' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---This appeal by leave of/the court has been directed against the judgment dated 24-8-2010 passed by the Lahore High Court, Lahore, whereby Criminal Appeal filed by the appellant was dismissed.
2. Precisely stating facts of the case as per complaint Exh.PA are that on 22-10-2005 at 3-30 a.m.
Qasim Abbas S.-I. (P.W.2) along with the members of his team namely Aamir S.-I. (P.W.3), Zulfiqar, Babar Hussain, Tanvir Khan, Muhammad Ali and Muhammad Ayub consta les was present at check-post Rehman Villas in connection with patio ling duty, when he got a spy information that appellant Imran Ali along ith his co-accused was dealing in narcotics (poast) and narcotics was kept by him in a rented shop, situated in Rana Ameen Market, which would. Be shifted to an unknown place after "Sehri". On this Qasim Abbas, complainant reached at the above said place along with police officials as well as spy agent. At about 4-30 a.m. a person riding on a Honda 70 motorcycle bearing No,968/LRV reached there, opened the door of said shop and entered inside it.
Nayyar Azam, Incharge was called on phone, who reached there and raid was conducted in his presence. The accused was overpowered and poast in 112 sacks of nylon and 16 sacks of patson was found in the shop, which weighed 97 "maunds". Out of the recovered narcotic, 500 grams was separated as sample for sending the same to the office of the Chemical Examiner. The sample and recovered poast was taken into possession and recovery memo (Exh.PB) was prepared in the presence of the witnesses. Initially the case was investigated by Muhammad Ansar S.-I. (P.W.5) but the same was transferred to Ahmed Saleem, DSP/Organized Crime on 13-12-2005 and then to Babar Sarfaraz Alpha, SP/Investigation. According to last investigation, Imran Ali, Zaheer Ahmed, Mohsin Ali and Sheikh bdul Waleed were found involved in the case. After submission of the c Ilan, the appellant and other co-accused were formally charge sheeted vide order dated 11-11-2006, to which they pleaded not guilty. The prosecution produced as many as 5 witnesses., whereas gav up remaining three witnesses. The appellant/accused in his statetment recorded under section 342, Cr.P.C. In response to the question whir this case was registered against him and why the P.Ws.
Deposed against ,him, made the following deposition:-- "P.Ws. Are interested, inimical and departmentally related inter se. I was taken into custody illegally from my house where the complainant along with other P. Ws. Illegally trespassed and maltreated inhabitants of house including my mother and sisters. Upon my intervention they got furious and severely tortured me as this occurrence has also been seen by all the inhabitants of locality. In order to shield their crime and illegal activities. I have been booked in this false and fabricated case. All the inhabitants of area had joined the investigation of this case. They had sworn their affidavits as well before the Investigating Officers to the fact narrated above but inspite of that I have been challanned in this case and mala fidely."
' However, he did not opt to give statement on oath under section 340(2), Cr.P.C. He produced Mst.
Safia Akram, mother as D.W.1, who deposed that on 22-10-2005 during night hours at about 2-00 a.m. Police officials entered illegally into her residence and insulted her, her son/appellant could not tolerate and scuffled with the police, therefore, he was falsely involved in the case. The matter was also reported to the police and on the order of learned Additional Sessions Judge, Lahore, F.I.R.
Was got registered against Qasim Abbas, S.-I. Mirza Asif Baig, neighbourer also appeared as D.W.2 and supported the version of appellant.
3. Upon conclusion of the trial, learned trial Court convicted the appellant under section 9(c) of Control of Narcotic Substance Act, 1997 and sentenced him to imprisonment for life with direction to pay Rs,10,00,000 as fine or in default whereof to further undergo SI for two years. Benefit of section 382-B, Cr.P.C. Was also extended to him. Feeling aggrieved from his conviction/sentence, the appellant challenged the same before the learned High Court by means of criminal appeal, which was dismissed vide impugned judgment. Hence this appeal with leave of the Court.
4. Learned counsel for the appellant at the very outset submitted that the substance allegedly recovered from the appellant was poppy straw, which is used for fodder of animals purposes, therefore, it should not be considered as narcotics substance, as such, even if the appellant is considered to be involved in that business, it does not constitute a crime. With regard to merits of the case, learned counsel has contended that the case against the appellant was false and baseless as he was apprehended from his house and booked in the instant case. This fact has also been supported with the contents of F.I.R. Registered against Qasim Abbas 5.-I. On the application of appellant's mother and the statements of D.Ws. On the application moved by the mother of appellant, the case was reinvestigated and it was proved that Qasim Abbas S.-I. And Ansar Ali S.-I.
Did not conduct investigation properly as such departmental proceedings were conducted against them and penalty of withholding of promotion for one year was imposed against both of them.
There are material contradictions in the statements of prosecution witnesses and on the basis of same set of evidence, two co-accused have been acquitted while extending benefit of doubt to them. As per F.I.R. The appellant came to the shop from where the narcotics were recovered, on a motorcycle but the same was not taken into possession by the police officials, which negates the prosecution version. The place of recovery (shop) was neither owned nor was in possession of the appellant and he had no connection with the same. The narcotics were recovered from 128 bags but samples were not recovered from each bag separately. He\ has made reference to the case of Muhammad Hashim v. The State (PLD 2004 SC 856).
5. On the other hand Mr. Muhammad Irfan Malik, DPG has submitted that as per section 2(t) of C.N.S.A., 1997 the poppy straw has been included in the definition of opium; which is a narcotic substance. He has supported the impugned judgment on the ground that the prosecution proved its case against the appellant beyond any shadow of doubt by producing cogent and confidence inspiring evidence of the recovery of narcotics which was fully corroborated by the report of Chemical Examiner. According to him the investigation of case was transferred to the DSP/Organized Crime and then SP, Investigation who found the appellant to be involved in the commission of crime.
6. We have heard the learned counsel for the parfies and have gone through the impugned judgment as well as the record of the case.
7. First of all we would dilate upon the question as to whether or not the poppy straw has been included in the definition of opium. Although this question has not been seriously raised by any of the counsel, however, for convenience it is to be noted that this question has been dealt with in the case of Khair-ul-Rehman v. The State (PLD 2005 Lahore 440) wherein it was argued that some portions of the poppy straw have to be excluded as these are not narcotics substance at all. In order to avoid possibility of any contradictory views by different Benches of High Court the matter was placed before the Hon'ble Chief Justice for constituting a larger Bench for reviewing the cases and for an authoritative judgment on the subject for future guidance and in the public interest. In pursuance whereof the Full Bench was constituted by the Chief Justice of Lahore High Court. The court by a majority of two against one decided the reference. In the majority judgment, delivered by Hon'ble Mr. Justice Asif Saeed Khan Khosa (now Judge of this Court), following questions were formulated:--
(i) What exactly is that which is called 'Poast'?
(ii) Whether Poast is a narcotic substance within the purview of the Control of Narcotic Substances Act, 1997 or not?
(iii) Whether ascertainment by a Chemical Examiner regarding, the actual quantity of morphine in the recovered substance is necessary in a case of recovery of Poast?
' With regard to the first question, the Court held that the alkaloids can be extracted even from a mature and dry plant of poppy or poppy straw whether it is in its natural shape or is in a crushed form. However, the seeds contained in a capsule of poppy are free from morphine. After its mowing every part of a poppy plant, including its capsule/Poast/Doda but excluding the seeds, is generally called poppy straw and thus, every Poast/Doda is a part of a poppy straw but all poppy straw may not necessarily be Poast/Doda because poppy straw can be any other part of the mowed poppy plant as well, excluding the seeds.
' On the second question, the Court held that the legislature appears to be quite conscious of the definition of 'poppy straw' contained in section 2(w) read with section 2(v) but for the purposes of defining 'opium' the legislature wanted to go beyond the scope of the provisions of section 2(w) and section 2(v). The expanse and all encompassing character of the provisions of section 2(t)(i) of the Control of Narcotic Substances Act, 1997 leave me in no doubt that the legislature evidently intended that Poast or Doda of all poppy plants of whichever species is to be treated as 'narcotic drug'. The discussion made above leads me to an irresistible and inescapable conclusion that Poast or Doda, both in its natural and crushed forms, is a narcotic substance within the purview of the Control of Narcotic Substances Act, 1997.
' On the third question, the Court held that the question of percentage of morphine is relevant only to the case of a mixture referred to in clause (t)(iii) of section 2 of the said Act and such a question has no relevance to opium in the form of parts of the poppy plant or in the form of juice of the capsules of poppy. Section 3 of the said Act is confined to 'liquid preparations' only and refers to calculation of percentages only in the context of such liquid preparations. Poast or Doda by itself cannot be termed as a 'mixture' or 'liquid preparation' for the purposes of section 2(t)(iii) or section 3 and, therefore, in a case of recovery of Poast or Doda no ascertainment by a Chemical Examiner is required regarding quantity of morphine, etc., available in such Poast or Doda.
8. It is pertinent to mention here that originally the definition of opium was provided in the Opium Act,. 1878, which reads as under:-- "Opium includes also poppy heads, preparation or admixture or opium or intoxicating drugs prepared from the poppy".
' However, by virtue of section 40 and Schedule-II of the Dangerous Drugs Act, 1930 the definition of opium as contained in Opium Act, 1878 was altered, palpably to bring it in conformity with definition of opium provided in the former, which reads as under:-- "(i) The capsule of the poppy.
(ii) The spontaneously coagulates juice of such capsules which has not been submitted to any manipulation other than those necessary for packing and transport.
(iii) Any mixture with or without neutral materials of any of the above forms of opium; ' But does not include any preparation containing not more than 0.2 per cent of morphine."
' As per section 2(t) of CNSA, 1997, opium is defined as:--"2. Definitions:-
(t) "Opium" means--
(i) Poppy straw that is to say, all parts of poppy plant (papaver somniferum or any other species of papaver) after mowing, not being seeds, from which narcotic can be extracted.
(ii) The spontaneously coagulated juice of capsules of poppy which has not been submitted to manipulation other than those necessary for packing and transport; and
(iii) Any mixture, with or without natural materials of any of the above forms of opium."
The perusal of the above Clause (i) indicates that the definition was enlarged to include all parts of poppy plant, that is to say stalk, leaves, flowers in addition to poppy capsules and intention of legislature to enlarge the definition is very much borne out from the above said clause. Thus, the poppy straw cannot be excluded from the definition of opium.
9. Now turning towards the merits of the case, it is to be noted that all the prosecution witnesses are police officials. Although it has been settled that police officers are as good witnesses as general public but their veracity has to be judged in accordance with the facts and circumstances of each case. In rebuttal the appellant produced defence witnesses, who deposed that appellant was taken away from his house in the late night hours. Besides, the local people of the vicinity supported the defence version by filing affidavits that the appellant has good reputation but this fact was never considered by the learned trial Court as well as the High Court.
10. The narcotic substance was recovered from 112 nylon and 16 patron bags but the samples were not taken from each bag rather sample of 500 gram was taken from the whole material for Chemical Examiner. In Muhammad Hashim's case (ibid), relied upon by the learned counsel for the appellant, it has been held that sample has to be taken from each packet to ascertain that each bag contains the narcotics substance. In C.N.S.A., 1997 stringent sentences have been provided if offence is charged against the accused within any component of section 9 is proved, therefore, for such reason the Act has to be construed strictly and the relevant provision of law dealing with the procedure as well as - furnishing the proof like report of expert etc. Are to be followed strictly in the interest of justice, otherwise in such like cases it would be impossible to hold that total commodity recovered from his possession was narcotic substance. However, in the case of Ali Muhammad v.
State (2003 SCMR 54), it has been held that the question with regard to non-collection of the samples from the whole lot of recovered narcotics would arise in those matters where a challenge has been made that the recovered item is not narcotics. Both these cases have been discussed in the case of Kashif Amir v. State (PLD 2010 SC 1052) wherein it has been observed that the principle laid down in Muhammad Hashim's case is not attracted where the recovery of narcotics was not challenged by the accused before any Court. It is to be noted that the appellant denied the allegation against him as a whole, therefore, the said principle is not applicable in the instant case.
11. Above all, it is to be noted that on 22-10-2005 Qasim Abbas and others, who belonged to Police Station Defence, Lahore, conducted raid in the area of Police Station, South Cantt, Lahore at 4-30 a.m. The said officials had acquired spy information about the narcotics much before the raid and had enough time to pass on the said information to the concerned Police Station, however, they themselves conducted the raid and made the alleged recoveries, whereas, report was lodged at Police Station, South Cantt at 3-30 p.m. The recovered articles were kept by police party in its possession for a period of more than 10 hours without offering any explanation. Thus, it creates doubt in the prosecution case and in the light of such circumstances it is to be seen whether a sample from recovered articles was sent for report of Chemical Examiner? In the complaint (Exh.PA) as well as in the recovery memo (Exh.PB) it has been mentioned that Poast was recovered in 112 nylon and 16 patson sacks but in recovery memo there was no mention that recovered items were got grinded or mixed and then sent to the Chemical Examiner. On the other hand, contents of the report of Chemical Examiner (Exh.PD), after careful perusal, indicate that sample taken from the recovered articles (poppy heads and straw) was in 'grinded and crushed' form, therefore, admittedly these were not the illicit articles, which were recovered. Thus no recovery of poppy straw can be attributed to the appellant.
12. In addition to it, Rana Ameen was the owner of the shop from where the alleged narcotic was recovered. The said shop was rented out to accused-Abdul Waheed who further sublet the same to accusedZaheer. Both the said accused were arrested, however, they were acquitted of the charge by the Additional Sessions Judge on the ground that P.W.2, Qasim Abbas, P .W.3, Amir Ali as well as other P.Ws. Had not spoken a single word to connect them in the business of narcotics. No appeal against the said order to the extent of said accused persons had been filed, therefore, the possibility of substitution cannot be ruled out. P.Ws. 6 and 7 admitted during cross-examination that neither oral nor documentary evidence was available against the appellant regarding the ownership of the place of recovery (shop) and nothing was recovered at his pointation. Besides, the motorcycle and the lock and keys of the shop were not recovered, which create serious doubts in the prosecution case. P.W.5 Ansar Ali SI primarily the I.O. Of the case, during cross-examination admitted that the door of alleged shop was not shown by him in the site plan. On the other hand D.W.1 categorically stated that the appellant was arrested from his residence and was falsely implicated in the instant case. However, the trial Court disbelieved her statement being interested witness on the ground that she is mother of the accused and is emotionally involved to defend him.
Similarly, evidence of D.W.2 was disbelieved for the reason that he being a neighbourer is an interested witness, without assigning logical reason for the same. It is well settled that the evidence of any witness cannot be disbelieved merely for the reason that he/she has some relationship with the parties. Reference in this behalf may be made to the cases of Khadim Hussain v. State (2010 SCMR 1090), Ashfaq Ahmed v. State (2007 SCMR 641), Shoukat Ali v. The State (PLD 2007 SC 93) and Muhammad Mansha v. The State (2001 SCMR 199). In the case of Muhammad Ehsan v. State (2006 SCMR 1857) this Court has held that mere fact that the witness was widow of deceased would not by itself sufficient to hold that she was interested witness. Admittedly the fact of non-production of evidence regarding the ownership/possession of the appellant as well as the non-recovery of motorcycle and lock and keys was not considered by the trial Court without any cogent reasons. It is noteworthy that on the application of mother of the appellant the case was re-investigated and it was found that complainant Qasim Abbas S.-I. And Ansar Ali S.-I., did not conduct the investigation properly as such they were proceeded against departmentally, which speaks of the mala fide of the prosecution.
13. It is pertinent to mention here that section 29 of C.N.S.A., 1997 cast a duty upon the Court to presume in a trial under the Act that the accused has committed the offence under the Act unless contrary is proved. However, firstly, the prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused. If the prosecution proves the recovery of narcotics from the physical custody of accused, then the burden of proving that he was not knowingly in possession of the article is upon him. In the instant case, primarily the onus was upon the prosecution to prove that whatsoever was recovered, were narcotic drugs and the same were recovered from the possession of the appellant. Perusal of the record indicates that the prosecution has failed to prove the initial burden upon it to establish the fact that the narcotic drugs were secured from the possession of appellant. Whereas, the appellant by producing D.Ws.
Has succeeded in proving that he was arrested from his residence and the narcotic drugs were not recovered from his possession.
14. In view of the above facts and circumstances, we are of the opinion that the prosecution has failed to prove the case against the appellant, as such the appeal is allowed. The appellant, Muhammad Imran son of Haji Muhammad Akram is acquitted of the charge under section 9(c) of C.N.S.A., 1997 as a consequence whereof conviction/sentence awarded to him is declared illegal and not sustainable. These are the reasons of our short order of even date.
15. As above facts indicate that a false case was registered against Muhammad Imran, therefore, copy of this judgment be sent to PPO, Punjab with direction to distribute all concerned officials including supervisory officers to submit their explanation and on receiving their replies, they should be dealt with in accordance with law.