' MUHAMMAD MUZAMMAL KHAN, J.---This appeal assails the judgment, dated 13-4-2002 passed by the learned Additional Sessions Judge, Sialkot convicting the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997, sentencing him to Rigorous Imprisonment of 10 years, with a fine of Rs,10,000, in default of which, he is to further undergo six months simple imprisonment. He was, however, given benefit of section 382-B, Cr.P.C.
2. Precisely, prosecution case is that on 2-1-2001 during investigation of some other case vide F.I.R.
No,1 of 2001 under section 9(c) of the Control of Narcotic Substances Act, 1997, Police Station Rangpura, Sialkot, on disclosure by accused in that case (Muhammad Mushtaq alias Makha), information regarding possession of narcotics by the appellant, a raiding party was arranged and raid was conducted at 6-20 a.m. At the house of the appellant and on his pointation 1200 grams of heroin wraped in a shopper bag was recovered from his "Jisti Bharrola". The recovered heroin was taken into possession vide recovery memo. Exh.P.A., out of which 1-gram was separated for chemical analysis. The Investigating Officer prepared the site-plan Exh.P.C., remitted the - complainant Exh.P.D. For formal registration of F.I.R. No,3, dated 2-1-2001 and prepared recovery memo. Showing recovery of heroin and also recorded statements of the P.Ws. Under section 161, Cr.P.C. And after completing the challan the same was sent up to the Court for trial.
3. The learned trial Court framed charge against the appellant, to which he did not plead guilty and in his statement under section 340(2), Cr.P.C. Stated that he is a conductor in the transport company of Muhammad Mushtaq alias Makha who was accused in F.I.R. No,1 of 2001 under section 9(c) of Control of Narcotic Substances Act, 1997 and was arrested by the police of Rangpura, Police Station. He claimed that he went to see the said Muhammad Mushtaq alias Makha who required him to help for his release from the clutches of the police whereafter, he met the S.H.O. And inquired about the apprehending of accused Muhammad Mushtaq but he got flared up and on account of exchange of hot words between the appellant and the S.H.0., he was falsely involved in this case.
Prosecution produced six witnesses against the appellant whereas Gulzar Ahmad 850-C (P.W.) being unnecessary, was given up. The appellant except producing copy of a judgment dated, 4-8- 2001 acquitting Mushtaq alias Makha from the case vide F.I.R. No,1 of 2001 did not produce any other defence evidence.
4. P.W.1 is Naeem Akhtar 1206-H/C who stated that on 2-1-2001 he was posted as constable at Police Station Rangpura, when Muhammad Mushtaq alias Makha accused of another criminal case made disclosure about big quantity of heroin in possession of the appellant. According to this witness, on receiving this information, a raiding party was formed and raid was conducted, headed by Irfan-ul-Haq, Inspector along with Muhammad Akram, Riaz Ahmad A.S.-I., Riaz Bajwa, A.S.-I., Gulzar and Idrees constables including the witnesses and heroin weighing 1200 grams was recovered from "Jisti Bharola" of the appellant. Heroin recovered was marked as Exh. P.1. He further deposed that 1-gram heroin was separated, for chemical examination. The recovery memo. Was prepared which was signed by him and Gulzar Ahmad 850/C. P.W.2 is Ghulam Rasool 1203/H.C. He deposed that on 2-1-2001, Irfan-ul-Haq Inspector handed over to him two parcels, one containing one gram of heroin while the second with 1199 grams of heroin which were handed over by him to Muhammad Riaz 1218-C for onwards transmission to the Chemical Examiner Office, Lahore, in-tact.
Parcel containing recovered heroin weighing 1199 grams was deposited by him in the Malkhana for safe custody. He certified that during the period, parcels remained in his custody, were not tampered by anybody. P.W. 3 is Muhammad Riaz 1218-C, he stated that on 11-1-2001, Moharrir had handed over to him one sealed parcel containing heroin for its transmission to the Chemical Examiner Office, Lahore, which he delivered on the same day intact. P.W.4 is Abdul Rashid A.S.-I.
Who deposed that on 2-1-2001 he received a written complaint from Irfan-ulHaq Inspector/ S.H.O.
Through Muhammad Idrees constable 1624 for registration of formal F.I.R. (Exh.P.B.) which was in his hand writing and was signed by him. P.W.5 is Basharat Ahmad, S.-I. Who made a statement that on 2-1-2001, during patrol he was present at Chowk Sublime Sialkot where the investigation of this case was entrusted to him and he reached at village Harrar, recorded the statements of the witnesses under section 161, Cr.P.C. Inspected the spot, prepared the unsealed plan Exh.P.C. Which is in his hand writing and bears his signatures. He also conducted the investigation and found the accused guilty and arrested him. He remitted the case property to Moharrir and also put the accused in Havalat. Challan was prepared and sent up by him for trial. P.W.6 is Irfan-ul-Haq, Inspector/S.H.O. Who stated that on 2-1-2001, during the investigation of another case (F.I.R. No,1 of 2001), accused of that case Mushtaq alias Makha had informed him that the appellant is involved in narcotics business and is in possession of it. According to him, raiding party was arranged and raid was conducted at 6-20 a.m. At his house and on pointation of the appellant, 1200 grams of heroin wraped in shopper bag was recovered in "Jisti Bharrola" which was recovered in presence of Naseer Ahmad and Gulzar Ahmad witnesses. Two parcels of heroin and sample, were prepared separately, complaint was sent through Muhammad Idrees constable for registration of formal F.I.R. To police station. Complaint Exh.P.D. Was prepared at the spot.
5. At the conclusion of the trial, the appellant was convicted, as noted above, with the finding that the prosecution has successfully proved its case against him, of being in possession of 1200 grams of heroin. The appellant aggrieved of his conviction has filed instant appeal which after notice to the State, has now been laid for final determination.
6. Learned counsel for the appellant submits that there are major discrepancies and contradictions between the statements of the prosecution witnesses, as such, conviction of the appellant cannot be maintained, on this basis, thereof. He further submits that entire prosecution case is doubtful because date given on Exh.P.D. (complaint), carries, date of 12-1-2001 whereas the case was registered on 2-1-2001. According to him, date mentioned beneath the site-plan Exh.P.C.
And the recovery memo. Exh.P.A., is also 12-1-2001 and this shows that all the proceedings of preparing of complaint, site-plan and recovery memo., were subsequently engineered, just to falsely involve the appellant. It has also been contended on behalf of the appellant that in the charge framed against the appellant, the alleged recovery of heroin is said to have been made from personal search of the appellant whereas in the complaint and the F.I.R., it was made from the ' "Jisti Bharrola" lying in his house. According to him, this material contradiction makes the case of prosecution doubtful, entitling the appellant, his acquittal from the case. He further pointed out that person who carried the sample taken by the Investigating Officer, at the time of alleged recovery, for Chemical Examination has not been produced by the prosecution, without which it cannot be said with certainty that parcel containing sample was transmitted intact and was not tampered during the course of remittance. He further attacked that the complainant himself is Investigating Officer and having an interest in earning conviction of the appellant, conducted partial investigation of the case. Learned counsel for the appellant strenuously argued that the appellant was falsely involved on account of exchange of hot words with complainant/S.H.0. Due to detention by him of Mushtaq Ahmad, employer of the appellant. Learned counsel referred to judgment Exh.D.1 to show that case against Mushtaq alias Makha was also false wherefrom he was acquitted by the Court. On the basis of this judgment, it was asserted that case against the appellant is also mala fide and fake.
7. Both the learned counsel appearing on behalf of the State and special prosecutor ANF, refuted the assertion of the appellant, supported the judgment of the trial Court and urged that there is no discrepancy in the statements of prosecution witnesses on account of which, trial of the case could be said to have vitiated. They further argued that possession and recovery of heroin of 1200 grams from the appellant is proved beyond any shadow of doubt and narration of story regarding his false implication in the case, is mere concoction. They also contended that defence pleaded by the appellant is not sufficient to assume that he was involved in the case on the basis of fake recovery of 1200 grams of heroin value of which runs in lacks of rupees. Learned counsel appearing on behalf of the prosecution also referred to section 537, Cr.P.C. To contend that error if any, in framing of charge is of no help to the case of the appellant because on the basis of it, his, conviction cannot be set aside.
8. We have anxiously considered the respective arguments of the learned counsel for the parties and have examined the entire record minutely. All the six P. Ws. Produced by the prosecution, have supported recovery of 1200 grams of heroin from the appellant who have not been proved to have any malice or enmity against him. Incriminating statements of the prosecution witnesses on Oath proved beyond any shadow of doubt, recovery of heroin as noted above. It is not shown as to why police would make fake recovery of just huge quantity, just to involve the appellant on a petty dispute which if at all, be accepted as correct. To our mind such incident which otherwise is not proved does not furnish basis for plantation of heroin value of which runs in lacks of rupees.
Complainant, if at all, was under any pressure could do by planting lesser quantity of heroin or by showing some other narcotics of cheaper value. Purchase of more than 1 kilogram of heroin by an Inspector of police in Grade-16 is not imagthable and that too, for false plantation, against a person, with whom he had no enmity.
9. Contradictions pointed out by the learned counsel for the appellant, on the one hand are so minor that those neither can be considered for annulling the entire A trial nor those make the recovery from the appellant, doubtful, whereas on the other hand, those appeared to have been falsely engineered at the behest of the appellant. All the documents including complaint, site-plan and recovery memo. Were prepared on 2-1-2001, the day on which the F.I.R. Was registered.
Someone, in order to help the appellant, tampered the judicial record by putting word one with the dates mentioned on those documents. Addition of word "1" with the dates on Exh.P.A., Exh. P.C. And Exh. P. D. Is visible to the naked eye, as it is with a different pen and ink. P.W.6 (Irfan-ul-Haq) categorically stated that recovery memo. Exh.P.A. And complaint Exh. P. D. Were prepared by him, at the spot on 2-1-2001 and are signed by me. No question was put to him in cross-examination that these documents were prepared by him on 12-1-2001. Likewise P.W.5 (Basharat Ahmad, S.-I.) prepared site-plan and specifically deposed that he prepared the site-plan Exh. P.C. At the spot which is signed by him on 2-1-2001. No question to this witness, as well, was put as why the site- plan is dated 12-1-2001. We are clear in our mind that the date has been tampered and we are not ready to give any benefit to the appellant due to this tampering.
10. No doubt the learned trial Judge while framing charge on 26-4-2001 mentioned that police recovered heroin weighing 1200 grams on personal search of the appellant but this narration is only due to inadvertence. The entire prosecution case was proved at the trial through consistent statements of the prosecution witnesses who had deposed that the recovery was effected from "Jisti Bhorrola" of the appellant, B lying in his house. In view of the provisions of section 537, Cr.P.C., no findings, sentence, order passed by a Court of competent jurisdiction, can be reversed or altered on account of any error, omission or C irregularity in the charge, framed against the appellant, hence, this arguments of the appellant, has no substance in it and is consequently turned down. Similarly, argument that person transmitting sample of heroin to the Chemical Examiner Office, having not been produced, negatively reflects on the prosecution case. This argument over looks the statement of P.W.3 (Muhammad Riaz 1218-C). This is the witness who himself carried the sample parcel of heroin to the Chemical Examiner Office and delivered it there, intact. The other argument regarding complainant being himself the Investigating Officer has also not impressed us. On the one hand complainant after preparing the complaint and recovery memo. (Exh.P.D. And D Exh.P.A. Respectively) handed over the investigation of the case to P.W.5 who prepared the site-plan and took all steps towards completion of the challan, whereas on the other hand, there is no bar for a complainant to investigate the case himself E unless and until some malice or mala fide on his part is shown.
11. Recovery of 1200 grams of heroin from the appellant is proved and has also been certified by the Chemical Examiner through his report Exh.P.E., as heroin. Consistent statements of all the P. Ws. Who have repeatedly been held as reliable witness, like any other private witness unless those are proved to have some enmity against the accused or having any interest to depose falsely, implicating the accused. State functionaries having no interest in the case, as noted above, their depositions can be relied to give a judgment, like the one in hand, reference can be made to the cases of Maulvi Ghulam Rasool v. Administrator Auqaf Sindh and another 1976 SCM R 73, Sikandar and 2 others v. The State PLD 1978 SC 185, Gul Nawaz v. The State 1998 PCr.LJ 1730, Feroze Shah v. The State 2002 PCr.LJ 1470 and Mirza Shah v. The State 1992 SCM R 1475. Reliance on P.Ws. Does not leave any doubt about prosecution case and thus, we find that the trial Court has rightly relied on the statements of P.Ws. For the decision impugned in this appeal.
12. Judgment Exh.D.1, produced by the appellant, acquitting Mushtaq alias Makha from the case against him vide. F.I.R. No,1 of 2001, dated 2-1-2001 can in no manner be of any help to the case of the appellant because that case was decided on the basis of altogether different set of evidence and we are not ready to accept that since Muhammad Mushtaq alias Makha was acquitted, the appellant should also be meted with the same treatment. In view of our findings in the foregoing paragraphs, we are convinced that case against the appellant is proved, beyond any shadow of doubt.
13. For what has been discussed above, we are of the considered view that the trial Court has rightly concluded the charge against the appellant and has rightly convicted him of the offence committed by him under section 9(c) of the Control of Narcotic Substances Act, 1997. This appeal has no substance in it and is accordingly dismissed.