' ZAFAR ULLAH KHAN KHAKWANI, J. --- Ghulab All alias Ghulabo and Gohar Ali, appellants alongwith Muhammad Hussain co-accused were tried by the learned Addl. Sessions Judge, Arif Wala, Distt.
Pakpattan in case F.I.R. No, 141 dated9.3.2010 under Section 9(c) of the Control of Narcotics Substances Act, 1997 registered at Police Station Saddar Arifwala. At the conclusion of trial the appellants were found guilty of the offence so they tasted the fruits of commission of their offence in shape of conviction under Section 9(c) of the C.N.S.A. And as such each one of them was sentenced to suffer imprisonment for life and fine of Rs, 2,00,000/- and in case of default in payment of fine to further undergo six months S.I. Vide judgment dated 13.3.2013 by learned Addl.
Sessions Judge, Arifwala Distt. Pakpattan. Benefit of Section 382-B Cr.P.C. Was also granted to the convicts. Their co-accused Muhammad Hussain was, however, acquitted.
2. Feeling aggrieved of the above noted conviction and sentences, Ghulab All and Gohar Ali convicts have filed Cr. Appeal No, 494 of 2013 before this Court.
3. It may be mentioned here that during trial of the above said accused persons, learned ADPP submitted an application for summoning Muhammad Yar accused also to face trial who had been placed in column No, 2 of report under Section 173 Cr.P.C. The learned trial Court dismissed the said application vide order dated 8.3.2012. However, again same effort was made by the ADPP and this subsequent application also met with the same fate vide order dated 15.10.2012. The State has assailed said orders of the learned trial Court dated 8.3.2012 and 15.10.2012 through Cr. Appeal No, 55 of 2013. Said appeal was directed to be heard alongwith Cr. Appeal No, 494 of 2013. This being so, both these appeals are being decided together through a single judgment.
4. The prosecution story as set out in the F.I.R.(Ex.P/1) registered on the basis of written statement (Ex.PA) of Aftab Ahmad Inspector (PW.3) is that on 9.3.2010 the said Inspector alongwith Bashir Ahmad, A.S.I. Muhammad Khalid A.S.I.,Shafique TASI and Muhammad Ramzan, HC was present in Chak No, 81/EB when he received secret information about transportation and presence of huge quantity of narcotics in the house of the appellants, upon which they conducted raid at the house of the appellants and found that Ghulab Ali alias Ghulabo appellant was unloading narcotics from the car who was apprehended whereas the other accused persons, namely, Gohar Ali, Muhammad Yar, Muhammad Hussain and another unknown person made their escape good. On the pointation of Ghulab Ali , appellant the raiding party recovered nine packets of chars and seven packets of opium. Each packet of chars was weighed 1200 grams making a total 10800 grams whereas each packet of opium was 1250 grams making a total 8750 grams. 10 grams from each packet of narcotics was separated for chemical analysis and the narcotics was taken into possession vide memo Ex.PB. It was also alleged that Ghulab Ali, appellant further pointed out and got recovered 33 packets of chars and 4 packets of opium which were weighed and each was found to be 1200 grams chars making a total 39 kilo 600 grams and 1250 grams opium making a total five kilograms respectively. 10 grams from each packet of recovered narcotics was separated for chemical analysis and the narcotics was taken into possession vide memo Ex. PC. It was further alleged in the F.I.R. That from the courtyard of the house the police party also took into possession 10 packets of chars which had been thrown by Gohar Ali, appellant which were weighed and each packet found to contain 1200 grams of chars making a total 12 kilograms. 10 grams from each packet was separated for chemical examination and narcotics recovered was seized vide memo Ex.PD. It was also alleged that Muhammad Hussain accused had also thrown six packets of chars while fleeing away from the spot which were taken into possession and weighed and each packet was found to be 1200 grams of weight making a total 7 kilo 200 grams. 10 grams chars from each packet was separated for chemical analysis and narcotics was seized vide recovery memo Ex.PE. The police party yet took into possession four other packets containing chars which had been thrown by Muhammad Yar accused which were weighed and found to contain 1200 grams chars making a total 4 kilo 800 grams. The Inspector separated 10 grams chars from each packet for chemical analysis and seized these packets vide memo Ex.PF. It was further claimed in the F.I.R. That unknown person while fleeing from the spot had also thrown three packets of chars in the courtyard which were also taken into possession and weighed and found to have contained 1200 grams chars in each packet making a total 3 kilo 600 grams. 10 grams of chars from each packet was separated for chemical analysis and the narcotics was seized vide recovery meme Ex. PG. Apart from the narcotics the car from which narcotics was being unloaded was also taken into possession.
5. After registration of the case, investigation was carried out by Bashir Ahmad Sub Inspector (PW.9) who inspected the spot, arrested Ghulab Ali appellant, took over the charge of case property i,e, narcotics and car and conducted other formal investigation. After investigation Ghulab Ali, appellant was found involved in the case, as such he was challenged to Court. The investigator also obtained proclamation of Gohar Ali appellant and Muhammad Hussain co-accused who were not traceable. However, Muhammad Yar, accused was found by the investigator not involved in the case.
6. At the commencement of trial, charge was framed against Ghulab Ali, appellant to which he pleaded not guilty and claimed trial. Evidence of the prosecution was being recorded when GoharAli, appellant wc.s also arrested by Abdul Waheed, A.S.I. On 3.10.2011 and handed over to Saif ul Malook Sub Inspector who conducted investigation, found him involved in the case, prepared challan by placing him in column No, 3 and submitted the same before court. On 11.4.2011 Muhammad Hussain accused was also arrested by Ali Sher Sub Inspector PW.
4. After fulfilling legal requirements, he was also tagged with Ghulab Ali and trial of all these three accused commenced.
7. The prosecution produced as many as 9 witnesses to prove the charge. At close of prosecution evidence the accused were examined under Section .342 Cr.P.C.. They dismissed and denied each piece of prosecution evidence. However, neither they produce any witness in their defence nor appeared in witness box under Section 340(2) Cr.P.C. At the conclusion of trial the appellants were convicted and sentenced and Muhammad Hussain was acquitted as noted above.
8. Learned counsel for the appellants has contended that the appellants are innocent and have been falsely involved in this case and that in fact the police recovered the narcotics from an unknown person to whom the police party let off after taking huge bribe and the appellants were roped only because of their previous record and personal grudge; that all the witnesses of recovery are police officials and no private person was associated to witness the proceedings in spite of the fact that the place of recovery is thickly populated area and thus the whole exercise is in violation of Section 103 Cr.P.C. Learned counsel maintained that there is delay of 15 days in sending the sample to the laboratory which is again violation of law and that all the proceedings have been carried out by the police while sitting in police station. Neither any raid was conducted nor anything was recovered from the accused and all the proceedings are fake. Learned counsel further submitted that the prosecution story is full of doubts and suspicions and there are material contradictions as well as discrepancies in the statements of the prosecution witnesses benefit of which must go to the accused and the appellants deserve acquittal. Learned counsel emphatically argued that Gohar Ali appellant was not apprehended at the spot, he was not previously known to the police but no identification parade was conducted and there is nothing on record to show that the said appellant was connected with the commission of crime except the alleged statement of his co-accused and thus case of this appellant is based on presumptions and conjectures.
Learned counsel lastly contended that on the same evidence Muhammad Hussain accused was acquittal as such the appellants also deserved acquittal.
9. On the other hand learned Law Officer vehemently contended that on spy information a raid was conducted by the police party and huge quantity of narcotics was recovered in the present case and Ghulab Ali appellant was apprehended red handed; that there was no previous illwill or animosity on the part of the police or the complainant to falsely implicate the appellants in this case; that sample separated from the contraband recovered from the appellants were sent for chemical analysis and reports of the laboratory are positive which confirm the prosecution story that the recovered material was chars and opium; that application of provisions of Section 103 Cr.P.C. Has been ousted from the cases of narcotics and as such the raiding team had committed no illegality and that the appellants could not establish that the police had nourished any kind of grudge as a result of which they were falsely implicated so the prosecution has fully proved its case and the appellants are not entitled to be acquitted.
10. We have heard learned counsel for the parties and have gone through the record. At trial Aftab Ahmad Inspector of C.I.A. Pakpattan entered the witness box as P.W.
3. He almost reiterated the story narrated by him in the complaint Ex.PA. That he alongwith other police officials was patrolling in his area when he received spy information and conducted a raid and arrested Ghulab Ali appellant who was unloading chars and opium from the car whereas his co-accused Gohar Ali and others made good their escape. This witness gave minute details of the narcotics which were recovered from possession of Ghula-b Ali, appellant and recovered from the spot which had been thrown by the other co-accused at the time of escape and also that the same were weighed and taken into possession. He was fully corroborated by Bashir Ahmad Sub Inspector PW.2 who was also a member of the raiding party. Contention of learned counsel for the appellants regarding violation of Section 103 Cr.P.C. Has no force because Section 25 of the Control of Narcotics Substances Act has excluded the application of the said provision of Cr.P.C. From the cases of narcotics. For facility of reference the said provision of law is reproduced hereunder:
25. Mode of making searches and arrest. The provision of the Code of Criminal Procedure, 1898, except those of Section 103, shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections.
11. A bare perusal of this provision would show that for the purpose of searches and arrest in cases of narcotics mode provided under Section 103 Cr.P.C. Shall not apply. Guidance in this respect has been sought from the case reported as Salah ud Din Vs. The State (2010 SCM R 1962) relevant portion of which runs as under: ' "We are conscious of the fact that no private witness could be produced but it must not lost sight of fact that reluctance of the general public to become witness in such like cases by now has become judicially recognized fact and there is no way out but to consider the statement of an official witness, as no legal bar or restriction whatever has been imposed in this regard It is well settled by now that the police officials are good witnesses and can be relied upon of their testimony remained un; shattered during cross examination."
' Even otherwise the place of recovery was not a, public place but was a house. As such there was no possibility of any private person to witness the proceedings especially in night when this occurrence took place. The next attack of learned counsel for the appellants was that the samples of narcotics were sent with a delay of 15 days whereas it was requirement of law that the sample should be received within laboratory within 72 hours for the time of recovery. It may be mentioned that direction given in Rule 4 and 5 of the Control of Narcotics Substances (Government Analyst Rules) 2001 is directory in nature and not mandatory at all coupled with the fact that it does not override the main statute.
' It may be kept in mind that as is evident from its nomenclature intent and object of Control of Narcotics Substances Act is to control the production, processing and trafficking of, narcotics etc. And being promulgated for this special purpose, so its operative provisions should not be crushed on mere technicalities and in achieving the object of this Act Courts should be vibrant and minor irregularities or discrepancies must be overlooked. Guidance in this regard Mr. Is sought from the prom ounevapnt if apex Court reported as Ismaeel Vs. The State (2010 SCM R 27) in a case of similar nature which is as under: ' "Mere fact that prosecution witnesses belonged to Anti-Narcotics Force, by itself cannot be considered a valid reason to discard their statements It is an admitted fact that aforesaid chars and opium was recovered from four doors of the car which was being driven by the petitioner coupled with the fact that only the petitioner was present in the car. Therefore, courts below were justified to give finding against the petitioner qua his guilt. Finding of the courts below are in consonance with the law laid down by this Court in various pronouncements.
' It is now settled proposition of law by flex of time that in the case of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of country, if the case stands otherwise proved the approach of Court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases. The court should consider entire material as a whole and if it is convinced that the case is proved then conviction should be recorded notwithstanding procedural defects It is pertinent to mention here that Chemical Examiner's reports regarding Chars and opium are sufficient to prove that substance recovered from the petitioner is chars which can be used to cause intoxication. The prosecution discharged its initial onus while proving that substance was recovered from him whereas the petitioner had failed to discharge his burden in terms of S.29 (d) of Control of Narcotic Substances. Act, 1997.... Leave to appeal was refused.'
' 77 kilograms chars and 131/2 kilogram opium was recovered from possession/behest of the appellants. It was never case of the appellants that such a huge quantity of narcotics was not recovered from them. It may be mentioned that it has come on record through statement of Bashir Ahmad P.W.9 that when he at the time of remand of the accused the learned Magistrate directed him to produce whole quantity of narcotics before him and each packet was weighed by the Magistrate personally and sealed in the court. Although learned counsel for the appellants contended that the sample were sent to the laboratory after 15 days of recovery of narcotics but the defence could not prove that the samples were tampered during this period. On the other hand the prosecution produced Muhammad Tariq, PW.5 who deposed that he was Moharrer at the relevant time and that he kept the contraband in safe custody in malkhana and handed over the same to Muhammad Hanif Constable for onward transmission to the office of chemical examiner intact. Likewise Muhammad Hanif Constable appeared as PW. 6 and deposed that he deposited the said parcels in the office of chemical examiner intact and that the same were not tampered with during his custody. Opportunity was given to the defence to cross-examine these two witnesses but it was not availed. It is settled proposition of law that when a witness enters into witness box but is not cross examined in spite of opportunity being given, the statement should be considered as admitted. Reference in this context may be made to the case reported as Mst. Nur Jehan Begum through Legal Representatives Vs. Syed Mujtaba Ali Naqvi (1991 SCM R 2300) relevant portion of which reads as under: ' "The principle enunciated in the commentaries and rulings is that where on, a material part of his evidence a witness is 'hot cross-examined it may be inferred that the truth Of such statement has been accepted. Statement of a witness which is material to the controversy of the case particularly when it states his case and the same is not challenged by the other side directly or indirectly, then such unchallenged statement should be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence."
' It has also been held by the apex Court in Dr. Javaid Akhtar Vs. The State (PLD 2007 SC 249) is as under: ' "The said witness was not cross-examined by the defence qua the aforesaid portion of his examination in chief, therefore, this portion was admitted by the petitioner...."
' Thus the delay in submission of sample to the laboratory is not fatal to the prosecution case to vitiate the conviction. So far as contradictions between statements of the P Ws. Are concerned, it is settled law that such type of minor contradictions in nature cannot affect the trial in narcotics cases. Huge quantity of narcotics comprising 77 kilograms chars and 13'/2 kilograms opium was recovered from the appellants out of which samples were separated and sent for chemical analysis and reports (Exs.PK and PL) of the chemical examiner are positive. The positive reports of the laboratory support the prosecution case. Now once the prosecution had established recovery of narcotics from the appellants, burden was shifted to the appellants to discharge the same through cogent evidence in order to prove their innocence. Although the appellants took up the plea in their statements recorded under Section 342 Cr.P.C. That the police party had recovered narcotics from some other unknown persons and by letting him off after taking bribe had involved the appellants in order to show Karawai, but they could not substantiate their plea through cogent and evidence as required under Section 29 of the C.N.S.A.
12. So far as the contention of learned counsel for Gohar Ali, appellant is concerned that he was not apprehended at the spot and was not previously known to the raiding party and that no identification parade had been conducted so there was nothing on record to connect him with the recovered narcotics, is concerned it may be mentioned that Ghulab Ali appellant was apprehended at the spot. It was he who disclosed that his brother Gohar Ali was also involved and thereafter got recovered narcotics thrown by Gohar Ali. We have minutely gone through the documents/annexures and found that raid was conducted at 8.35 p.m. On 9.3.2010 and the F.I.R.
Was registered at Police Station at 9.10 p.m. Same night. Gohar Ali, appellant was specifically nominated in the F.I.R. And it was stated that on seeing the police party he ran away from the spot throwing narcotics which he was carrying. The said narcotics was weighed and found to be 12 kilogram and taken into possession at the spot vide memo Ex.PD. It is specifically mentioned in the said recovery memo that the narcotics taken into possession was thrown by Gohar Ali, appellant.
Thus we see that right from the time of raid Gohar Ali was arrayed as an accused. After registration of the case, he went underground and was not traceable and the investigator got him declared proclaimed offender. It was only when the trial of Ghulab Ali, appellant was under process that Gohar Ali was arrested and challaned.
13. During trial the witnesses remained consistent with regard to place of recovery, recovery of narcotics and even the names of the appellants. It has come on record that the appellants were notorious drug dealers having previous record. As such in our view there was no need of identification parade when the appellants were already known to the police. All these circumstances, fully involve the appellants with the commission of crime. So it may be mentioned at the cost of repetition that huge quantity of narcotics was recovered from/at behest of the appellants, no enmity whatsoever has been alleged against the prosecution witnesses and there is hardly any ground for false implication without having any ulterior motive which was never alleged.
14. In view of what has been noticed and discussed above, looking from whatever angle we are satisfied that the prosecution has successfully proved its case and that the appellants have rightly been convicted and sentenced. Resultantly we find no force in Cr. Appeal No, 494 of 2013. The same is hereby dismissed.
15. So far as Cr. Appeal No, 55 of 2013 filed by the State against the order dated 15.10.2012 passed by learned Addl. Sessions Judge Pakpattan dismissing application of the State to summon Muhammad Yar (respondent herein) to stand trial of case F.I.R. No, 141 dated 9.3.2010 registered under Section 9(c) of the Control of Narcotics Substances Act, 1997 registered at Police Station Saddar Arif Wala, Distt. Pakpattan Sharif alongwith his co-accused, is concerned, when confronted with the fact that during pendency of this appeal, trial had been concluded and the co-accused had either been convicted or acquitted and thus the appeal has become infructuous, learned Deputy Prosecutor General does not press this appeal. Cr. Appeal No, 55 of 2013 is, therefore, dismissed as having become infructuous.