' KHURSHID ANWAR BHINDER, J.---Muhammad Nadeem appellant was convicted under section 9(c) of the C.N.S.A, 1997 by the learned Additional Sessions Judge, Lahore vide judgment, dated 4-6- 2005, in case F.I.R. No, 43, dated 16-1-2001 registered by CIA Police Model Town, Lahore and sentenced to life imprisonment with fine of Rs,10 lac and in default whereof to further undergo three years S.I. With benefit of section 382-B, Cr.P.C.
2. Briefly the prosecution case is that on 16-1-2001 at 5-45 p.m. The accused Muhammad Nadeem during the Investigation of case F.I.R. No,42 of 2001 got recovered 90 kilograms of Charas from underneath a heap of crush stones lying in an under construction House No,10 Street No,10 of Yasrab Colony, Shadbagh, Lahore.
3. After completion of the investigation challan was submitted before the learned trial Court where the accused-appellant was charge sheeted to which he did not plead guilty and the prosecution in order to prove its case examined as many as seven witnesses. Habibullah HC P.W.1 deposed about safe custody of sample of Charas in the malkhana of the Police Station. Munir Ahmad constable P.W.2 transmitted the sealed parcels containing Charas to the office of Chemical Examiner. Faiz Rubbani S.-I. P.W.3 is the witness of recovery memo. Exh.PA. Malik Muhammad Aslam P.W.4 and Mazhar Iqbal A.S.-I. P.W.5 are also recovery witnesses of memo. Exh.P.A. Alam Sher S.-I./complainant and investigator of the case appeared as P.W.7 and reiterated the contents of the F.I.R. Whereas Farman Ali S.-I., P.W.6 recorded formal F.I.R. Exh.PB/1 on the basis of complaint Exh.P.B. The learned SPP after tendering in evidence report of the Chemical Examiner Exh.PE closed the prosecution evidence.
4. After conclusion of the prosecution evidence, the accused-appellant was examined under section 342, Cr.P.C. Wherein he denied all the allegations and in answer to question No,7, he replied as under:-- "The case is result of enmity with Mazhar Iqbal A.S.-I. Because one Tanveer Khakwani made a murderous assault upon Mazhar Iqbal A.S.-I. And Tanveer Khakwani was my friend and Mazhar Iqbal A.S.-I. Due to that grudge prepared false cases against me. It is also proper to mention here that Mazhar Iqbal A.S.-I. Is notorious police officer and have been dismissed twice from service due to relations with the under world and because of involvement in selling and purchasing narcotics and other police officials under the direction of Mazhar Iqbal A.S.-I. Have deposed against me falsely."
' In reply to question No,6 he further stated as under:-- "Yes, I have already stated the original facts of my arrest in case F.I.R. No,42 of 2001 that one senior Advocate namely Ch. Muhammad Siddique produced me before the police authorities in connection with some inquiry regarding some murder cases committed by Tanveer Khakwani PO and also the said Tanveer Khakwani is a accused of a F.I.R which was lodged by Mazhar Iqbal with the allegation that Tanveer Khakwani injured him with fire arms and at the time of occurrence I was present with Tanveer Khakwani and due to this grudge Mazhar Iqbal involved me in present false case. Although it was not present at the place of occurrence nor the house was owned by me or by my any relative. I and my family members are permanent residents of Sanda near Bund Road, Lahore. But Mazhar Iqbal A.S.-I. Who is notorious police officer and have been dismissed thrice from the service planted this false recovery upon me. I have nothing to do with this alleged recovery."
' He did not opt to appear as his own witness under section 340(2), Cr.P.C. But produced photo copy of F.I.R. No, 123 of 2001 Exh.D-2, copy of F.I.R. No, 1 of 1994, dated 3-1-1994 Exh.D-3, copy of F.I.R. No,211 of 2002 Exh.D-4 and copy of F.I.R. No,495 of 1999 Exh.D-5 and Ch. Muhammad Siddique, Advocate D.W.1. In his defence and also tendered his statement Exh.D.1 made by him before the Senior Special Judge, Anti-Corruption on 4-2-2002. The learned trial Court after conclusion of the trial convicted and sentenced the appellant as stated above against which he has filed the instant appeal (Criminal Appeal No,1342 of 2005).
5. We have heard the arguments advanced by both the learned counsel and have minutely perused the record. Admittedly, appellant is nominated in the F.I.R. With a specific role. As regards recovery of 90 kilograms of Charas from the appellant it has also been established that huge quantity of Charas was recovered on the pointation of the appellant who had concealed it in the under construction house of his brother.
6. Learned counsel of the appellant submits that recovery of charas from an open house is of no significance as everybody can have access to it, therefore, story narrated in the F.I.R. Is absolutely false. We have minutely considered the argument advanced by the learned counsel for the appellant and are of the view that admittedly the said under construction house belongs to the brother of the appellant and it is highly improbable, irrational and implausible to keep such an expensive commodity of 90 kilograms of Charas in an open under construction house. In fact the appellant's brother was putting up in that house and people generally at times shit to near completion house as it has been done so in the instant case. Appellant could not have concealed such a huge quantity of Charas of colossal value in an unguarded open house, therefore, we do not find any force in the argument advanced by the learned counsel for the appellant in this regard. Moreover, all the members of the raiding party liave fully endorsed the recovery proceedings as well as recovery of concealed Charas from the house of brother of the appellant.
Ninety kilograms of Charas is always concealed at a safe place and there could have been no other safe place for the appellant except his brother's house, therefore, he had all the reasons in the world to conceal Charas in his house. In this regard we are convinced that such a huge quantity of 90 kilograms of Charas cannot be foisted. We are, therefore, enlightened by the judgment delivered by the apex Court in the case of Khair Muhammad v. The State (2006 SCMR 299) wherein it has been held that huge quantity of narcotic cannot be foisted.
6(sic) As far as the argument advanced by the learned counsel for the appellant regarding the non-association of public witness is concerned, we observe that police witnesses are credible witnesses in narcotic cases, therefore, non-association of independent witnesses would not hamper the case as it has been held in the case of Buner Gul v. The State (1999 PCr.LJ 728) which says that application of section 103, Cr.P.C. Having been categorically excluded from section 25 of Control of Narcotic Substances Act, 1997, therefore, there was no need to associate independent witnesses. Even otherwise, people from the locality always refrain from coming forward to adduce evidence in narcotic cases. Non-citing of public witnesses is not fatal to the prosecution case as held in the case of Zulfiqar Ahmad v. The State 2006 SCMR 800 (Supreme Court of Pakistan).
7. Now the question arises as to whether huge quantity of Charas was foisted on the appellant at the instance of Mazhar Iqbal A.S.-I. Due to enmity. It was no doubt established on record that appellant did file a writ petition against the aforesaid Mazhar Iqbal A.S.-I prior to the occurrence who had furnished grudge against the appellant and in order to avenge his wrath, he could not have arranged such a huge quantity of Charas and had planted it on the appellant. Had it been a little quantity then certainly it would have been possible that it could be planted' on the appellant but ninety kilograms of Charas cannot be planted, therefore, we are persuaded that appellant led to the recovery of huge quantity of Charas concealed in the house of his brother and possibility of foisting Charas on him is not possible as per facts and circumstances of the case.
8. Learned counsel for the appellant had argued that the alleged recovery of Charas was effected at a place in Shadbagh whereas CIA Staff Model Town Lahore could not have come all the way from the Model Town to Shadbagh to nab the appellant as it was beyond its jurisdiction hence, entire story narrated in the F.I.R. Is false. In this context we may say that CIA Staff Model Town, Lahore is fully D empowered to conduct raid anywhere in the city and there is no bar of territorial jurisdiction to their action.
9. The samples collected by the police officials for onward transmission to the office of Chemical Examiner were exactly according to law as every sample was collected from a slab which was sent to the Chemical Examiner and whose report was in the positive, therefore, E procedure adopted by the police officials regarding the recovery of samples was also according to law and no irregularity has been committed by the police officials in this regard.
10. We are, therefore, convinced that the appellant was in possession of huge quantity of Charas and was apprehended red-handed by the police raiding party and all the recovery witnesses have fully corroborated the version of F.I.R., therefore, we are of the considered F view that the prosecution has successfully established its case against the appellant and he was rightly convicted by the learned trial Court. We, therefore, uphold the judgment of the learned trial Court and maintain the sentence awarded to the appellant.
11. For what has been discussed above, we find no force in this appeal which is hereby dismissed.
(Sd.)
(Khurshid Anwar Bhinder)
Judge ' S.ALI HASSAN RIZVI, J.---I have gone through the judgment very ably recorded by my learned brother Khurshid Anwar Bhinder, J. I entirely agree with the conclusion that the appeal be dismissed. Hpwever, keeping in view the defence version, with great humility and utmost respect, I would record my own reasons for dismissal of the appeal as under:--
1. The appellant in this case while under interrogation in F.I.R. No, 42 of 2001 had disclosed and had himself led to the recovery of 90 kilograms of Charas as stated in the complaint Exh.PB = F.I.R.
Exh.PB/1 .Accordingly the recovery was admissible under Article 40 of the Qanoon-e-Shahadat Order, 1984 and section 103, Cr.P.C. Would have no application. The complaint was scribed by Alam Sher S.-I. (P.W.7) at 5-45 p.m. At the scene of recovery of in Yasrab Colony Ilaqa Thana Shadbagh, Lahore. It was specifically mentioned in the complaint Exh.PB on the basis of which Exh.PB/1 was formally recorded; that the investigation was undertaken by the Investigating Officer with the permission of competent/senior officer (S.S.P.). The investigation steps taken by the Investigating Officer were, therefore, not hit by the law laid down in State v. Bashir and others (PLD 1997 SC 408) which while considering the provisions of section 156 Cr.P.C., had held that the CIA personnel were not authorized to take cognizance without the permission/direction of the S.H.O. Of the District concerned which in terms of section 551, Cr.P.C. Would be the S.S.P. No prejudice could be legitimately claimed by the appellant. It was also stated in the F.I.R. Itself that from all the packets of Charas weighing 90 K. Gs. In toto got recovered by the petitioner from an under-construction house belonging to his brother Muhammad Aslam, 10/10 grams Charas were separated as samples for sending the same to the chemical examiner. The complainant Alam Sher S.-I. While appearing as P.W.7 supported the contents of the F.I.R. He testified the recovery memo. Exh.PA., whereby recovered Charas was secured along with samples. He was subjected to a hard and lengthy cross-examination but he could not be shaken on any material question. He was corroborated by Faiz Rubbani S.-I. (P.W.3) who had testified the time, place and the manner of occurrence. He also testified the recovery memo. Exh.PA as prepared by Alam Sher S.-I.(P.W.7).
2. The appellant having himself led to the recovery of 90 K.Gs. Charas concealed by him underneath a heap of "Bajri" lying in the under-construction house belonging to his brother Muhammad Aslam. The keeping of Charas in a concealed manner was within his exclusive knowledge. Accordingly legal presumption in team of section 29 of Control of Narcotic Substances Act, 1997 was against him and it was -then for him to have proved to the contrary. The intent and object of C.N.S.A., 1997, inter alia, was to control the production, processing and trafficking of narcotics etc. This Act, being special law, the effective provisions thereof could not be defeated on technicalities. Applicability of section 103, Cr.P.C. Was excluded in cases of search vide section 25 of the C.N.S.A., 1997.
3. The appellant was required to establish that Charas as alleged by the prosecution was not recovered in consequence of his disclosure from a place which was within his exclusive knowledge or that substance so recovered was not Charas but some other commodity. Reference may be made to Muhammad Idrees v. State (PLD 2006 Lahore. 780). The report of the chemical examiner Exh.PD was positive. The appellant has failed to prove any enmity with Mazhar Iqbal P.W.4. There was no evidence to hold that he could unduly prevail upon the complainant/investigator Alam Sher P.W.7 and Faiz Rubbani S.-I./P.W.3 who were both senior in rank to him. Their veracity could not be doubted in the circumstances of the case.
4. Malik Muhammad Aslam, a person from public, while appearing as P.W.5 supported the complainant as to the date, time and place of the occurrence. He, however, tried to create doubt as to the presence of appellant Nadeem whom he was describing as a Pathan. He stated that Charas was not recovered from the accused person facing trial considering his conduct and at the request of learned S.P.P. He was declared hostile. During cross-examination by the learned S.P.P., he was suggested that he was suppressing the truth having been won over by the accused. A Court is empowered to record its findings even in the case of a hostile witness. After considering his statement observantly, I hold that he had testified the recovery memo. Exh.P.A. Before the police but when time came to appear in the witness box he tried to oblige the accused to avoid his reprisal.
He was, however, positive as to the date, time and place of occurrence.
5. Reluctance of people from becoming a witness against criminals is a judicially recognized fact.
The people avoid becoming witnesses on account of reprisal of the criminals.
6. Coming to the statement of Mazhar Iqbal A.S.-I. (P.W.4), it may be noted that he had corroborated the complainant Alam Sher S.-I. (P.W.7) in regard to date, time, place and manner of the occurrence. He was also subjected to a hard and incisive cross-examination. He admitted that he was dismissed from service and that Tanveer Khakwani had injured him with firearm and case F.I.R. No, 495(Exh.D.5) was registered against him (Tanveer Khakwani) on 26-11-1999 under section 324, P.P.C. On his complaint.
7. F.I.R. No, 211, dated 25-6-2002 (Exh.D.4) was registered at the instance of Anwar Jalil, Assistant Director ACE against Mazhar Iqbal (since promoted as S.-I.) and Imtiaz Ahmad Bhalli, Inspector S.H.O. (now DSP). However, both the police officers being in service, it was rightly claimed by the prosecution that no adverse inference could be drawn against the statement of Mazhar Iqbal S.-I.
In absence of any conviction.
8. Likewise, F.I.R. No,1, dated 3-1-1994 (Exh.D.3) was registered under section 161, P.P.C. Read with section 5 of the PCA, 1947 against Mazhar Iqbal A.S.-I. At the instance of one Nasir Mehmood Arain.
It was not shown as to what had happened finally in this case. Mere registration of a case was rightly claimed to have no adverse effect on either side.
9. Similarly F.I.R. No,123, dated 31-12-2001 (Exh.D.2) was registered against Mazhar Iqbal A.S.-I. (P.W.4) on the application of Parveen Nargis (mother-in-law of the appellant). The occurrence in this case had taken place on 16-1-2001. There is no reason to draw any adverse inference on the mere registration of this F.I.R.
10. Statement of Ch. Muhammad Siddique, Advocate (D.W.1) was of no much help to the defence.
His statement has been referred to with some details in para.12 of this judgment. Suffice it to say that he had rather abetted passing on Rs,1,00,000 to Mazhar Iqbal A.S.-I. As bribe. No capital could be legitimately claimed by the defence.
11. The F.I.R. Exh.D.2 was got registered against Mazhar Iqbal A.S.-I. With the Anti-Corruption Department at the instance of Mst. Parveen Nargis (mother-in-law of the appellant) on 3-12-2001 i,e, much after the present occurrence which took place on 16-1-2001. There was also no evidence to hold that at or before the time of occurrence, Mazhar Iqbal A.S.-I. Had any direct enmity or illwill against the present appellant.
12. The F.I.R. Exh.D.5 lodged by Mazhar Iqbal A.S.-1. On 26-11-1999 under section 324, P.P.C. When he was injured by firearm at the hand of Tanveer Khakwani in Ilaqa Thana Tibbi City, Lahore. Tanveer Khakwani was a proclaimed offender in 1999 in many cases. If the appellant had friendship with him, it would rather speak against his conduct. It was not the case of defence that Mazhar Iqbal A.S.-I. Had ever tried to frame Tanveer Khakwani against whom he had direct bitterness, in a false case. The defence version that Mazhar Iqbal A.S.-I. Had involved the appellant in a false case on account of his so-called friendship with Tanveer Khakwani is, repellant to common sense.
13. The provisions of sections 20, 21 and 22 of the Control of Narcotic Substances Act, 1997 were directory in nature and nonobservance thereof would hardly be a ground for holding trial/conviction as bad in law. I do not agree that warrant in terms of section 20 of the C.N.S.A., 1997 was a mandatory requirement in the present case before effecting search from the underneath a heap of "Bajri" in the under-construction house of Muhammad Aslam real brother of the appellant.
As already noted above in this judgment, where an accused himself leads to discovery of a fact in consequence of his disclosure made to the investigator, section 103, Cr.P.C. Would not be applicable and the recovery so made would be admissible under Article 40 of the Qanoon- eShahadat Order, 1984. Fida Muhammad v. State (2006 PCr.L.I 516) may be followed.
14. At the risk of repetition, it may be observed that application of section 103, Cr.P.C. Was excluded by section 25 of C.N.S.A., 1997. Evidence of prosecution witnesses was forthright, natural and inspired confidence. No or any animosity against the P.Ws./police officials before the occurrence had been successfully pointed out. The defence has also failed to point out any material error of law or misreading or non-reading of evidence in the judgment passed by the learned trial Court.
15. As a sequel of the above, there is no substance in this appeal which is accordingly dismissed maintaining the conviction and sentences recorded by the learned trial Court vide its judgment, dated 4-6-2005.