1. ' SYED MEHMOOD ALAM RIZVI, J.--- Appellant Suhail Khan alias Saleh Muhammad through this appeal has challenged the judgment, dated 15-11-2005 whereby the appellant was convicted and sentenced for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred to as the Act) to imprisonment for life and fine of Rs,2,00,000 or in case of default in payment of fine, to suffer two years imprisonment more. The appellant was extended benefit of section 382-B, Cr.P.C. The co-accused Moosa was acquitted by the trial Court.
2. ' Precisely the facts of the case are that on 11-2-2002 a police party of Anti-Narcotics Force, Clifton, Karachi headed by Inspector Ghulam Abbas was patrolling in connection with control and prevention of narcotics crimes and at about 2150 hours they received spy information that one person was standing at bus stop of Denso Hall along with a big quantity of narcotics and waiting for someone. The said police party reached the pointed place and on pointation of the spy informer the said person standing there was apprehended and persons available at the stop were asked to act as witness, but they declined. Therefore, P.C. Muhammad Hassan and H.C. Farid Abbasi were taken as witnesses/ Mashirs. On inquiry, the said person disclosed his name as Sohail Khan alias Saleh. As per F.I.R. The accused was carrying one cloth bag (Thella) in his right hand, and on its search, it was found to contain four plastic packets and one coloured shopping bag. As per the F.I.R., the first four packets, when checked, were found containing heroin powder, and two paper coloured envelopes were recovered from the blue coloured shopping bag from which Charas was recovered. The weight of three of heroin packets came to 1 Kg. Each, and the 4th packet weighed 640 grams, totalling 3 Kgs. And 640 grams. Ten grams from each of the 4 packets were separately taken as samples and were separately sealed, while the 2 coloured envelops containing each Charas were weighed separately and found 1 Kg. Each, totalling 2 Kgs. Out of these 2 samples each of 10 grams, were taken out and were separately sealed, and the accused was accordingly put under arrest. During investigation the accused disclosed that he used to bring the narcotics to Karachi and used to sell it with the help of his associates Gulab Khan and Sher Zaman and that they also used to deal with local customers,. And that the co-accused Moosa Khan brought the contraband from Peshawar/Tribal Area. As per the F.I.R., since the accused committed offences falling under sections 6 to 9, 12 to 19 and 37 of C.N.S. Act, 1997, therefore, F.I.R. Was registered against him, as Crime No,6 of 2002.
3. ' Initially on the statement of the appellant two co-accused Sher Zaman and Moosa were also inducted but co-accused Sher Zaman had been acquitted under section 265-K, Cr.P.C. Vide order, dated 17-1-2005. The charge was framed against the appellant and co-accused Moosa to which both of them pleaded not guilty and thereafter, prosecution examined P.W.1 H.C. Muhammad Hassan, the Mashir of arrest and recovery, P.W.2 S.-I. Ghulam Abbas, the complainant/ Investigating Officer who produced the F.I.R., Chemical report, and memo. Of arrest of accused Moosa and thereafter, the prosecution closed its side and finally the accused recorded his statement under section 342, Cr.P.C. And denied the allegations and pleaded that the contraband had been foisted upon him which was said to have been recovered from one lady who had been released later on. The accused was arrested from his house by A.N.F. Personnel. Neither did the appellant depose on oath nor produced any witness in his defence. After conclusion of the trial, learned Special Judge convicted the appellant viz. Sentence referred to above while he acquitted the co-accused Moosa.
4. ' We have heard Mr. Syed Ahmed Ali Shah learned counsel for appellant and Mr. Syed Ashfaq Hussain, learned Special Prosecutor on behalf of the respondent and with their assistance we have perused the record and the evidence recorded during the trial.
5. ' The contention of the learned counsel for the appellant precisely are that the whole case is fabricated and false and there was clear cut overwriting- in the columns of the F.I.R. i.e. Time and departure of leaving the police station, and time of lodging the report. He further contended that the complainant was interested, as he himself was the complainant and also conducted the investigation and the Mashirs were his subordinates and deliberately no private person was made as witness of the recovery and arrest which also makes the case highly doubtful. He also contended that P.W.1 H.C. Muhammad. Hassan was a pocket witness and had been Mashir in many cases of the same complainant/ Investigating Officer hence he is not a credible witness.
6. ' He further argued that the weight of samples of heroin is in contradiction with the chemical report.
7. As per prosecution story four samples of 10 grams each containing heroin powder were prepared and sent to Chemical Analyzer while the report shows that the weight of each sample was more than 18 grams each. He further contended that charge was framed against both the accused but appellant had been convicted while the co-accused was acquitted which is also illegal. He further contended that P.W.1 Muhammad Hassan stated that they left police station at 9 p.m. (2100 hours) and reached at the spot at 2150 hours _ while the P.W.2 is the complainant/Investigating Officer stated that he left the police station for patrolling at 2-30 p.m. He further contended that as per memo. 2 rings were shown recovered from the personal search of the appellant and P.W. Stated that only one ring was secured in his possession and further contraband was lying in a blue shopping bag but the same was not produced in Court.
8. ' On the other hand Mr. Syed Ashfaq Hussain Rizvi learned Special Prosecutor, A.N.F. Contended that both the witnesses have corroborated each other and the prosecution has proved its case beyond any reasonable doubt.
9. ' We have given due consideration to the arguments of the learned Advocates and gone through the relevant provisions of law. The learned Advocate for the appellant contended that there is overwriting in the columns of F.I.R. Regarding the time and departure from the police station and time of report etc., and also contradictions between P.W.1 and P.W.2 regarding the departure from police station though P.W.1 has stated all the details of reaching at the place of incident, recovery, arrest and to the lodging of the F.I.R. P.W.2 also corroborated but actually in line 3 of his examination-in-chief, time of departure is mentioned as "2-30 p.m.", which may be a typographical error because in the cross-examination the P.W.2 has verified all the above alleged discrepancies and clearly stated as under:- "We had returned to the Thana at 11-30 p.m. Immediately after arriving at the Thana I have done further Karwai in connection with this crime."
10. ' He further replied in cross-examination as under:-- "It is incorrect to say that time of departure from Thana in fact was 2350 hours but the same has been shown as 2100 hours by way of overwriting and that the time of report was 2140 hours but it has been shown as 2330 by way of overwriting and that it is not correct to say that the time 2150 hours given in the line 3 of F.I.R. Was also in fact 2300 hours but is shown as 2150 by way of overwriting."
11. So it clearly reflects that no contradiction has been made and both the witnesses have supported each other. That regarding complainant being an Investigating Officer, it is well-settled law that in such circumstances, the complainant can investigate the case as held in PLD 997 SC 40. But even then the practice of complainant being also an Investigating Officer was increasing day by day, hence this Court vide its judgment Taj Wali and 6 others v. The State reported in PLD 2005 Kar. 128 (D.B.) (my brother Mr. Justice Rahmat Hussain Jafferi was the author of the judgment) held as under:-- "para.27. The practice of complainant being also an Investigating Officer is increasing day by day, which should be stopped immediately. The investigation should be conducted by entrusting the same to any other police official preferably to superior officer to that of the designation of the complainant. In this way, a check can be placed on manipulation of the evidence by the complainant against an innocent person, which is very essential in the present day's time, when we receive complaints of false involvement of the accused persons due to some personal animosity with the police or releasing the real culprits because of various reasons. Thus, it is high time that a check should be placed on the activities of the police officials who are themselves becoming complainants, witnesses and Investigating Officers. Under these circumstances we direct the Director General ANF, I.G. Police, Secretary Excise and Taxation and other concerned officers of other agencies who are involved in the investigation of those types of cases to issue a direction to their subordinates who are detecting the cases that they should not act as Investigating Officers and after detecting the cases, the investigation of the cases should be entrusted to a superior officer of the complainant. In this way the grievance of the accused persons would be redressed as arguments are being advanced before us that had the investigation been conducted by any other superior police official then the true facts could have been brought on the record and the false involvement of the accused persons could have been checked at the very initial stage of investigation. This will also ensure fairplay between the parties."
12. That section 103, Cr.P.C. Is not applicable in C.N.S. Act, 1997 and there is no compulsion upon the Investigating Officer to arrange the private witnesses, as held in Muhammad v. The State 2003 SCM R 1017 and Muhammad Hanif v. The State 2003 SCM R 1237. Even otherwise, the complainant made efforts to collect private persons but as no witness came forward there was no other option but to make police officials as Mashirs. The police witnesses are as good as private witnesses unless the defence proves that the said police official had a bias or enmity with the accused. In this case, it is, not proved as such.
13. ' That regarding the contradiction of recovery of rings, suffice to say that it was not the case property, and in respect of the non-production of the blue coloured bag in Court that would also not help the appellant as the same was not the case property. In fact, the case property was lying in the envelopes which were duly seized, sealed and produced in Court. That regarding the same handwriting on the parcels and mentioning of the F.I.R. Number, it is obvious that on every case property the Investigating Officer has to write the crime number for its identification as it has to be placed in the Malkhana.
14. That regarding the contradiction in evidence of recovery and the chemical report, it has been observed that actually the Chemical Analyzer's report consisting in two parts i.e., four samples containing E heroin powder and two of Charas, and the glaring contradictions are in the weight of heroin samples, as in evidence of recovery the weight of all four samples were shown as 10 grams each, while the report shows almost double i.e., more than 18 grams of each sample, hence not only the entire weight of heroin but the recovery of heroin powder is also doubtful. And by virtue of section 36(2) of the C.N.S. Act, 1997 the Court has to rely the Government Analyst Report and in the above case the oral evidence is contradictory to the chemical report. For the ready reference section 36(2) of the Control of Narcotic Substances Act, 1997 is reported as under:--
36. Reports of Government Analysts.--- (1) ....................................
(2) Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal .Proof and such evidence shall, unless rebutted, be conclusive."
15. Hence the charge against the appellant regarding the recovery of heroin powder is not proved. But that the second phase of the report regarding the weight of samples of Charas is positive and further corroborated with the oral evidence, hence the prosecution has proved its case at least as regard to recovery of Charas.
16. ' The learned counsel for the appellant has requested at this stage that he is not pressing the appeal on merits but conviction of life imprisonment with fine of Rs,2,00,000 in possession of 2 Kgs.
17. Charas is very harsh and the same may be altered to imprisonment already undergone as the appellant is in custody since 11-2-2002. The learned S.P.P. Opposed the alternate prayer of the counsel of the appellant and has contended that the prosecution has proved its case beyond any reasonable doubt, and as per section 9(c) of the C.N.S. Act, 1997, the punishment of life imprisonment was sufficient, and in such cases there should be no leniency.
18. That keeping in view of the above facts and circumstances the punishment and sentenced regarding the recovery of heroin powder is set aside while the punishment and sentence of Charas is upheld. But keeping in view of the weight of Charas the punishment and sentence from imprisonment for life is altered to already undergone. Hence by short order, dated 18-10-2007 we had dismissed the appeal but altered the sentence as already undergone.
19. ' Above are the reasons for our short order, dated 18-10-2007 by which we had dismissed the appeal with the above modification.