its narcotic material as per definitions above referred.
9. This Court had also held in the case of Khair-ul-Rehman (supra) that Poast or Doda by itself required no ascertainment by Chemical Examiner regarding quantity of morphine etc. Therein.
Keeping in view the above analysis, recovery of 60 k.g. Poast in front of the shop of the appellant was proved to the hilt by the P.Ws. 2 and 3, besides the statement of P.W.4 who also rendered substantial corroboration to the statements of other prosecution witnesses. Muhammad Sarwar constable P.W.l had categorically stated that'he deposited the parcels with the Moharrir and then transmitted the sample to the Chemical Examiner intact. The Chemical Examiner in his report (Exh.PD) has observed that it contains broken pieces of poppy heads, straw and dust. All the four packets sent to Chemical Examiner, were reported to contain narcotic material and his report was positive. In presence of statements of P.Ws. 1 to 3 and report of the Chemical Examiner, deposition of P.W.4/ Investigating Officer of the recovered ontraband material as "tumma" is of no legal value, as he is not an expert. Had the recovery of poppy heads been that of "tumma" as per statement of P.W.4, there was no occasion for registration of case against the appellant, whose first plea before the police should have been that no narcotic material was recovered from him but he did not take this stance at the initial stage of the case. Similarly, petitioner did not cross-examine any of the P.Ws. 1 to 3 that recovery effected from him was that of "tumma". He did not even suggest this aspect of the matter to any of the witnesses including P.W.4, whose statement stood negated by an expert i.e. Chemical Examiner, as discussed above.
10. As regards recovery of four bags containing 60 k.g. Poast from the place outside the shop of the appellant, recovery memo. (Exh.PA) and complaint (Exh.PB) duly proved by the prosecution witnesses, left no room to hold that the appellant was not in active possession of the recovered contraband, as he was caught by the police the moment he unloaded four bags in front of his shop. Assertive/un-shattered statements of P.Ws. Proved prosecution case of recovery of 48.50 k.g.
Poast as by adding 4 k.g. Poast which was sent to the office of Chemical Examiner, Poast weighing 44.50 k.g. Was produced before the trial Court. Deficiency of case property weighing 11-50 k.g. Was taken note by the learned trial ' Judge and a copy of the impugned judgment was remitted to DPO Sheikhupura for inquiry and legal action. Since the trial Court had examined the Poast recovered from the appellant, hence its non-exhibiting is of no significance and would not result in vitiating the registration of case or trial, held in accordance with law.
11. We have minutely examined the statements of prosecution witnesses and there is no material contradiction between them and the minor discrepancies pointed out by the learned counsel for the appellant had no reflexes on prosecution case, as their statements were recorded after lapse A of more than a year from the date of occurrence. File is absolutely thirsty of the proof that party involved in civil litigation with the appellant had any influence over the local police including the complainant to falsely implicate the appellant in a big case involving huge quantity of contraband.
Writ Petition No.3851 of 2004 filed by the appellant against the police was regarding quashment of the F.I.R. No.445 dated 8-11-2003 under section 9(c) of the C.N.S.A., 1997, registered with Police Station City Muridke, District Sheikhupura, on the basis of which he was tried and convicted by the trial Court. In this manner, documents produced in defence as Exh.DA to Exh.DC were not enough to displace the proved case of possession of huge quantity of narcotic material as defined by section 2(t)(w) of the C.N.S.A., 1997. Scan of record and impugned judgment revealed that appellant was g ' correctly convicted and sentenced for the offence charged, without committing any error of law/facts.
12. For the reasons noted above, no case for interference on this appeal was made out and consequently the same being devoid of any merit, is dismissed, maintaining the impugned judgment by the learned Additional Sessions Judge, Ferozewala, District Sheikhupura.