' NISAR MUHAMMAD SHAIKH, J.---By this 'common judgment we intend to decide two appeals, respectively filed by appellants Abdul Zahir alias Zahir Shah and Akbar Khan, as both these appeals have arisen out of one and same judgment dated 28-11-2008 passed by learned Judge, Special Court No,1 (C.N.S.) Karachi in Special Case No,44 of 2008 (Crime No,29 of 2008 of Police Station A.N.F-II, Karachi) whereby both appellants/accused were convicted under section 9(c) of Control of Narcotic Substances Act, 1997 to suffer R.I. For 7 years and pay fine of Rs,50,000 and in default of payment of fine, to suffer further S.I. For three months. The appellants/accused were given the benefit of section 382-B, Cr.P.C.
2. The prosecution case in brief is that on 4-3-2008 the Inspector Mir Badshah S.H.O. Of Police Station A.N.F Muhammad Ali Society, Karachi was present at his Police Station when he received spy information that inter-provincial smugglers of narcotics namely Zahir Shah, Asghar Khan and Shoukat Khan are going to deliver huge quantity of heroin to a customer through their worker Akbar Khan who is for its delivery near Caltex Petrol Pump, in front of old Sabzi Mandi. The Inspector/S.H.O. Mir Badshoh, after getting instructions from his superiors, left Police Station together with his subordinate staff as well as spy informant vide daily diary Entry No,16 at 8-45 p.m.
And reached at the pointed out place at about 9-00 p.m., where they saw a person holding one shopping bag of blue colour. He was apprehended on the pointation of spy informant. The people available there, were asked to be the witness of search but they did not agree, therefore, PC-Siraj Khan and PC-Muhammad Asif Mehnas were nominated as witnesses and in their presence the apprehended person, on inquiry disclosed his name as Akbar Khan son of Abdul Hakeem. On checking, the shopping bag recovered from him, was found containing heroin powder of brown colour. On interrogation, he disclosed the names of the owners of the heroin as Asghar Khan, Shoukat Khan and Zahir Shah. He also disclosed about the presence of these persons together with further heroin in the residential `dera' of Zahir Shah in Sultan Complex near New Qadri Bus-stand, infront of Shahzore Hotel. While taking immediate action, the complainant party took accused Akbar Khan and on his pointation reached at Flat No,120 of Sultan Complex and conducted raid when a person, who was present there, was apprehended. On inquiry made in presence of witnesses, he disclosed his name as Abdul Zahir alias Zahir Shah son of Ghazi Khan resident of Qeutta, at present resident of Flat No,120, Sultan Complex, old Sabzi Mandi, Karachi. On search of the room of apprehended accused, the complainant secured, further six packets/thelies of similar type, containing heroin of brown colour. Each packet was weighed and all seven packets were of 1 k.g. Each, total 7 k.Gs. Out of 7 packets, 5 grams heroin powder from each packet were separated as sample for chemical examination. The samples as well as the case property were sealed respectively. Thus, both accused namely Akbar Khan and Abdul Zahir alias Zahir Shah were arrested and such mashirnama of arrest and recovery was prepared at the spot in presence of witnesses. Thereafter, all of them reached at the Police Station where such F.I.R. Bearing No,29 of 2008 was registered at 11-00 p.m by the complainant Inspector Mir Badshah against the arrested accused Akbar Khan and Abdul Zahir alias Zahir Shah as well as un-arrested accused Asghar Khan and Shoukat Khan for an offence under section 9(c) C.N.S Act, 1997.
3. On completion of investigation, the challan was submitted on 24-3-2008 against arrested accused, showing the remaining accused Ashgar Khan and Shoukat Khan as absconders. The trial Court then framed the charge on 5-6-2008 as Exh.3 against accused Akbar Khan and Abdul Zahir alias Zahir Shah who pleaded not guilty vide their plea recorded at Exhs. 4 and 5. Thereafter, the absconding accused Shoukat Khan was arrested on 19-8-2009. Such supplementary challan was also submitted on 11-10-7008.
' The prosecution then examined P. W.1 PC Asif Ali at Exh.7. P.W.7 Inspector Mir Badshah at Exh.8, who produced mashirnama of arrest and recovery as P.W. 8-A, F.I.R. No,29 of 2008 as Exh.8-B and Chemical Examiner's Report as Exh.8-C, P.W.3 SIP Asif Ali at Exh.9, who produced mashirnama of arrest of absconding accused Shoukat Ali Shah as Exh.9-A, P.W.4 PC Muhammad Haneef (on the same point of arrest of Shoukat Ali) at Exh.10 and P.W.5 PC Siraj Khan at Exh.11. After the side of prosecution was closed, the statements under section 342, Cr.P.C. Of the accused Akbar Khan, Abdul Zahir alias Zahir Shah and Shoukat Ali Shah were recorded at Exhs.13, 14 and 15 respectively.
Thereafter, statement on oath under section 340(2) of the accused Zahir Shah was recorded at Exh.16 and he also examined his defence witnesses namely Saeed Muhammad and Abdul Hakeem at Exhs.17 and 18.
4. After hearing the parties, learned trial Court found the accused Akbar Khan and Abdul Zahir alias Zahir Shah guilty of the charge and accordingly they were convicted and sentenced as mentioned above, while the accused Shoukat Ali Shah was not proved guilty, therefore, he was acquitted by the trial Court under the same judgment dated 20-11-2008 which has been impugned by the convicted accused persons
5. We have heard learned counsel for the appellants/accused, learned Special Prosecutors A.N.F for the State/respondent and also perused the material available on record.
6. It is contended by Mr.A.Q. Halepota, learned counsel for the appellant Abdul Zahir alias Zahir Shah that since the alleged recovery of heroin powder was neither effected from the physical possession of the appellant nor on his pointation and he had also no concern with the flat in question therefore, he cannot be connected with the alleged crime as he has been implicated in this case falsely and recovery of narcotics has been foisted upon him. He further contended that even otherwise, there is no proof that the appellant was the owner or tenant of the flat in question nor any search warrants were obtained to conduct raid in the flat in question therefore the appellant could not be convicted by the trial Court specially when there was no independent or private mashir to attest the alleged recoveries and since both recovery witnesses were the subordinates of the complainant therefore, no reliance could be placed upon their evidence. He also contended that there are material contradictions in the evidence of the complainant and his witnesses which create doubt in connection with the alleged samples as well as case property of the alleged heroin. He also argued that the trial of the case was commenced on the charge Exh.6 but no plea of any accused was recorded by the trial Court on such charge and therefore, the entire proceedings stand vitiated and such impugned judgment is liable to be set aside. In support of his contentions learned counsel for the appellant also placed his reliance on the cases reported as Tila Muhammad v. The State (2003 PCr.LJ 1379), Sana Gul v. The State (2004 MLD 290), Rais Khan v. The State (2005 PCr.LJ 76), Mst. Jeeial and another v. The State (2005 MLD 1261) and Shafiullah v.
The State (2007 YLR 3087).
7. On the other hand Mr. Ashfaq Hussain Rizvi learned Special Prosecutor A.N.F. Contended that there was no material contradiction in the evidence adduced by the prosecution and as per the case of Ejaz Mahmood v. The State reported as PLD 1993 FSC 25, which has been discussed by the trial Court in the impugned judgment: such type of contradictions as pointed out by defence counsel, do not carry any weight so as to create doubt in the prosecution case which is however proved by the evidence of complainant as well as two witnesses of recovery, corroborated by the relevant documents which are further supported by the positive report of the chemical examiner.
He therefore, contended that the appeal of the appellant Abdul Zahir alias Zahir Shah is liable to be dismissed.
8. Mr. Muhammad Shafi Khan, learned counsel for the appellant Akbar Khan, contended that it is an admitted fact that no mashirnama of arrest of Akbar Khan and recovery of alleged heroin from his possession was prepared at the spot and such mashrnama is said to have been prepared after the arrest of accused Abdul Zahir alias Zahir Shah and recovery of heroin allegedly effected from him therefore, such single mashirnoma can not connect two accused persons with the alleged crime of two recoveries, He also contended that even otherwise, there was no witness from the alleged place of arrest and recovery therefore, the appellant Akbar Khan is not proved to be guilty of offence and as such he is liable to be acquitted as he is innocent.
9. Mr. Muhammad Ali Waris Lari learned Special Prosecutor, while opposing the above contentions, submitted that the case of prosecution stood proved against the accused therefore, he was rightly convicted by the trial Court.
10. We have considered the above submissions and perused the relevant record which, of course, reveals that the evidence of the complainant Mir Badshah Inspector/S.H.O., is corroborated by the evidence of both recovery witnesses namely P.C. Asif Ali and PC Sirai Khan whose evidence also gets support from the very F.I.R and mashirnama of arrest and recovery as well as report of Chemical Analyser which is also in positive. No doubt there are some discrepancies and contradictions appearing in the evidence of these A P. Ws. But the same do not appear to be of such nature to vitiate the trial or create the doubt in the prosecution case as the evidence adduced by the prosecution is consistent on the material particulars and inspires confidence.
11. Whereas the defence of accused that they have been falsely implicated in this case is not substantiated by relevant evidence as a huge quantity of heroin could not be planted upon the accused in absence of any I enmity or dispute. The accused Akbar Khan during cross-examination of the complainant had suggested that he (accused) was arrested when he was sitting with one Matloob Khan but, during his statement under section 342, Cr.P.C. The accused Akbar Khan stated that he was arrested from his residence. He further stated that the P.Ws were interested official witnesses of A. N.F and that they deposed against him falsely. But, he has nowhere shown any reason for his false implication. Whereas accused Abdul Zahir alias Zahir Shah had suggested the complainant during his cross-examination that he (accused) is a bus driver and he used to drive his bus from Karachi to Quetta. But in his statement on oath recorded under section 340 (2) Cr.P.C.
This accused Abdul Zahir alias Zahir Shah deposed very contrary, saying that he is a driver by profession and used to run Toyota Corolla car from Quetta to Karachi. Both these versions are such that the one is belied by itself, through the other. Moreover, this accused Zahir Shah claimed that he was falsely implicated by the complainant party as he had refused to act for them as spy informant. This afterthought plea is also not corroborated by the two witnesses examined by him in his defence. D.W Saeed Muhammad falsifying the statement of accused Abdul Zahir alias Zahir Shah that he is owner of Toyota Corolla Car, also deposed that such car was owned by Company of Qadri Coach. Whereas the accused's second witness namely Abdul Hakeem deposed that he was a Chowkidar in Sultan Complex and there was no Flat No,120 and the accused Abdul Zahir alias Zahir shah was not residing in any flat of Sultan Complex. But in his cross-examination, this defence witness deposed that he has given the evidence in this case at the instance of owner of the Qadri Coach and that he was given the duty of Chowkidar at the request of owner of Qadri Coach. He further deposed that one Haji Juma Khan is the President of Union of Sultan Complex. But he, on a question, replied during his cross that he does not know about the flat number in which the said President was residing in Sultan Complex. He also admitted to have no document to show that he is employee in the Sultan Complex. Even otherwise, alleged defence plea of the accused Abdul Zahir alias Zahir Shah, that he was falsely implicated in this case when he refused to act as spy informant, is not plausible in circumstances of this case specially when the huge quantity of heroin is involved in this case which can not be foisted upon him in such case. In this connection it is held in the case of Abdul Rasheed v. The State (2009 SCMR 306), that a large quantity of heroin could not be thrust upon the accused in absence of any tangible and concrete enmity which had not been proved by the defence, therefore, there is no such proof brought on record by the accused in support of his aliened defence which, from the face of it, seems to be an afterthought.
12. On the point that the heroin in question was not recovered from physical possession of the appellant Zahir Shah and the flat in question was allegedly belonging to three accused, learned counsel for the appellant contended that in such a situation the appellant Zahir Shah alone could not be presumed guilty in view of the authorities namely 2003 F'Cr.LJ 1379 and 2004 MLD 290. It appears that in the case of Sana Gul v. The State reported as 2004 MLD 290 it was an admitted fact that the place of recovery was joint one, belonging to three brothers of the accused therefore, no one could he held liable for the contraband secured from such place. But here, in the instant case, the flat in question was allegedly used by accused Abdul Zahir alias Zahir Shah as his residential 'dera' as per mashirnama as well as F.I.R. And he alone was also found to be the occupant of such place from where the heroin was also secured by the complainant in presence of two witnesses.
Likewise in the case of Tila Muhammad v. The State (2003 PCr.LJ 1379) three persons including the accused were found present at the place of recovery of the narcotics therefore, none could be found guilty of the charge, whereas in the instant case only the appellant Abdul Zahir alias Zahir Shah was found present at the place of recovery, from where he alone was arrested and recovery of heroin was also effected from such place and there is no explanation from his side as to how he was occupying such place.
13. Apart from the above, learned counsel for the appellant Abdul Zahir alias Zahir Shah relying upon case reported in 2005 PCr.LJ 76 also contended that no search warrant was obtained to conduct the raid in the flat in question nor such intimation was sent or mentioned in the mashirnama or F.I.R. Therefore, mandatory, provisions of narcotics laws were violated which rendered the alleged recovery illegal. But, in this connection, we find that the provisions of sections 20, 21 and 22 of Control of Narcotic Substances Act, 1997 are since directory in nature, therefore, noncompliance thereof would not be a ground for holding the trial of the case to be bad in law, as is held in the case of Zafar v. The State (2008 SCMR 1254). It is further held in the case of Muhammad Akram v. The State (2007 SCMR 1671) that requirement to obtain search warrant could be dispensed with in cases where a quick action was required to be taken and it would be difficult to obtain search warrant where due to paucity of time, apprehension of narcotics being removed or culprits having chance to escape, were eminent. Accordingly, in the instant case, the complainant party just after the interrogation of accused Akbar Khan and on his disclosure, immediately rushed to the dera/flat of accused Abdul Zahir alias Zahir Shah and on the pointation of accused Akbar Khan the recovery of heroin was effected from the room of such flat which was found in occupation of accused Abdul Zahir alias Zahir Shah at relevant time. In such circumstances, the technicalities could not be pressed into so as to reject the prosecution case outright as the approach of the Courts in such like cases is required to be dynamic.
14. Next contention of learned counsel for the accused that the trial of the case stood vitiated when the plea of the accused persons was not recorded by the trial Court in respect of the charge against them. In this regard the R & Ps of the case reveal that the charge was duly framed on 5-6- 2008 as Exh.3 against accused Akbar Khan and Abdul Zahir alias Zahir Shah when they pleaded not guilty at Exhs.4 and 5 respectively but subsequently on 19-8-2008 the absconding accused Shoukat Khan was arrested and then amended charge lying as Exh.6, appears to have had been prepared but the same was never framed and the trial of the case continued and finally the impugned judgment was passed but no such point was raised at any stage of the case before the trial Court and even otherwise it did not prejudice the case of newly arrested accused Shoukat Khan as he was ultimately acquitted. While the present accused Akbar Khan and Abdul Zahir alias Zahir Shah were convicted of the charge which was duly framed against them at Exh.3 and the same was never questioned by them.
15. No doubt, the Mashirnama of arrest and recovery was not prepared at the place from where the accused Akbar Khan was arrested and recovery was effected from him and in this connection, the trial Court has very clearly explained the position in para No,20 of judgment which indicates that it was all of sudden when the complainant party after disclosure by accused Akbar Khan on his interrogation, immediately rushed to the place of arrest of accused Abdul Zahir alias Zahir Shah where the remaining heroin powder was recovered. Such factum is also corroborated by the evidence adduced by the prosecution and same could not be shaken by the accused during lengthy cross-examination of the P.Ws. Thus, the plea taken by the accused regarding their false implication in the case, appears to be farfetched and there is no illegality or infirmity in the impugned judgment to warrant interference by this Court on account of contradictions of trivial nature as pointed out by the learned defence counsel. Such discrepancies and contradictions are bound to occur when the evidence of the P.Ws. Is recorded after lapse of some time, and the same cannot strike down the prosecution story from its very foundation, merely on few inconsistencies and contradictions, specially when the defence plea was also found to be improbable, implausible and unbelievable. So far as the contention, that the recovery witnesses belong to A.N.F or police department, is concerned the provisions of section 103 Cr.P.C. Are excluded by virtue of section 25 of C.N.S Act, 1997 and therefore such contention is not forceful as the police employees or ANF employees were also competent witnesses like any other and their testimony could not be discarded merely on the ground that they are police employees as this has already been held in various authorities such as 2008 SCMR Pages 742, 1254, 1414 and 1616 and 2009 SCMR 306.
16. For the aforesaid reasons, we find that the evidence adduced during trial of the case was properly appreciated by the learned trial Court and the same does not warrant any interference by this Court. Thus on the basis of material brought on record of the trial Court the appellants were rightly found guilty by the trial Court. Accordingly the conviction and sentence awarded to the appellant Abdul Zahir alias Zahir Shah is hereby maintained and his Appeal No,240 of 2008 is therefore, dismissed. However, in view of the facts and circumstances of this case, appellant Akbar Khan was only liable to the quantity of contraband secured from his possession and therefore, his conviction under section 9(c) is converted into 9(b) of Control of Narcotic Substances Act, 1997 and accordingly, his sentence is reduced from 7 years' R.I. To 3 years' R.I. And his fine is also reduced from Rs,50,000 to Rs,20,000 and in default of its payment, he will suffer S.I. For two months, with benefit of section 382-B, Cr.P.C. Consequently, with such modification, the Appeal No,8 of 2009 of appellant Akbar Khan is also dismissed.