' CH. MUHAMMAD TARIQ, J.---This judgment will dispose of Criminal Appeal No, 177, Criminal Appeal No,178 of 2010 and Criminal Appeal No,71 of 2011, as the common questions of law and facts are involved in these. Criminal appeals.
2. Criminal Appeal No,177 and Criminal Appeal No,178 of 2010 have been directed against the judgment dated 25-3-2010 passed by Judge Special Court (CNS), Rawalpindi, who convicted and sentenced the appellants namely Syed Arbab Shah (appellant in Criminal Appeal No,178 of 2010) and Ibrar Hussain (appellant in Criminal Appeal No,177 of 2010) to life imprisonment each with fine of Rs,5,00,000 each, in default of payment of fine, further to undergo S.I. For one year each, in case F.I.R. No,105 dated 12-10-2006, under section 9(c) read with sections 14/15 of Control of Narcotic Substances. Act, 1997, registered with Police Station ANF, Rawalpindi. Benefit of section 382, Cr.P.C., was also extended to both the appellants.
3. Brief facts of the case are that on 12-10-2006, Tanvir-ul-Hanif (P.W.4) was posted as Inspector at Police Station ANF, Rawalpindi. On the same day, Captain Junaid, A.D. Incharge of Police Station, received a secret information that Arbab Shah and Ibrar Hussain, convicts, who are notorious smugglers of narcotics were scheduled to smuggle huge quantity of charas from Peshawar to Province of Punjab through G.T. Road, in motor car Toyota Corolla 2-D grey colour, on which a plate of Nazim was affixed. A raiding party consisting of Tanvir-ul-Hanif, P.W.4, Abid Babar, Gohar Nabi, A.S.-Is., Tajamal Hussain, Manzoor, constables and other was convened. The raiding party under the supervision of Captain Junaid proceeded to Tarnol Phattak on official vehicles No,IDM-5077 and IDF-629, driven by Zafar Iqbal and Musthaq Ahmad and reached there at 12-00 Noon.
4. At about 12-30 p.m. The said vehicle came from Peshawar side which was signaled to stop, but the driver of the said car tried to flee away, who was chased and was intercepted at some distance. On search 406 packets of haras weighing 440 kilograms wrapped in coloured wrappers were recovered from the dickey of the car. Another 6 packets weighing 7 kilograms of opium were also recovered. The samples were separated which were sealed, sent to the Chemical Examiner.
During personal search of Ibrar Hussain convict, Driving License P5 was recovered which was secured vide recovery memo. Exh.PC. While during personal search of Syed Arbab Shah convict, a sum of Rs,1000, copy of his NIC, P7, and I.D. Card of Nazim, P8, were recovered which was secured vide recovery memo. Exh.PD.
5. The prosecution produced as many as 5 witnesses in addition to documentary evidence. The statements of both the accused were recorded under section 342, Cr.P.C. Who denied the guilt and pleaded innocence. They also produced 3 witnesses in their defence. On the conclusion of trial, learned Judge Special Court (C.N.S.), Rawalpindi, convicted and sentenced the appellants mentioned here in above, hence these appeals.
6. Learned counsel for the appellants, inter alia contends that the appellants are innocent. They have not committed any offence. In fact A.N.F. Personnel suspected that the appellant Ibrar Hussain was a narcotics smuggler. They arrested him from motorway on 11-10-2006 near Burhan Interchange while he was coming from Peshawar alone. Nobody was accompanying him. They arrested him due to suspicion and was taken to Police Station ANF, Rawalpindi. Meanwhile, the brother of Ibrar Hussain was informed by the ANF officials. On this information, Syed Arbab Shah came at the Police Station NAF, as he was sitting Nazim of the locality and met Tanvir-ul-Hanif, Inspector P.W.4, who was I.O. Of the case, The said Inspector demanded Rs,10,00,000 for the release of Ibrar Hussain appellant. Meanwhile, hot altercation took place between them on the payment of bribe.. On seeing the non-fulfilment of demand of bribe, the said I.O. Grabbed Rs,2,00,000 from Syed Arbab Shah, appellant, and implicated both the appellants in this false case. The P. Ws. Being the ANF officials and sub ordinate to I. O. /Inspector deposed against the ' appellants.
7. Learned counsel for the appellants has further argued that it was a huge recovery which was planted against the appellants despite this fact that according to the version of prosecution, they were informed prior in time, but they have not complied with the provisions of section 103, Cr.P.C.
And has not produced any private witness of recovery nor obtained search warrants. Learned counsel also argued the case at considerable length and has put more thrust on Exh.DA/1 which is computer copy of entry and exit information of - motorway, whereby, the above said official vehicles bearing Registration No,IDF-629 and IDM-5077 were shown that they were entered on the motorway on 11-10-2006 at 5-05 p.m and 5-10 p.m. Respectively, while they were exit on the same day at 5-35 p.m. And 5-50 p.m, respectively. Learned counsel for the appellants contends that it is proof that the appellants were apprehended from motorway on 11-10-2006 but their arrest was shown on 12-10-2006. Further contends that there is no record in the register of Police Station that I.O. Or raiding party left for raid on G.T. Road, on 11-10-2006. Further contends that there are material discrepancies in the evidence of prosecution witnesses. The prosecution has failed to prove his case beyond any shadow of doubt. Therefore, appeal be accepted, impugned judgment be set aside and the appellants be acquitted.
8. Conversely, learned Special Prosecutor, ANF, has vehemently opposed this appeal and has contended that prosecution has proved his case beyond any shadow of doubt. The appellants were apprehended red-handed, with huge quantity of contraband. Such huge quantity could not be planted against the appellants. Further contends that police officials and Excise staff are as good witnesses as private persons. Though the appellants had produced 3 defence witnesses, but they could not bring any confidence inspiring evidence. These appeals are without any merits; they be dismissed.
9. Arguments heard. Record perused.
10. Learned counsel for the appellants has put maximum emphasis on the ground that the appellants were apprehended from motorway on 11-10-2006 and in the regard a document Exh.DA/1 was produced which is entry and exit information of motorway. Exh.DA/1 pertains to the entry and exit of official vehicles bearing No,IDF-629 and IDM-5077. When confronted, learned counsel of the appellants could not rebut that the occurrence had not taken place on 12-10-2006, as there is no proof on the file that the car in which the appellant Ibrar Hussain was travelling was entered or exit on 11-10-2006 on motorway nor there is any proof of payment of the token tax, paid by Ibrar Hussain to the motorway authorities while leaving toll plaza. The non-production of such evidence fully negates and shatter the defence version.
11. So far as the arguments of learned defence counsel about the discrepancies amongst the prosecution witnesses is concerned, there are no material discrepancies amongst the statements of P.Ws. Minor discrepancies are but natural. Similarly, innocent admission during cross- examination is not fatal to the prosecution because the case was registered on 12-10-2006, while the statements of prosecution witnesses were recorded on 22-10-2009 after lapse of more than 3 years. The other contentions of learned defence counsel, that P.Ws. Being the officials and subordinates of I.O./Inspector deposed against the appellants is also not sustainable because the credibility of police witnesses or Excise staff are as good and respectable as other public witnesses and their statements could not be discarded merely for the reasons that they are police employees or employees of Excise Department, as law laid down by the Hon'ble Supreme Court of Pakistan in case "Muhammad Khan v. The State" reported as (2008 SCM R 1616).
12. Similarly applicability of section 103, Cr.P.C. In narcotics cases has been excluded under section 25 of Control of Narcotic Substances Act, 1997. Non-inclusion of any private witness is not a defect to vitiate conviction. It is further important to point out that provision of sections 20, 21 and 22 of Control of Narcotic Substances Act, 1997, being directory in nature. Their non-compliance thereof, would not be a ground for holding trial/conviction bad in the eyes of law. Control of Narcotic Substances Act, 1997, is a special law. Standard of proving the case under special law is different, because special law is read as a whole while comparing with general law because special law excludes the provision of general law. Mere fact that prosecution witnesses belonged to Anti- Narcotics Force, by itself could not be considered valid reason to discard their statements. Charas and opium was recovered from the car from the possession of appellants, therefore, could below was justified to give finding against convicts/accused regarding their guilt. In case transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of country, if the case stood otherwise proved. Approach of court should be dynamic and pragmatic in approaching true facts of the case and drawing correct and rational interference and conclusions while deciding such type of cases. Court shall consider entire material as a whole and if it was convinced that the case was proved then Conviction should be recorded notwithstanding procedural defects. Chemical Examiner's reports regarding charas and opium were sufficient to prove that substance recovered from accused was charas which could be used to cause intoxication. Prosecution discharged its initial onus while proving that substance was recovered from them, whereas, accused failed to discharge their burden in terms of section 29 of Control of narcotic Substances Act, 1997.
13. So far as the arguments of learned special Prosecutor of ANF in Criminal Appeal No,71 of 2011 is concerned, that appellant Syed Arbab Shah (respondent in Criminal Appeal No,71 of 2011) be restrained from transferring or alienating his properties, de-frozen vide impugned order or changing their nature in any manner whatsoever because the appellants purchased the said properties from sale of narcotics. He could not point out any illegality in the impugned judgment because according to record respondent Syed Arab Shah purchased the above said property worth Rs,6,80,400 in the year, 2003. Learned counsel for the appellant in Criminal Appeal No,71 of 2011 could not produce any evidence from the record in support of his contention nor could point out any illegality in the impugned judgment. Therefore, no interference is called for in the impugned judgment.
14. To the extent of Criminal Appeal No,177 and Criminal Appeal No,178 of 2010, the prosecution has proved his case beyond any .Shadow of doubt, particularly when all the 5 P.Ws. Are constant. The result of Chemical Examiner is positive. Learned counsel for the appellants has failed to point out any illegality in the impugned judgment. So as a result of above discussion, all three criminal appeals are dismissed.