' MUHAMMAD MUZAMMAL KHAN, J.--- This appeal has been directed against the judgment dated 25-1-2005, whereby learned Additional Sessions Judge, Shakargarh convicted the appellant under section 9(c), Control of Narcotic Substances Act, 1997 and sentenced him to R.I. For 5 years with a fine of Rs,20,000 or in default of its payment to further undergo S.I. For 6 months. Appellant was, however, awarded benefit of section 382-B, Cr.P.C.
2. Charge against the appellant, as per F.I.R. (Exh.P.B.) formally registered by Qamar Ahmed Naib Moharrir on complaint (Exh.P.B./1) sent and drafted by Muhammad Iqbal S.-I. (P.W.4), was that on 18-4-2004, while on patrol duty near village Mirzewali, on receipt of a spy information that the accused Shafique was selling Charas in his house, complainant (P.W.4) along with other police officials, reached Mouza Chak Khalil by official vehicle and raided at his house. The accused was apprehended from the courtyard, who on inquiry led to the recovery of one kilogram and ten grams Charas wrapped in a white shopper bag, from North-West corner of a residential room, which was taken into possession vide memo. Exh.P.A. Ten grams Charas was separated for chemical analysis and two sealed parcels were prepared. The complainant drafted complaint Exh.P.B., recorded statements of the witnesses, inspected the place of occurrence, drafted rough site plan Exh.P.C. And on return to police station handed over case property to the concerned Moharrir. On 19-4-2004 he sent the accused to judicial lockup and on receipt of report of the Chemical Examiner on 13-5-2004, he recorded statements of Abdul Hameed Moharrir and Mahmood Masih Constable. During investigation he found the accused guilty and challaned him.
3. The learned trial Judge on receipt of challan framed charge against the appellant under section 9(c), 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 while giving up Zaka Ullah HC/654 P.W. Being unnecessary and Qamar Ahmed Naib Moharrir as having died, tendered in evidence report of the Chemical Examiner as Exh.P.D. P.W.1 Mahmood Masih C/541 on 28-4-2004 received sample parcel in this case and delivered the same intact on the same day in the office of Chemical Examiner. P.W.2 Abdul Hameed being Moharrir received parcels of Charas from the Investigating Officer, kept the same in safe custody of Malkhana and on 28-4-2004 delivered the sample parcel to Mahmood Masih C/541 for onward transmission to the office of Chemical Examiner.
5. P.W.3 Muhammad Islam HC/354 being member of the police party supported the prosecution case by reiterating the story of the F.I.R. He also witnessed the recovery of one kilogram and ten grams Charas, vide memo. Exh.P.A. P.W.4 Muhammad Iqbal, S.-I. Arrested the appellant, recovered one kilogram and ten grams Charas wrapped in a white shopper bag from North-West corner of a residential room, separated 10 grams for chemical analysis, sealed it into distinct parcels, taken the same into possession vide memo. Exh.P.A., prepared site plan of the place of recovery, recorded the statements of the witnesses and during investigation found the accused guilty and challaned him.
6. Appellant was examined under section 342, Cr.P.C. Wherein he claimed to be innocent by asserting that 4/5 days after his arrest this case was falsely registered against him by the police in connivance with one Rana Muhammad Manan, a political opponent of his family. He did not appear in his defence under section 340(2), Cr.P.C. He, however, produced Maqbool Khan son of Allah Dad as D.W.1 and Arshad Khan son of Mohabbat Khan as D.W.2 in his defence. Both the D.Ws.
Produced in defence deposed that police did not raid the house of the appellant, who was arrested on 13/14-4-2004. According to them, appellant owned 10/12 acres land and was involved in a false case by the police in connivance with Rana Manan who contested election of Provincial Assembly, due to his being polling agent of his opponent Col. Abbas. They also deposed that they appeared before the S.H.O. In defence of the appellant.
7. After deepest comprehension of facts; circumstances and prosecution as well as defence evidence, the learned trial Judge pronounced verdict of guilt against the appellant as aforementioned. The convict, thereafter filed instant appeal which was admitted to regular hearing and after completion of record, has now been fixed for final determination.
8. Conviction and sentence awarded to the appellant was attacked by his learned counsel who canvassed his acquittal by evolving formulations namely:--
(i) that no search warrant was procured to conduct raid at a residential house, in severe violation of section 21 of CNSA, 1997, in spite of the fact that it was imperative for the head of the raiding party who had ample time for this purpose,
(ii) that no independent/private witness of the vicinity was either associated with the alleged raid or the investigation and was also not examined by the prosecution, despite occurrence was alleged to have taken at a place flanked by inhabited houses/populated area and non- association of any public witness would militate against the prosecution case,
(iii) that appellant is innocent and the alleged recovery is fake. The house wherefrom the recovery was said to have been made was not in exclusive ownership/possession of the appellant and the story fabricated in this behalf was unnatural/unbelievable, negatively reflecting on the prosecution version,
(iv) that in support of the prosecution case of involvement of the appellant in sale business of narcotics, no prospective purchaser was either named; was arrested at the time of raid or was examined as P.W. And this lapse, should have resulted in failure of the prosecution case,
(v) that sample parcel was illegally remitted to Chemical Examiner with inordinate/unexplained delay of 10 days besides the fact that sample was not prepared by getting small quantity from each slab of Charas thus, the quantity of sample sent to Chemical Examiner, will be considered as the contraband recovered from the appellant,
(vi) that there were major discrepancies in the statements of P.Ws. Which uprooted the prosecution case but were deliberately ignored by the trial Court while returning the conviction. According to him, as per narrations in the F.I.R. The alleged recovered Charas was wrapped in a polythene paper but during trial, it was attempted to be proved to have been recovered from a shopping bag.
Likewise, the person on whose information raid was conducted was not examined, as P.W.3 deposed that he accompanied them but Investigating Officer stated that he was not along with the raiding party. Similarly, acquaintance of Investigating Officer with the accused and his failure to account for the recovery of Charas of the same weight from another person on the day of occurrence, made the case against the appellant highly doubtful and its benefit should have been given to the convict. Distance between the police station and the place of occurrence given by P.Ws.3 and 4 did not coincide, relegating the asserted raid, merely a concoction.
9. Learned prosecutor refuted submissions of the appellant and strongly supported impugned judgment, with the assertions that prosecution has proved its case to the hilt, through consistent/ unimpeachable evidence he graded the pointed discrepancies of no material legal consequence, as a huge quantity of contraband was proved to have been recovered from the convict by the witnesses having no malice or enmity against him.
10. We have minutely considered respective stance of the parties and have examined the evidence on the file with great concern to assertion, as to whether prosecution case was really hallow. All the four P.Ws. Produced by the prosecution have supported recovery of 1010 grams Charas from the appellant and none of them has any malice or enmity against him. P.W.3 Muhammad Iqbal proved to the hilt possession and recovery of Charas. All the prosecution witnesses were cross-examined at considerable length but veracity of their statements could not be shattered. It could not be demonstrated that as to why incriminating statements of police officials were not trustworthy as compared to the statements of private witnesses. Keeping in view the quantity of Charas recovered, there is no probability of its fake plantation, as this thus, much contraband could not have been falsely recovered from the appellant without any animosity on part of any member of the raiding party. Similarly, appellant could not have been substituted in place of any other culprit without any ill motive.
11. Submissions of the learned counsel for the appellant regarding raid at a residential house without search warrant, have not impressed us to set aside reasoned judgment, for the reason that the head of the raiding party received spy information at 3-10 p.m. And the case was registered at 3-50 p.m. And at this time he could not arrange the search warrant from any Court. Section 21 of CNSA, 1997 provided that officials detailed therein, on gaining knowledge that any narcotic, drug etc. In respective of which an offence punishable under the Act has been committed in any building, place or premises and a warrant for arrest or search cannot be obtained against such person, without affording him an opportunity for concealment of offence or facility for his escape may enter such place by breaking open any door and by removing any obstacle.
12. In the given circumstances of this case, had the head of the raiding party thrown himself for arrangement of the search warrant, it was only possible on the next day and in the meanwhile the convict/ appellant must have escaped, thus, we are of the considered view that the raiding party acted strictly in accordance with section 21 of the Act (ibid) without committing violation thereof which even otherwise was of no material substance. Law has provided punishment for a period of three years along with fine which may extend to Rs,25,000 in case vexatious entry, search, seizure or arrest is made in violation of section 20 or 21 of the Act. This punishment has been provided by its section 26 which is a safeguard/protection for the persons not involved in narcotics business/affairs. Besides this safety provided by law, entry and seizure of the Charas recovered proved that the same was not vexatious rather lend support to the prosecution case.
13. Attending to the argument of the learned counsel for the appellant that no independent/private witness from the vicinity was associated in the raid or investigation, reference can conveniently be made to the provisions of section 25 of the Act (ibid) whereby provisions of Code of Criminal Procedure, 1898 have been applied to all the searches and arrests under CNSA, 1997 insofar as those are not inconsistent with the provisions of sections 20 to 23 with the exception of applicability of provisions of section 103 of the Code. In this legal backing, we are alive to the social difficulties of private witnesses to become party to the case like the one in hand. Public-at-large is scared of gangs/groups working in peddling/trafficking of contraband and they do not come forward to save their lives at the cost of their precious time which is utilized by them in other homely affairs of their families. Above all statements of police employees made on oath without any tint of interestedness are as good as any other witness. While forming this view, we have to our credit judgments in the cases of Feroz Shah v. The State 2002 PCr.LJ 1470 and Mirza Shah v. The State 1992 SCM R 1475. In light of the ratio of the above referred judgments, there is hardly any room to hold that on account of non-association of any independent/ private witness in the recovery proceedings, trial against the appellant stood vitiated.
14. Apparently, stance of the appellant of not being in exclusive possession of the house wherefrom the recovery was effected appears to be attractive but he did not produce any proof that this house was jointly owned by him with some other co-owner. During scan of evidence on the file, it clearly emerged that appellant did not deny raid by the police and recovery of Charas from his house, hence it was immaterial whether somebody else was living with him or not. Appellant was taken into custody and was interrogated, in result of which he led to recovery of concealed Charas and this exercise is permissible in view of authorization by section 31 of the Act. We have no doubt that case against the appellant was registered under the law which does not H require necessary arrest of the prospective purchaser as against the case registered under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. Under enactment charged violation of its section 6 would make the offence cognizable, as it prohibits even possession of any kind of narcotics, defined therein. Submission that sample parcel was illegally remitted to the Chemical Examiner with inordinate delay of ten days, is also of no utility to the appellant because the delay was duly explained by P.W.4 by deposing that it happened due to shortage of police employees at the police station concerned'. P.W.1 Mahmood Masih had categorically deposed that he received sample parcel on 28-4-2004 and delivered the same intact to the office of Chemical Examiner the same day. If the sample parcel was transmitted intact the delay simpliciter in transportation was of no consequence. Likewise, contradictions pointed out by the learned counsel for the appellant are so minor that those I neither can be considered to wipe out the offence committed by the appellant nor those make recovery from him doubtful. Such minor discrepancies, if any, are bound to happen by lapse of time. Occurrence in this case took place on 18-4-2004, whereas evidence of the prosecution was recorded on 6-1-2005 after lapse of about eight months, as such we are not ready to bank upon such minor contradictions to set aside the judgment impugned which appears to be in consonance with the evidence on the file. Scan of record and impugned judgment revealed that prosecution successfully proved its case beyond any shadow of doubt and the guilt was correctly brought home.
14. As regards defence plea and evidence in support of it, tenure of cross-examination by the appellant to P.Ws., led to Bald statements of D.Ws.1 and 2 to the effect that appellant was arrested on 13/14-4-2004 are not supported from the record and have no evidentiary value as this defence was not confronted to P.Ws. Except P.W.4. No corroborative documentary proof of appellant's appointment as polling agent of Col. Abbas who was said to be opposing candidate of Rana Manan who allegedly falsely involved him in this case, was produced in spite of availability thus, the defence evidence was also of no avail to him.
15. For the reasons discussed above, we are of the considered view that trial Court has rightly concluded the charge against the appellant and has correctly convicted him with the sentence awarded. No case for interference in this appeal was made out, which being devoid of any merit, is dismissed.