' MAZHAR HUSSAIN MINHAS, J.---Since Criminal Appeal No,334-J of 2005 and Criminal Appeal No,1673 of 2005 have emanated from the same judgment, therefore, both are being decided by this single judgment.
2. The appellants in both the aforesaid appeals along with another since (PO) were tried by Mr. Pervaiz Ali Chawla, learned Judge Special Court C .N.S. A. , Lahore, in case F.I.R No,28, dated 4-9- 2003 for the offences under sections 9-C/15, C.N.S.A., 1997 Police Station Anti-Narcotics Force, Lahore. Vide judgment, dated 29-8-2005 the appellants Qamar-ud-Din and Muhammad Akram alias Major were convicted under sections 9-C/15 C.N.S.A. And sentenced to imprisonment for life each and a fine of Rs,5,00,000 each, in default whereof one year S.I. Each while appellant Safdar Abbas was convicted and sentenced to ten years' R.I. With fine of Rs,1,00,000 in default whereof to serve six months' S.I. Benefit of section 382-B, Cr .P.C. Was extended to all of them.
3. Precisely, the facts narrated in the F.I.R. (Exh.P.M.) are that on 4-9-2003 Commander, ANF, Punjab received information from Special Investigation Cell, Islamabad, that accused Qazi Iqbal (PO) and appellants Qamar-ud-Din Butt and Muhammad Akram alias Major belong to inter provincial gang of drug paddlers and some members of their gang were going to deliver narcotics to some customer near Shabistan Hotel, Lahore. On this information, a raiding party which consisting of Rao Zahid Mehmood, Inspector/S.H.O. Police Station ANF, Lahore (P.W.2), Major Shamshad Hussain Dar, Deputy Director, Syed Sajeel Hader; Assistant Director, Nadim Islam, Assistant Director and other officials was arranged. They under the supervision of Lieutent Colonel Muhammad Khalid, Joint Director, ANF, Punjab reached Shabistan Hotel near Railway Station, Lahore, in official vehicles and officials in civil dress were deputed for vigilance. At about 5-00 p.m. a silver-coloured Cuore Car No,FS-9240 stopped in front of the Hotel in which three persons were boarding who were identified by the informer. After sometime, the vehicle moved away from that place upon which it was encircled and those persons were apprehended. Appellant Safdar Abbas was sitting in the driving seat, appellant Qamar-ud-Din Butt was sitting on the front seat while appellant Muhammad Akram alias Major was sitting on the rear seat. Muhammad Akram alias Major was carrying a shopper in his right hand containing a packet of heroin. After some interrogation, Qamar-ud-Din Butt also got recovered a packet of heroin from under the front seat. On further search of the vehicle, a shopper containing eight packets of heroin was recovered from its Dikki. The packet of heroin recovered from possession of Muhammad Akram alias Major came to 1 Kg. Out of which 10 grams heroin was separated and sealed into a parcel for chemical analysis. Remaining heroin was also sealed into a parcel. The packet of heroin recovered from Qamar-ud-Din Butt also came to 1 Kg. Out of which 10 grams heroin was separated and sealed not a parcel and remaining quantity was sealed into a separate parcel. Packets of heroin recovered from the Dikki of the car came to 1 Kg. Each. Five grams heroin from each packet was separated and a sample parcel of 40 grams was prepared. Remaining quantity of heroin was also sealed into a parcel (Exh.P.1). All the parcels of heroin and vehicle (Exh.P.2) were taken into possession by Rao Zahid Mehmood Inspector/S.H.O.
Through recovery memo. Exh.P.A. Attested by Subedar Muhammad Siddique, ANF, Lahore and Muhammad Arif Constable, ANF, Lahore (P.W.1). On personal search of appellant Safdar Abbas, an amount of Rs,2400 P.3, a Mobile Phone of Siemen Company P.5, a wrist watch Samsung P.4, document P.6, a valet P.7, his driving licence P.14 and Registration Book of the vehicle P.15 were recovered which were taken into possession vide recovery memo. (Exh.P.B.) attested by P.W.1 Muhammad Arif and Subedar Muhammad Siddique, ANF (GPW). An amount of Rs,455 P.8, a Mobile Phone of Ericsson Company P.9 and a small phone directory P.10 were recovered from the appellant Qamar-ud-Din Butt which was taken into possession vide recovery memo (Exh.P.C.) attested by the aforesaid recovery witnesses. An amount of Rs,1070 P.11, a Phone Directory P.12 and Samsung wrist watch P.13 were recovered from appellant Muhammad Akram alias Major which were taken into possession vide recovery memo. (Exh.P.D.) attested by the said witnesses.
' Rao Zahid Mehmood, Inspector/ S.H.O. Drafted the complaint (Exh.P.E.) and sent the same to the police for registration of case through Ehsan Ahmad Constable. On the basis of complaint, F.I.R (Exh.P.M.) was recorded by Muhammad Sarwar, A.S.-I./Moharrar, Police Station ANF, Lahore. P.W.2 prepared the site-plan (Exh.P.F) and carried out the other necessary proceedings at the spot. The case property was handed over to Rana Muhammad Sarwar, A. S. -I. /Moharrar (P.W.4) for safe custody. He dispatched the sample parcels of narcotics to the Office of Chemical Examiner, Lahore, through P.W.3 Mehmood Ahmad, Head Constable, ANF.
4. Accused Qazi Iqbal (PO) could not be arrested, therefore, he was got declared a proclaimed offender and the appellants were challaned under sections 9-C/15 C.N.S.A. 1997 to face the trial.
5. Learned trial Court framed the charge against them to which they pleaded not guilty and claimed their trial. To prove its case, the prosecution examined four witnesses namely P.W.1 Muhammad Arif Constable,- P.W.2 Rao Zahid Mehmood Inspector/S. H.O, P.W.3 Mehmood Ahmad, Head Constable and P.W.4 Rana Muhammad Sarwar, A.S.-I. And tendered in evidence reports of Chemical Examiner Exh.P.J , Exh. P.K. And Exh P L. Which are positive. After the recording of prosecution evidence, statements of Mt, appellants were recorded under section 342, Cr. P.C.
Wherein they pleaded their innocence and stated that they have been falsely implicated and no recovery whatsoever had been effected from them. Appellants Qamar-ud-Din Butt and Muhammad Akram alias Major got recorded their statements under section 340(2), Cr.P.C. Also, however, they did not produce any defence evidence. Appellant Safdar Abbas, however, examined D.W.1 Shahid son of Malik Qasim resident of Faisalabad. He tendered booking record of Malik Rent- A-Car, Faisalabad (Exh.D.C.), but did not opt to make statement under section 340(2), Cr.P.C. The appellant Muhammad Akram alias Major, in his statement under section 342, Cr.P.C. As well as in his statement on oath under section 340(2), Cr.P.C., took the plea that this case was fabricated against him at the instance of Major Shamshad Dar with whom he was having a business rivalry.
According to him, they used to deal in non-custom paid vehicles. Major Shamshad Dar brought a car from him from Para Chanar and sold it to Mr. Khushnood Ali Khan, Chief Editor "Daily Khabrain", but did not pay the appellant its price on the pretext that the vehicle had been impounded by the customs authorities. Thereupon he moved applications against Major Shamshad Dar to difference authorities and, as such, since 1997 they were having rivalry with each other. The appellants further stated that on 2-9-2003 at about 2-00 p.m. They proceeded for Lahore from Faisalabad and reached there at about 5-00 p.m. On their way Haji Fazal Karim resident of Jehangira and Ikaram Ullah resident of Aabdara were making telephone calls to Qamar-ud-Din Butt, asking him to reach Lahore where a non-custom paid 20D car was available for them. According to the appellant, after reaching Lahore, he and Safdar Abbas driver went to Room No,123 of Paradise Hotel, where said Fazal Karim, and Ikram Ullah were present. They asked them that the car was parked in front of Shabistan Hotel, Lahore, whereupon they came to said hotel where some persons in civil dress came in a Hiace vehicle and apprehended them. Qamar-ud-Din Butt, who was present in the car, was also apprehended and they were taken to Rawalpindi. After a few days they were confined in the Jail where they came to know that narcotics had been planted against them. Appellant Qamar-ud-Din Butt has also made a similar statement. Appellant Safdar Abbas has pleaded that he is working in Malik Rent-A-Car Company, Faisalabad as driver. On 2-9-2003 his co-appellants hired the vehicle and they left for Lahore at 2-00 p.m. And reached near Shabistan Hotel at about 4-15 p.m. After sometime some persons encircled their vehicle and apprehended them, nothing was recovered from their possession as well as from the vehicle. They were blindfolded and taken away to Office of ANF in a vehicle. On 9-9-2003 they were lodged in the jail where they came to know that they have been implicated in this case.
6. We have heard Khawaja Sultan Ahmad, Advocate, learned counsel for appellant Safdar Abbas, Mr. M.S. Shad and Mirza Abdullah Baig, Advocate, learned counsel for appellants Qamar-ud-Din Butt and Muhammad Akram alias Major and Mr. A.D. Nasim, Special Prosecutor, ANF and have gone through the record with their able assistance. Learned counsel for appellant Safdar Abbas has contended that there is nothing on record to connect the appellant with the commission of crime.
He has been involved in this case on the statement of co-accused which is inadmissible in evidence. Any recovery of narcotics has not been effected from him nor it was in his knowledge that his co-appellants were carrying the narcotics.
7. Learned counsel for the appellants Qamar-ud-Din Butt and Muhammad Akram alias Major have submitted that place of recovery is located in the heart of city and it has been admitted by the P.
Ws. That some private persons were available there at the relevant time, but any public witness has not been associated in the recovery proceedings. The shoppers which contained the packets of heroin were not produced in evidence. Data of reparation of parcels was not mentioned on them. The numbers of vehicles on which the officials of raiding party reached the place of recovery were not mentioned in the complaint. Identification marks were not recorded on the parcels recovered from the appellants. It has been further contended that the appellants have been falsely implicated and narcotics has been planted against them on the behest of Major Shamshad Dar who was hostile against Muhammad Akram alias Major as the latter moved applications against him to different quarters. It has been next contended that only the quantity of narcotics sent to the Chemical Examiner for analysis may be considered against the appellants. Reliance in this respect has been placed on Muhammad Hashim v. The State PLD 2004 SC 856. Lastly, it has been contended that the narcotics recovered from the Dikki of the are was not in their personal possession, therefore, at the most offence under section 9-B, C.N.S.A. 1997 is attracted against the appellants. On the other hand, learned Special Prosecutor has repelled the above contentions and has supported the impugned judgment.
8. We have consciously considered the arguments of both sides and have scanned the evidence on record. The time and place of recovery has been admitted by the appellants in their statements under section 342, Cr. P. C . Was well as section 340(2), Cr.P.C., though they have mentioned the date of their arrest as 2-9-2003 instead of 4-9-2003. To prove the recovery of heroin from the appellants Qamar-ud-Din Butt and Muhammad Akram alias Major and from the Dikki of the car, the prosecution has examined P. W.1 Muhammad Arif Constable, A.N.F. And P.W.2 Rao Zahid Mehmood, Inspector/ S.H:O. Police Station ANF, who have consistently stated that on 4-9-2003 at about 5-00 p.m. The appellants were apprehended in front of Shabistan Hotel, Lahore. A packet of heroin weighting 1 Kg. was recovered from the personal possession of appellant Muhammad Akram alias Major while Qamar-ud-Din Butt took out the packet of 1 Kg. Heroin from underneath the front seat of the car and produced the same before P.W.2/Investigating Officer. They have further stated that on the search of car, a shopper containing eight packets of heroin was also recovered.
Each packet of heroin came to 1 Kg.. On weighing. According to the P.Ws. 10 grams heroin from each packet recovered from the personal possession of the appellants, was separated and sealed into parcels for chemical analysis and remaining quantity Was also sealed into parcels. Likewise, 5 grams heroin from each packet recovered from Dikki of the car was separated and sealed into a sample parcel while remaining heroin was also sealed into a parcel and all the above parcels were taken into possession through recovery memo. (Exh.PA) attested by P.W.1 Muhammad Arif and Subedar Muhammad Siddique, ANF. We have not found any material contradiction or discrepancy in their statements regarding the above recoveries. There is absolutely nothing on record to show that these witnesses were having any malice or ulterior motive to falsely depose against the appellants. Even in cross-examination the appellants Qamar-ud-Din Butt and Muhammad Akram alias Major themselves have admitted that P.W.1 Muhammad Arif, P.W.2 Rao Zahid Mehmood and G.P.W. Subedar Muhammad Siddique were not having any enmity with them. The appellant Qamar-ud-Din Butt has stated that he was not having any enmity with even Major Shamshad Dar.
There is nothing on the record except the statement of Muhammad Akram alias Major which is merely a bull and cock story, that Major Shamshad Dar was inimical against him and he exercised his influence to falsely D implicate him in this case. Even if it is presumed that Major Shamshad Dar was having any business rivalry with Muhammad Akram al Major, he was not H having any ill-will against co-appellants Qamar-ud-Din Butt and Safdar Abbas. We are of the view that appellant Muhammad Akram alias Major has concocted a false story of his inimical relations with Major Shamshad Dar, just to set up a defence. Major Shamshad Dar was simply a member of the raiding party which was being supervised by a senior officer, namely iLieutent Colonel Muhammad Khalid, Joint Director ANF. It does not appeal to the reason that on the behest of Major Shamshad Dar, fake recovery of a huge quantity of heroin worth millions in the drug market, was planted against the appellants. It has been admitted by P.W.2 Rao Zahid Mehmood that at the time of raid some other persons were present there and they were not joined in the recovery proceedings. It is a matter of common knowledge that people avoid to become witnesses in such like heinous offences to save themselves from the wrath of hardened criminals. In this respect it has been observed by the apex Court in Muhammad Hanif v. The State 2003 SCM R 1237 that reluctance of general public to become witness in such like cases was a judicially recognized fact and there was no option left but to consider the statement of an official witness as no legal bar has been imposed in that regard. It has been further observed that police officials were equally good witnesses and could be relied upon if their testimony remained unshattered during cross- examination. In another case titled Naseer Ahmad v. The State 2004 SCM R 1361, it has been held that the police officials are as good witnesses 'as others, and their evidence on this score alone should not be discarded.
9. In view of the above, we hold that P.W.l Muhammad Arif Constable and P.W.2 Rao Zahid Mehmood Inspector are the natural and independent witnesses and they have proved the recovery of narcotics from the appellants Qamar-ud-Din Butt and Muhammad Akram alias Major beyond any shadow of doubt, and their evidence is of unimpeachable character.
10. Now we advert to the contention of learned counsel for the appellants Qamar- ud-Din Butt and Muhammad Akram alias Major that since 1 Kg. Heroin each has been recovered form them and only quantity sent to the Chemical Examiner for analysis may be taken into consideration against them, and as such offence under section 9-B Control of Narcotic Substances Act, 1997 is attracted against them. As discussed above, it is proved on record that 1 Kg. Heroin was recovered from the personal possession of these appellants each while 8 Kgs. Heroin was recovered from the Dikki of the car. They have admitted in their statements that they took the car from Faisalabad and left for Lahore along with their co-appellant Safdar Abbas driver of the vehicle. They have not taken any such plea that they simply travelled in the car and were not having any luggage. In the absence of any such plea, it can be safely held that they were having knowledge about the narcotics lying in the Dikki of the vehicle and the same was in their constructive possession. As such, they are liable for the whole quantity of narcotics recovered form their I personal possession as well as from the vehicle and offence under section 9-C, C.N.S.A., 1997 is attracted against them. It is also untenable that only the quantity of heroin sent to the Chemical Examiner may be taken into consideration against the appellants. The judgment cited by learned counsel for the appellants is not applicable in the present case. In Muhammad Hashim v. The State PLD 2004 SC 856, only 4 grams of Charas was taken as sample out of total of 228 rods and nothing was available, on record to show whether the sample for examination by the Chemical Examiner was taken out from each rod to ascertain that 288 rods were that of Charas or some other commodity having resemblance with the colour of Charas like oilcake (khal) etc. Therefore, it was presumed that sample was taken out only from one rod. In the present case, it has been categorically stated by the recovery witnesses that 5 grams heroin was separated from each packet recovered from the Dikki of the car and parcel of 40 grams was prepared, whereas sample parcels of 10 grams heroin separated from each packet recovered from the appellants Qamar-ud- Din Butt and Muhammad Akram alias Major were prepared. The contention of learned counsel for the appellants that shopper in which packets of heroin were contained, were not produced in evidence, number of vehicles were not mentioned in the complaint or identification marks were not recorded on different parcels, are of no significance and prosecution version cannot be dislodged on these grounds.
11. The case of appellant Safdar Abbas is, however, distinguishable from his coappellants. He is simply a driver of the vehicle hired from Malik Rent-A-Car Faisalabad. D.W.l Shahid son of Malik Qasim has supported his version and has stated that he was working as driver with him. On the relevant day appellant Qamar- ud-Din Butt hired the vehicle from him and the rent of Rs, 1000 out of which amount of Rs,400 was paid in advance and amount of Rs,600 was to be paid in the evening on their return from Lahore. Booking record of Malik Rent-A-Car (Exh.D) has also been produced by the appellant in his defence which bear the signature of Qamar-ud-Din Butt as customer. Any recovery of nlarcotics has not been effected from him. P.W.2 Rao Zahid Mehmood Inspector has admitted in cross-examination that he challaned Safdar Abbas on the basis of statement of his coaccused. Admittedly, the statement of the co-appellants against Safdar Abbas before police is of no evidentiary value. In all these facts and circumstances case of prosecution against Safdar Abbas is not free from doubt and it can be presumed that he was not having any knowledge that his coappellants were carrying narcotics in the shopper lying in the Dikki of the car.
12. As a sequel of above discussion, we dismiss Criminal Appeal No,334-J of ^ 2005 filed by Qamar- ud-Din Butt and Muhammad Akram alias Major. Criminal Appeal No, 1673 of 2005 filed by Safdar Abbas is, however, accepted and his conviction and sentence is set aside. He is L ordered to be released forthwith if not legally required in any other case.