SHAHAB SARKI, J.--Appellants Syed Riaz Hussain Shah and Syed Zahid Hussain Shah have assailed the judgment dated 16-1-2012 passed by the Court of learned Special Judge for CNS, Naushahro Feroze in Special Case No, 14 of 2009 (The State v. Syed Riaz Hussain Shah and another), arising out of Crime No, 4 of 2009 of Police Station ANF, Sukkur under sections 6, 9(c), (C.N.S.) Act, 1997, whereby convicting the appellants under section 9(c), Control of Narcotic Substances Act, 1997 and sentencing them to suffer Rigorous Imprisonment for life and to pay a fine of Rs,500,000 each and in default thereof further to suffer S.I. For three years. They were also extended benefit of section 382-B, Cr.P.C.
2. The brief facts of the prosecution case are that on 19-5-2009 complainant SHO/SI Muzamil Ahmed of Police Station, ANF, Sukkur departed from his Police Station vide daily diary Entry No,5 at 1330 hours and he was busy in patrolling duty within the area of Naushahro Feroze. That on or about 1610 hours he received spy information at Halani Bus Stop that one Notorious Drug Dealer Riaz Hussain Shah alias Jaga and his brother Syed Zahid Hussain Shah are moving some huge quantity of narcotics from their house in Qazi Mohalla, Halani to some other place and he took immediate action after informing his superiors and surrounded the house of appellant Riaz Hussain Shah, and found the present appellants there. From the appellant No,1 28 (twenty eight) Kgs hashish and 2.5 Kgs. Opium was recovered, while from the appellant No,2, 10 (ten) Kgs. Hashish was recovered.
3. After completion of the investigation, challan was submitted against the appellants before the Court of Special Judge for C.N.S., Naushahro Feroze. Charge was framed against the appellants on 12-8-2009 to which they pleaded not guilty and claimed to be tried.
4. In support of its case, the prosecution examined the complainant SHO/SI Muzamil Ahmed as P.W.1, Exh.5. He deposed the above facts and produced memo. Of recovery and arrest. He also produced the F.I.R. Registered by him, the letter dated 20-5-2009 issued by him to the Chemical Examiner along with samples and also the report of the Chemical Examiner dated 25-5-2009. He also produced the copy of the Roznamcha Entry dated 19-5-2009 regarding his departure and arrival at the Police Station. Ayaz Ahmed P.W.2, who was one of the mashirs, was also examined by the prosecution. He also reiterated the facts as per the F.I.R.
5. Both the above prosecution witnesses were duly cross-examined at length by the appellants.
The thrust of the defence was that on account of some rivalry the appellants were being subjected to this false case and in fact the narcotics were actually recovered from some other person, who was let off after receiving a heavy amount and thereafter the same quantity was foisted upon them. Thereafter the prosecution closed its side vide statement dated 6-1-2011.
6. The statements of appellants under section 342, Cr.P.C. Were recorded in which they reiterated that the police officials were annoyed with their father and therefore such huge amount has been foisted upon them. Appellant Syed Riaz Hussain Shah was examined on oath and he stated in his examination in chief that on 19-5-2009 he had appeared in the Sessions Court, Naushahro Feroze in connection with a case and he was apprehended when he was leaving the Court. He further stated that his brother was also arrested by the police earlier and then they both were shifted to Sukkur and false allegations were levelled against them. He claimed that Rs,500,000 were demanded from them and upon nonpayment, they were booked in this false case. He produced a case diary dated 19-5-2009 of Special Case No,11 of 2007 of the Court of Special Judge for C.N.S., Naushahro Feroze to prove that he was in Court on that day. He also produced a copy of application dated 19-6-2009, moved by his father for legal action against ANF Staff, Sukkur.
Appellant Syed Zahid Husain Shah was also examined on oath and he said that on 19-5-2009 at about 1330 hours, there was no electricity in the area and he was sitting outside his house with one Shah Muhammad when suddenly police came there and by levelling a false allegation, apprehended him. He further said that then the police took him to District Court and his brother was also arrested and both were shifted to Sukkur. He further repeated that the police officials demanded Rs,500,000 as illegal gratification and since they were unable to pay therefore, they have been implicated in this false case.
7. The appellants in their defense also examined one Shah Nawaz Soomro, who deposed that he resides in Karam Shah Mohalla and was available in the street on 19-5-2009 as there was no electricity. He further stated that appellant Syed Zahid Hussain Shah also came out from his house and they were talking to each other when the police party appeared and made the above referred allegation against the appellant Zahid Hussain Shah. He further stated that he told the police party that Zahid Hussain Shah is enjoying good reputation in the area and thereafter he went back to his house. Whereas the other defence witnesses were given-up. After hearing the arguments the trial Court convicted both the appellants vide the impugned judgment.
8. The counsel for the appellants has argued that due to enmity with police this false case has been registered. He has further argued that the Chemical Examiner has not returned the empty Khaki envelopes, which contained the samples and this cast doubts over the prosecution story. He has also submitted that the case property was not de-sealed at the trial and was not shown to the witnesses. His further submission is that no lady police was associated and no warrant was obtained before entering the house of the appellants. He has finally argued that the appellants could only be convicted on the basis of quantity which was sent to the Chemical Examiner. In support of his contentions he has relied upon the decision reported as 2007 YLR 3087 (Shafiullah v.
The State).
9. The Special Prosecutor ANF has argued that the conviction is proper as huge quantity of narcotics has been recovered from the appellants and the same was duly produced at trial and examined. He has also submitted that the appellants are real brothers and the appellant No.1 was also a previous convict for possessing 10 Kg of Charas, and that their two sisters are also facing narcotics cases. He has placed reliance on the decision given in the case of 2008 SCMR 1254 (Zafar v. The State).
10. We have heard the arguments and have perused the record as well as the decisions relied upon. In the evidence led by the prosecution, both the prosecution witnesses have deposed in detail about the day of the incident and their evidence is consistent with each other.. They were both subjected to lengthy and exhaustive cross-examination but the defence was unable to shatter the evidence led, which is otherwise confidence inspiring. It was duly deposed that the appellants were available at their home and a huge quantity of narcotics was recovered and in our view as per section 29 of the C.N.S. Act, 1997 the prosecution has discharged its onus. The prosecution has also successfully established the recovery of the contraband, the source of information, and it has also been consistent about the departure from Police Station and arrival at the spot, and thus evidence in our view does not suffer from any contradiction.
11. The prosecution has been able to discharge its burden as provided under section 29 of the C.N.S. Act, 1997, as the accused have been unable to disprove the allegations levelled upon them. As regards the application of section 103, Cr.P.C., section 25 of the C.N.S. Act, 1997 is very clear as section 103, Cr.P.C. Has been excluded and there are a number of judgments of the superior Courts on this point. It is also noted that the appellant No,1 is a previous convict.
12. We are also fortified in this regard by judgments of the superior/apex Courts given in the cases of 2007 SCMR 1378 (Muhammad Irshad v. The State), 2007 SCMR 1435 (Wajid Khan v. The State), and 2010 SCMR 27 (Ismail v. The State). In the above referred judgments it has been held that technicalities of procedural nature or otherwise are to be ignored as Special Law prevails over General Law and if no material discrepancy is otherwise shown then procedural lapses, if any, do not B help the case of the defense. Where the prosecution witnesses have fully implicated the accused and there is no reason for false involvement then the trial Court was left with no option but to award conviction.
13. In view of the above, we are of the view that there is no illegality, impropriety, misreading or non- reading of evidence, and that the provisions of section 9(c), C.N.S. Act, 1997 have been fully proved by the prosecution and consequently the conviction and the sentence awarded to the appellants is just and proper. Resultantly the sentences awarded are maintained and the appeal is hereby dismissed.