' M. JAVED BUTTAR, J.---The appellant Muhammad Hassan Khan, was tried by Additional Sessions Judge, Lahore in case F.I.R. No.5/99 dated 22-1-1999, registered at Police Station Bhatti Gate, Lahore, for the offence under Articles 3 & 4 Prohibition (Enforcement of Hadd) Order, 1979 and sections 6/9 of Control of Narcotic Substances Act, 1997, at the instance of complainant/ P.W.6 Muhammad Farooq S.-I/S.H.O, Police Station Bhatti Gate Lahore for the recovery of 4 kilograms of heroin from his possession. The learned trial Court, vide its judgment dated 5-7-2002, convicted the appellant under section 9(c) of Control of Narcotic Substances Act, 1997, and sentenced him to 14 years' R.1, with a fine of Rs.100000 and in default of the payment of fine, to further undergo six months' S.I. The appellant was, however, extended the benefit of section 382-B Cr.P.C. The appellant, through the present appeal, has assailed the legality and correctness of his conviction and sentence.
2. The prosecution case as set in the complaint (Exh.PA) is that on 22-1-1999, the complainant, Muhammad Farooq, S.-I., S.H.O. (P.W.6), along with A.S-Is Ikram-ul-Haq and Naazar Hussain (P.W.4 and P.W.5), Constables Muhammad Saleem, Muhammad Yousaf, Muhammad Ismail and Muhammad Mukhtar (P.W.2) was present at picket/Naka at Bhatti Square (Chowk) opposite Jamia Masjid Hanfia Ghousia when an informer gave information that two pathans, carrying polythene bags of black colour in their hands, containing huge quantities of heroin, were present at Wagon Stop, Bhatti Square (Chowk) and if raided immediately, they can be arrested with heroin, accordingly the complainant accompanied by the above named police officials and informer, raided the Wagon Stop and on the pointation of the informer, he apprehended two persons , including the present accused/appellant. The name of the other person was disclosed as Karamat Shah. The shopper bag of the appellant was searched. It contained four packets of heroin, each weighing 1000 grams. The I.0 separated one gram of heroin from each packet as samples for chemical analysis and four sample parcels and the parcel of the rest of the heroin were sealed and were taken into possession, vide recovery memo (No.Exh.PB). The complaint was prepared at the spot at 2-40 p.m. And was sent to the Police Station through Constable Muhammad Yousaf.
The investigation was completed by the I.O./complainant and challan was submitted in Court.
3. Charge was framed on 16-11-1999, which was pleaded not guilty and trial was claimed.
4. P.W.1, Muhammad Sabir, A.S.-I, on the basis of the complaint, recorded formal F. I. R, Exh.PA/1.
5. P.W.2, Muhammad Mukhtar, Constable, received four sealed parcels from Moharrir, Muhammad Siddique, on 25-1-1999, for onward transmission to the office of Chemical Examiner, Lahore. He delivered the said parcels in the above office, on the said date.
6. P.W.3, Muhammad Siddique, Head Constable, stated that on 22-1-1999, S.-I. Muhammad Farooq (the complainant) handed him over four sealed parcels for safe custody, He kept them in the Malkhana and on 25-1-1999, he handed over four parcels to Constable Mukhtar Ahmad for onward transmission to the office of Chemical Examiner, Lahore. In the cross-examination, he stated the parcels could not he sent on 22-1-1999 due to law and order duties from 22-1-1999 to 25-1-1999.
7. P.W.4, Ikram ul-Haq A.S-I, was member of the raiding party. He proved the recovery of heroin (P1) from the possession of the accused appellant. He fully supported the complaint and the prosecution case. He is also an attesting witness of recovery memos Exh.PB and Exh.PC.
8. P.W.5, Naazar Hussain A.S-I., was also member of the raiding party. He also proved the recovery of heroin and fully supported the prosecution case and the complaint. He corroborated P.W.4 on all material aspects of the case.
9. P.W.6, Muhammad Farooq, S.-I., fully supported his complaint. He also narrated different steps taken by him during the investigation. He recorded the statements of P.Ws. Under section 161 Cr.P.C, obtained physical remand of the accused for four days and completed the investigation. He was not cross-examined, although an opportunity was given. Subsequently an application was submitted by the accused on 25-7-2001 for affording him an opportunity to cross-examine P.W,6 which was allowed, vide order dated 25-7-2001. Later on it came to the knowledge of the Court that the said P.W. Had died and in this regard, statement of Ijaz Iqbal, Constable, was recorded.
10. The D.D.A. Tendered in evidence report of Chemical Examiner (Exh.PE) and closed the prosecution case.
11. The appellant, in his statement under section 342, Cr.P.C., answered question No.4, that why the P.Ws. Deposed against him and why this case was registered against him, as follows:- Answer.
" I have been dealing in hosiery business for the last many years. I used to purchase the hosiery items from Shah Alam Market and for this purpose, I always stayed in Al-Farooq Hotel, Shah Alam Market Lahore. I was arrested by Muhammad Farooq S.-I. Prior to the registration of case against me from Al Farooq Hotel, in the presence of Azam, Manager of Al Farooq Hotel and others on the instigation of Haji Peer Dad Khan, who is inimical toward me. Karamat Shah s/o Abdullah Shah, my alleged co-accused, who is confined in Central Jail Kot Lakhpat Lahore, after his conviction on his confession, if summoned from Central Jail Kot Lakhpat, Lahore, will depose that I was not his co- accused. Rather Haji Peer Dad Khan, was his accomplice, who was released by Muhammad Farooq S.-I. After obtaining illegal gratification from him. On the next date of my arrest I was detained in lock up of police station Lower Mall, Lahore, on my hue and cry, I was produced before the concerned D.S.P. I told the D.S.P. The whole story, who produced me before the S.P. And after hearing me at length the S.P. Ordered for fresh investigation but the order of S.P for fresh investigation was not complied with and I was sent to judicial lock up without fresh investigation. Nothing was recovered from me at the time of arrest. The P.Ws. Have deposed against me on the asking of Investigating Officer."
' The appellant opted to appear as his own witness under section 340(2), Cr.P.C. And to produce evidence in defence. In defence, he produced co-accused Karamat Shah as D.W.I and Muhammad Azam as D.W.2.
12. D.W.1, Karamat Shah, stated that he was arrested on 22-1-1999 by the police of Police Station Bhatti Gate in connection with narcotic case and at that time one Peer Dad, who was accompanying him, was also arrested but was subsequently let off by the police for illegal gratification and on the next day, at about 7-00 a.m., he saw the present appellant under arrest, the present appellant was not previously known to him and he had not been arrested at the time when this witness was arrested and nothing was recovered from the appellant in his presence. He further stated that narcotics belonging to Peer Dad was dishonestly planted upon this accused/appellant and that the accused was innocent.
13. D.W.2, Muhammad Azam, stated that the accused used to stay in his hotel namely Al-Farooq, and in the month of January, 1999, the accused was apprehended by the police while he was entering the gate of the hotel, the accused was searched but no narcotic was recovered from the accused in his presence.
14. The appellant, while appearing as his own witness under section 340(2), Cr.P.C., stated on Oath, as under:-- "Stated that on 15/16 of the month of January in the year, 1999, I was arrested from inside Hotel Al- Farooq, Lahore by Ikramul-Haq, A.S-I, whose name was known to me later on. At the time of my arrest, the police had recovered a Mobile Set and cash amounting to Rs.3000/3500. Nothing else was recovered from my possession at the time. During those days, I used to deal in Minari business and I used to stay in the said Hotel for the last about 2/3 years prior to the occurrence. The police then took me to P.S. Bhati Gate, Lahore, which is at a distance of about 1-1/2 - 2 K.m from Farooq Hotel. The said Hotel does not fall within the territorial jurisdiction of P.S. Bhatti Gate, Lahore. The police locked me up in a room of police station where three other persons were already present.
One of them was Aziz Gul, while the other was Pir Dad Khan. The name of the third person was Karamat Shah. Aziz Gul, named above, was previously known to me while the remaining two were not known to me previously. The said Aziz Gul was a member of my opponents belonging to Peshawar with whom I had long standing enmity. The S.H.O. Of P.S. Bhatti Gate, namely, Rana Farooq, after obtaining Rs,3,00,00,000 from Pir Dad, named above, let him off. Aziz Gul, was also let off by the S.H.O. But I do not know whether he was let off after obtaining some money or not. At the time of my arrest from Hotel Al-Farooq, Manager of Al-Farooq Hotel was also there. In the evening I was sent to the lock up of P.S. Lower Mall Lahore. I was produced before the D.S.P. On the next day, where, I pleaded my innocence. The D.S.P, ordered my production before the S.P on the next day, where, I reiterated my innocence. The S.P ordered for inquiry and handed me over to his own staff.
On the next day, Police of P.S. Bhati Gate took me along from the lock up of P.S. Lower Mall, Lahore, wherefrom I was produced before a Court of law at Lahore and then I was locked up in jail. No heroin was recovered from my possession and the present case is absolutely baseless."
15. We have heard the learned counsel for the appellant, the State and have also seen the record with their help.
16. It is submitted by the learned counsel for the appellant that the prosecution has miserably failed to establish the guilt of the accused beyond reasonable doubt, the statements of recovery witnesses and the I.0 are discrepant, the samples were sent to the Chemical Examiner with delay without any explanation for the delay, the statements of D.Ws. Inspire confidence, a very small quantity of heroin was sent to the Chemical Examiner for analysis, the accused himself entered in the witness-box and fully explained his illegal arrest and the plant of heroin, the recovery is fake, P.W.4 and P.W.5 have stated that I.0 had separated ten grams of heroin from each packet as samples but the I. .O had stated that he had separated only one gram of heroin from each packet, that the statement of P.W.6/I.0 cannot be read in evidence for the reason that he was not cross- examined by the learned defence counsel (Relies on Article 47 of Qanun e Shandat Order 1984) and that the appellant is liable to be acquitted.
17. The learned counsel for the State has opposed the contentions and has submitted that the prosecution has successfully proved its case, the recovery of heroin from the possession of the appellant has been proved, there was no reason with the I.0 to falsely implicate the accused and for the P.Ws. To depose against him, minor discrepancies are not fatal to the prosecution case and even otherwise the statements of the P. Ws. Were recorded more than two and a half years after the , occurrence.
18. The recovery witness (P.W.4 and P.W.5),both A.S-Is, remained consistent in their depositions with regard to the place, time and mode of recovery and the other relevant details and the 1.0 also corroborated on all material aspects with regard to the recovery of heroin from the accused/appellant. Safe custody of samples of the heroin, in the Malkhana, has been proved by P.W.3 while safe transmission has been proved by P.W.2. Report of Chemical Examiner has established that the samples contained heroin. The case property i.e. Heroin, was produced in Court. It was not challenged. In our opinion recovery of four kilograms of heroin from the possession of the accused/appellant stands established beyond reasonable doubt. The discrepancies, pointed out by the learned counsel, are minor in nature and not material. The discrepancy, pointed out in regard to the weight of the samples, is not supported in Urdu version of the statement of P.W.4. Urdu version of the statement of P.W.5 is not available on the record. The possibility of typing error in the English version cannot be ruled out. Even otherwise, it stands established that some quantity of heroin was separated from each packet as samples and all the four sample parcels were sent for chemical analysis and vide report of the Chemical Examiner (EX.PE), all of them contained heroin, The case of the prosecution has, therefore, not become doubtful. The delay in dispatching the parcels to the office of Chemical Examiner has been explained by P.W.3. He stated that the same could not be dispatched earlier due to the law and order duties. Furthermore, in the narcotic case, the Courts cannot expect, the evidence of the nature, which is generally available in an ordinary criminal case and the Hon' ble Supreme Court has provided guidelines to the effect that in such like cases the Courts' approach should be dynamic and the technicalities are to be overlooked in the larger interest of the country and the public at large. In Munawar Hussain alias Bobi and 2 others v. The State (1993 SCM R 785), the Hon'ble Supreme Court held that: "the Courts cannot expect in cases of smuggling of narcotics, the evidence of the nature, which is generally available in an ordinary criminal case, as the persons who indulge in the above nefarious activities are more organized, affluent and influential and, therefore, generally, they manage to cause dents in the prosecution evidence. In such like cases, which are not only damaging the image of Pakistani Nation in the comity of nations, but are making our young generation addicts to narcotics, the Courts' approach should be dynamic and they should overlook technicalities in the larger interest of the country and the public at-large. The Court is to consider the entire material on record as a whole and if it is convinced that the case is proved, conviction should be recorded."
19. The argument that the statement of P.W.6/I.0 cannot be read in evidence for the reason that he was not cross-examined by the defence counsel, has also no force. The record shows that opportunity to cross-examination was afforded which was not availed. The subsequent efforts, to which the trial Court agreed for cross-examining P.W.6, did not bear fruit because the witness died in the meanwhile. The complaint EX.PA/1 was proved by P. W6 during his life time. Similarly, the recovery memos etc. Were proved by him. Since the opportunity to cross-examine P.W.6 was given and it was sufficient, the examination-in-chief of P.W.6 cannot be ignored and cannot be treated as waste paper. Furthermore, the trial Court has correctly observed that even if the statement of 1.0 (P.W.6) is excluded, still there is sufficient material available on the record, in the shape of the statements of recovery witnesses i.e. P.W.4 and P. W .5.
20. The law has not fixed any specific quantity of the recovered narcotics to be sent as sample for chemical analysis, therefore, the argument of the learned counsel for the appellant in this regard has no force.
21. D.W.1, Karamat Shah, had himself been convicted and sentenced in narcotics case. He, in our view, falsely deposed merely to help an acquaintance and accomplice. He was arrested along with the appellant on the same date and time from the same spot, on the basis of the common information given by the informer. D.W.2, Muhammad Azam, never appeared before the police officers to depose in favour of the accused. His statement, in our view, is merely an afterthought and was correctly disbelieved by the learned trial Court. The appellant's version, as deposed by him in his statement as well, is not believable. The 1.0 had no enmity with the appellant to implicate him falsely and plant a huge quantity of four kilograms of heroin on him.
22. In view of the above mentioned, we are convinced that the prosecution has successfully proved its case against the appellant beyond reasonable doubt.
23. In view of the above discussion, we see no merit in this appeal which is accordingly dismissed.