' MIRZA VIQAS RAUF, J. --- The instant appeal is directed against the judgment dated 19th of August, 2011 passed by the learned Judge Special Court Control of Narcotic Substances, Lahore, whereby the appellants and their co-accused namely lmtiaz Hussain were convicted as under:--- {{TABLE}} Naseer Ahmad Imprisonment for life with fine of Rs, 5,00,000/- (five lac) and in default one year's simple imprisonment Aziz Ahmad Five years' rigorous imprisonment with fine of Rs, 1,00,000/- (one lac) and in default six months' simple imprisonment lmtiaz Hussain Five years' rigorous imprisonment with fine of Rs, 1,00,000/- (one lac) and in default six months' simple imprisonment {{TABLE}}
2. Precisely the facts necessary for adjudication of instant appeal are that on 16th of June, 2010, a spy information was received in the Police Station Anti-Narcotics Force, Sialkot with regard to the transportation of huge quantity of narcotics through a car and motorcycle. In pursuance thereof, a raiding party was constituted which reached at Dharam Kot Aimnabad road. At about 01:30 p.m., a car bearing registration No, LEA-8312 and motorcycle bearing registration No, GAM-5909 came from Dharam Kot round about and stopped near Allama lqbal Public School. The car as well as motorcycle was encircled on the pointation of informer. Naseer Ahmad alias Matto was at the driving seat whereas Imtiaz Hussain was sitting beside him on the front seat of the car. Aziz Ahmad was apprehended alongwith the motorcycle. Naseer Ahmad led to the recovery of six packets underneath the driving seat and five packets from the rear left door of the car. Imtiaz Hussain produced two packets of charas. In addition to the recovery of charas, certain unlicensed weapons and bullets were also recovered. Two packets of charas were taken into possession, which were kept in a shopper tied with the handle of the motorcycle. On weighing charas recovered from Naseer Ahmad became eleven kilograms whereas recovery effected from Imtiaz Hussain came two kilograms charas. Similarly the recovered charas from Aziz Ahmad became two kilograms. This incident was reduced into writing as complaint which was placed on record as Exhibit-PA. In pursuance to the complaint, case F.I.R. No, 11, dated 16th of June, 2010 offence under Sections 9(c) & 15 of The Control of Narcotic Substances Act, 1997 and Section 13 of The Arms Ordinance (XX of 1965) was registered at Police Station Anti-Narcotics Force, Sialkot against the above-named persons.
3. After formal investigation, all the three accused were sent to face the trial before the learned Trial Court which was seized with the matter. The learned Trial Court framed the charge against the accused vide order dated 14th of March, 2011 to which all pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution examined three witnesses as PW1 to PW3. Aftab Ahmad who was officiating as moharrer at the relevant time was examined as PW1 He was also scribe of the F R. Munawar Hussain Constable who was recovery witness as examined as PW2. The said witness gave the detail of all the events which resulted into registration of F.I.R. Exhibit-PA/1. In addition to the said witnesses, Rana Muhammad Sarwar, Sub-Inspector who was the complainant as well as investigating officer was examined as PW3. Learned Special Prosecutor, after recording of evidence of Rana Muhammad Sarwar gave up Shahid lqbal, the other recovery witness being unnecessary and tendered reports of Chemical Examiner as Exhibit- PM, Exhibit-PM/1 & Exhibit-PM/2, respectively. Thereafter the prosecution evidence was closed thereafter.
5. After closure of evidence on behalf of the prosecution the statements of all the accused were recorded under Section 342 of The Criminal Procedure Code, 1898. All the accused denied the allegations and taken the plea that they have been falsely implicated in the instant case and their involvement is on account of previous enmity. Naseer Ahmad i,e, appellant No, 1 also got recorded his statement under Section 340(2) of The Criminal Procedure Code, 1898 as DW1. He also produced Muhammad Asghar and Nisar Ahmad as DW2 & DW3, respectively. The accused also tendered certain documents in his defence evidence as Exhibit-DA which is letter addressed to his counsel, certified copy of judgment dated 7th of April, 2006 Exhibit-DB, certified copy of judgment dated 9th of June, 2009 Exhibit-DC, certified copy of F.I.R. No, 304 of 2005 Exhibit-DD and certified copy of petition and orders passed therein were placed on record as Exhibit-DE, Exhibit-DF & Exhibit-DG, respectively. In addition to these documents, copy of order dated 15th of December, 2005, copy of application addressed to District Police Officer and an affidavit was tendered as Mark-A to Mark-C, respectively. Upon completion of evidence from both the sides, learned Trial Court vide its judgment dated 19th of August, 2011 convicted all the accused as per detail mentioned in paragraph No, 1 above.
6. Before dilating upon the merits of instant appeal, it would be in the fitness of things to observe that lmtiaz Hussain co-convict filed Criminal Appeal No, 2014 of 2012 which was decided on 19th of September, 2013, whereby while dismissing his appeal, his sentence was reduced to three years and six months' rigorous imprisonment by maintaining the fine and imprisonment in case of default in payment of fine Similarly vide judgment dated 26th of July, 2012, the instant appeal to the extent of Aziz Ahmad appellant No, 2 was dismissed by reducing the quantum of sentence awarded to him to the one already undergone. In the light of this development, now the instant appeal is only to the extent of Naseer Ahmad alias Matto i,e, the appellant No, 1.
7. Learned counsel for the appellant submitted that the complainant was not authorized under the law to search and arrest the accused and all the proceedings were conducted in violation of Section 21 of The Control of Narcotic Substances Act, 1997. He maintained that while proceeding against the accused, the mandatory provision of Section 6 of The Anti-Narcotics Force Act, 1997 as well as Section 27 of The Control of Narcotic Substances Act, 1997 were also violated. Learned counsel further submitted that the case against the appellant is the outcome of previous enmity and he has been falsely implicated in the instant case. Learned counsel argued that the prosecution has failed to lead any evidence against the appellant, warranting his conviction. In the last, learned counsel submitted that the sentence awarded to the appellant is harsh in the light of The Control of Narcotic Substances (Regulations of Drugs of Abuse, Controlled Chemicals, Equipment and. Materials) Rules, 2001. Learned counsel added that the impugned judgment is not tenable under the law.
8. Conversely, learned Senior Special Prosecutor appearing on behalf of Anti-Narcotics Force submitted that the prosecution has fully proved its case against the appellant as well as co- convicts. He submitted that the learned Trial Court has rightly recorded the conviction of the appellant. Learned Senior Special Prosecutor further added that the appellant has a criminal history and there is no animosity to falsely involve him in the instant case. He added that the appellant was the driver of the car and he got recovered eleven kilograms of charas which is fully proved. In the last, learned Senior Special Prosecutor submitted that the investigation was conducted in accordance with law and no rule was violated. In support of his contentions, he relied upon the case of "The State v. Abdali Shah" (2009 SCM R 291).
9. We have heard the learned counsel for the appellant as well as the learned Senior Special Prosecutor on behalf of the Anti-Narcotics Force and perused the record.
10. The appellant was apprehended on 16th of June, 2010 when he came on a car bearing registration No, LEA-8312 alongwith his co-convict Imtiaz Hussain. The appellant led to the recovery of eleven kilograms charas from different parts of the car. It is also evident that from co-convict Imtiaz Hussain, three kilograms charas was recovered who was also convicted by way of same judgment and his conviction was even maintained by this Court vide judgment dated 19th of September, 2013. Aziz Ahmad who was accompanying the appellant on a motorcycle, he got recovered two kilograms charas, he was also convicted by the learned Trial Court and his appeal was also dismissed by this Court vide judgment dated 26th of July, 2012.
11. We have observed that though initially F.I.R. Was chalked out under Sections 9(c) & 15 of The Control of Narcotic Substances Act, 1997 but the learned Trial Court, while framing the charge against the appellant as well as co-convicts charged them only under Section 9(c) of The Control of Narcotic Substances Act, 1997 and this was the reason, they all were severally punished on the basis of quantum of recovery effected from each of them. Since the fate of the appeals filed by the co-convicts namely Aziz Ahmad and Imtiaz Hussain has already been determined, so there is no need to embark upon the conviction awarded to the said convicts.
12. For establishing the guilt of the appellant No, 1, the prosecution examined Aftab Ahmad, Head Constable as PW1. He deposed about the registration of F.I.R. ExhibitPA/1 on the basis of complaint Exhibit-PA. He also stated that the Investigating Officer PW3 handed over to him fifteen sample parcels said to contain charas for onward transmission to the office of Chemical Examiner and fifteen sealed parcels alongwith other case property for retaining the same in the maalkhana. The said witness also stated that on 18th of June, 2010, he handed over fifteen sealed sample parcels to Munawar Hussain Constable PW2 for onward transmission to the office of Chemical Examiner.
Through the statement of this PW, the prosecution duly established the safe custody of the recovered charas and its transmission to the office of Chemical Examiner within two days from the date of registration of case. Munawar Hussain, who witnessed the recovery and took the sealed sample parcels to the office of Chemical Examiner was produced as PW2. In his statement, the recovered charas as well as the recovery memo. Were exhibited as Exhibit-PB and Exhibit-P 1/1-11.
He also ,stated that from eleven packets, ten grams each was separated for chemical .Analysis. He also affirmed that on 18th of June, 2010, he deposited the sample parcels with the office of Chemical Examiner. His presence at the time of recovery was even established by the defence during his cross-examination. This witness remained firm on all aspects of the recovery proceedings and nothing could be extracted from, his statement which can be termed as adverse to the prosecution case. This witness was even not cross-examined to the extent of safe deposit of sample parcels to the, -Chemical Examiner. Rana Muhammad Sarwar, Sub-Inspector who appeared as PW3, completely deposed in line with the other prosecution witnesses and even his evidence could not be shattered in any way. The report of Chemical Examiner was placed as Exhibit-PM which also affirms that the recovered substance was charas.
13. In our considered opinion, the prosecution hasably discharged the initial onus of proof and the evidence of the prosecution was cogent and overwhelming. The appellant while recording his statement under Section 342 of The Criminal Procedure Code, 1898 submitted that the case is false against him and the same is result of enmity. He also appeared as his own witness under Section 340(2) of The Criminal Procedure Code, 1898. He admitted during his cross-examination that none of the officials who have deposed against him, have any previous enmity. The perusal of the statements of the defence witnesses clearly suggests that no convincing evidence is led by the appellant which can shatter the prosecution case.
14. Now we advert to the question of non-compliance of certain provisions of law as raised by the learned counsel for the appellant. First of all, we would like to deal the said objection in the light of Section 21 of The Control of Narcotic Substances Act, 1997. For ready reference, the same is reproduced below:--- "21. Power of entry, search, seizure and arrest without warrant.-- (1) Where an officer, not below the rank of Sub-Inspector of Police or equivalent authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may:---
(a) enter into any such building, place, premises or conveyance;
(b) break open any door and remove any other obstacle to such entry in case of resistance;
(c) seize such narcotic drugs, psychotropic substances and controlled substances and other materials used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; an
(d) detain, search and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under sub-section (1), the officer referred to in the sub-section shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer."
15. The contention of the learned counsel for the appellant that the Investigating Officer PW3 Rana Muhammad Sarwar was since not authorized by the Federal Government in terms of the above provision of law, so all the proceedings conducted by him are coram non judice. We would like to refer S.R.O. 656(1)/2004, dated 2nd of August, 2008 which is reproduced below:--- "S.R.O. 656(1)/2004, dated 2.8.2004.-- In exercise of the powers conferred by sub-section (1) of Section 21 of the Control of Narcotic Substances Act, 1997 (XXV of 1997), and in supersession of its Notification No, S.R.O. 1134(1)/97, dated 7th July, 1997, the Federal Government is pleased to authorize the members not below the rank of Sub-Inspector or equivalent of the Anti-Narcotics Force, Provincial Excise and Police Departments. Inspector or equivalent of the Customs Department and Subedar in the Frontier Corps in the Provinces of Balochistan and the North-West Frontier, Sub-Inspector or equivalent of Pakistan Rangers (Sindh), Inspector or equivalent of Pakistan Rangers (Punjab), Naib Subedar or equivalent of Pakistan Coast Guards and to the Officers of Maritime Security Agency not below the rank of Chief Petty Officer to exercise the powers and perform the functions under the aforesaid section and Sections 22, 23, 37(2) and 38 of the said Act within the areas of their respective jurisdiction. IPLD 2006 Cent. St. 101"
16. It is manifestly clear from the above that all the members of Anti-Narcotics Force having the rank of Sub-Inspector has been duly authorized by the Federal Government to exercise the powers and perform the functions under Sections 21, 22, 23, 37(2) & 38 of The Control of Narcotic Substances Act, 1997. Thus, the prosecution has fully complied the mandate of Section 21 of the Act ibid. Even otherwise, it is time and again held by the Honourable Supreme Court of Pakistan that non-compliance of the provisions of Section 21 of The Control of Narcotic Substances Act, 1997 at the most is an irregularity, which is curable under Section 537 of The Criminal Procedure Code, 1898.
Reliance in this respect can safely be placed on "The State v. Abdali Shah" (2009 SCM R 291). And "Fida Jan v. The State" (2001 SCM R 36).
17. In response to the objection of the learned counsel in terms of Section 27, it is held that since the arrest and seizure of articles was not in pursuance to warrant issued under Section 20 of The Control of Narcotic Substances Act, 1997 as contemplated in the said provision, so the same is not applicable to the case in hand. The contention of the learned counsel on the basis of Section 6 of The Anti-Narcotics Force, 1997 also has no force in the attending circumstances, as the investigation was conducted strictly in accordance with the mode provided under the law.
18. The objection of the learned counsel for the appellant with regard to the dual status of the complainant PW3 who acted as complainant as well as Investigating Officer of the case, it is observed that there is no cavil that no legal impediment exists in the way of a police officer who is a complainant of the case to also act as an Investigating Officer simultaneously, unless the accused establishes some prejudice as a consequence of such dual capacity. Reliance in this regard can be placed on the case of "The State through Advocate-General, Sindh v. Basir and others" (PLD 1997 Supreme Court 408) wherein it is held that:--- "8. There is no legal prohibition for a police officer to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer so long as it does not, in any way, prejudice the accused person. The Court will have to appraise the evidence produced by the prosecution as a whole and will have to form the opinion after evaluating the same This view was further reiterated in the case of "Zafar v. The State" (2008 SCM R 1254).
19. While adverting to the contention of the learned counsel for the appellant with regard to testing and analysis of the recovered charas and the quantum of sentence awarded to the appellant, it would be advantageous to go through the relevant provisions regulating the said affair. For this purpose, Section 36 of The Control of Narcotic Substances Act, i997 deals with the testing and analysis of the recovered substance which reads as under:- "36. Reports of Government Analysts.-- (1) The Government Analyst to whom a sample of any narcotic drugs, psychotropic substance or controlled substance has been submitted for test and analysis shall deliver to the person submitting it, a signed report in quadruplicate in the prescribed form and forward one copy thereof to such authority as may be prescribed.
(2) Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted, be conclusive."
20. It is manifestly clear from the material available on the record that out of recovered substance sample parcels were sent to the Government Analyst for analysis who submitted his report which was placed on record as Exhibit-PM as per which the recovered substance contain charas. This report of the Government Analyst is per se admissible in terms of Section 36(2) of the Act ibid. The appellant has not even challenged the authenticity of said report during the trial. Section 9 of the Act provides the punishment for contravention of Sections 6, 7 & 8 of The Control of Narcotic Substances Act, 1997. The quantum of punishment is dependent upon the quantity of the recovered substance and if the quantity exceeds ten kilograms, the punishment shall not be less than imprisonment for life.
21. We are of the considered opinion that for the purpose of determining the quantum of punishment, it is the quantity which matters and not the quality of the recovered substance. The Court can only take into consideration the quality of the recovered substance while imposing the penalty of fine and that too when no amount of minimum fine is fixed for any offence under the Act.
In this regard, Section 18 of The Control of Narcotic Substances Act, 1997 is the relevant provision which is reproduced below:- "18. Limit of fine, etc.-- (1) Where for any offence under this Act no amount of minimum fine has been fixed the Special Court shall impose the fine keeping in view the quality and quantity of the narcotic drug, psychotropic substance or controlled substance involved in commission of such offence."
22. In view of above-quoted provisions while dealing with the question of punishment of imprisonment and fine, we have no doubt in our mind that the appellant could not be awarded punishment less than imprisonment for life in the light of embargo placed in Section 9 of the Act ibid. Reference of the learned counsel for the appellant to The Control of Narcotic Substances (Regulations of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001 and the schedule appended therein is of no help to him as the Rules or the schedule cannot prevail upon the Act. While dealing with this question, the Honourable Supreme Court of Pakistan in the case of "Federation of Pakistan through Secretary, Ministry of Finance and others v. Ha]!
Muhammad Sadiq and others" (PLD 2007 Supreme Court 133) held that:- "23 At this stage reference may be made to the following two principles discussed in Craies on Statute Law Seventh Edition, 1971 Pg. 225 and N.S. Bindra's The Interpretation of Statutes Seventh Edition at Pg. 92:---
(1) Craies on Statute Law Seventh Edition, 1971 p.
225.-- "If the enacting part of the Statute cannot be made to correspond with the Schedule, the latter must yield to the former".
(2) N.S. Bindra's The Interpretation of Statutes, Seventh Edition at pg. 92). --In case of conflict between the body of the Act and its Schedule, the former prevails. Reference of book "Understanding Statutes" by S.M. Zafar is equally important wherein it has been observed that:---
(1) "The schedule is an extension of the section which induces it. Material is put into a schedule because it is too lengthy or detailed to conveniently accommodated in a section or because it forms a seperate document (such as a treaty)
(2) With respect to calling it a schedule, a schedule is an Act of Parliament is a mere question of drafting; a mere, question of words; a schedule is as much a part of the statute and is as much an equipment as, any other part."
' The above principles are sufficient to conclude that a schedule is an enjoinder equal status of an enactment. There could be cases wherein a conflict between the Act and the schedule could be visible and in such a situation principle noted in the Craies on Statute Law (Seventh Edition 1971 at pg. 225) and N.S. Bindra's The Interpretation of Statutes (Seventh Edition pg. 92) shall be pressed into service. Keeping in view the above principles, this Court in the case of Excise and Taxation Officer v. Burma Shell Storage (ibid) held that in case of irreconcilable inconsistency between the charging section and a schedule, former is to prevail and schedule is to yield to the Act."
' This Court in the case of "Muhammad Saeed v. The State" (2007 P.Cr.L.J. 156) reiterated the same principle. Reliance can also be placed on "Muhammad Nadeem Arif and others v. Inspector- General of Police, Punjab, Lahore and others" (2011 SCM R 408).
23. At the time of his arrest the appellant was at the driving seat and he led to the recovery of eleven kilograms charas underneath the seat and from the secret compartment of the car. The prosecution has led sufficient evidence to prove the said recovery. Accused being the driver of the vehicle was incharge of the same and all the articles lying therein were under his control and possession. Once the prosecution discharged the initial onus of prove then in terms of Section 29 of The Control of Narcotic Substances Act, 1997, burden automatically shifts upon the accused to prove the contrary to the prosecution. Guidance can be sought from the judgments of the Honourable Supreme Court of Pakistan "Kashif Amir v. The State" (PLD 2010 Supreme Court 1052) and "Ghulam Qadir v. The State" (PLD 2006 Supreme Court 61).
24. Record suggests that this is not the only case against the appellant, he was involved in nine other cases relating to the same offence, which starts from the year 2000 with FIR. No 277 which was registered at Police Station Ferozewala, District Gujranwala. When the appellant himself admitted in his defence evidence that there was no animosity of the Anti-Narcotics Force officials there is no reason to falsely implicate him in the instant case.
25. The nutshell of the above discussion is that the prosecution has fully proved its case against the appellant and there is even no hint of doubt left with regard to his guilt. We are thus of the considered view that the learned Trial Court has committed no illegality while convicting the appellant by way of impugned judgment. The appellant has failed to point out any illegality or material irregularity, requiring interference by this Court in exercise of appellate jurisdiction.
Resultantly by maintaining the judgment dated 19th of August, 2011 of the learned Trial court, we hereby dismiss the instant appeal. Criminal .