TANZIL-UR-RAHMAN, C.J.--- This Appeal arises out of judgment, dated 30-7-1990 passed by the learned District and Sessions Judge Karachi (South) in Sessions case No.488 of 1988 (F.I.R. No.30 of 1988, P.S. P.N.C.B., Defence, Karachi), whereby he convicted the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him to suffer imprisonment for life, with whipping numbering .20 stripes and pay line of rupees one lac. In default of payment of fine to suffer R.I. For two years more, with benefit as provided under section 382-B, Cr.P.C.
2. The brief facts of the case are that on 17-7-1988 at about 6.15 p.m. F.I.O. Liaquat Ali of PNCB Defence Karachi, lodged his F.I.R. Wherein it was stated that he alongwith other members of staff, under the supervision of Group Leader Azizullah Mangi of PNCB Defence Karachi, set out for patrolling in their beat in Government vehicle No.GP-3464. While patrolling, he received spy information-that two persons with huge quantity of heroin powder will be coming in Suzuki Car No.250-262 to hand over the same to someone at Sheraton Hotel. On receiving such information, they arranged for two private persons; Tariq Shaikh and Malik Ashraf and came to the pointed place. At about 5.00 p.m. They saw the car coming from Metropole Hotel side which was stopped in front of the Commissioner's Office. After introducing himself and his companions to the two persons silting in the car enquired their names. The person sitting on driver's seat disclosed his name as Naeem Butt, the accused/convict-appellant, and the other person sitting in front by his side disclosed his name as Noor .Ian. Khan, co-accused/absconder. They saw two suit-cases lying on the rear seat of the car, which the co-accused/absconder, Noor Jan Khan claimed to be his own. On opening the said two suit-cases, they found 25 white cloth bags lying in each suit-case i.e. 50 bags in all containing 50 bags of heroin: He weighed those bags and the weight of each bag came to be one kilogram in each bag, totally fifty kilograms. On opening the dickey of the car in which a small brief-case was lying, which was claimed by Naeem Butt, the appellant to be his own, got opened through Naeem Butt and was found fifteen white cloth bags containing heroin powder.
They weighed the same also and the weight came to be one kilogram in each bag, total 15 kilograms. They took out samples from each bag and scaled the same separately. They also sealed the bags. They arrested the accused Naeem Butt and Noor Jan Khan, co- accused/absconder, secured one N.I.C. No.622-56-0363$6 and Rs.50 from co-accused Noor Jan Khan and Rs.35 from the appellant. They also secured Suzuki Car No.250-262. They prepared such Mashirnama (Exh.10) of arrest of both the accused and recovery. Then they brought the accused and the property at the police station where the above said FIR was lodged by 'Field Investigation Officer Liaquat Ali (Exh.l8). He deposited the heroin powder in Malkhana and sent the sample to Islamabad Laboratory for chemical examination and report. He examined the witnesses, Tariq, Malik Ashraf, Azizullah Mangi, Irshad Ali Memon, Abdul Nabi Solangi, Ghulam Abbas Memon and others at the police station. Judicial remand of both the accused was taken. However, on 23-7-1988 co-accused Noor Jan Khan absconded away from the police custody. On 30-7-1988, the appellant Naeem Butt was challaned in the Court of A.D.M. Karachi South, showing the accused Noor Jan Khan as absconding. The learned A.D.M. Karachi South sent up the accused to the Court of learned District and Sessions Judge, Karcahi South for trial. The learned trial Judge framed the charge (Exh.7) and after recording his plea of not guilty (Exh.8) proceeded with the case:
3. The prosecution in all examined seven witnesses: P.W.1 Tariq Masood, a private person and Mashir of recovery, P.W.2 Ghulam Abbas, Sub Inspector, P.N.C.B. Defence Karachi South, P.W.3 Abdul Nabi Solangi, Field Investigation Officer, P.N.C.B. Defence Karachi. P.W.4 Azizullah Qalander Bux, Group Leader, P.N.C.B. Defence Station Karachi, P.W.5 Irshad Ali Memon, Field Investigation Officer, P.N.C.B.. Sukkur, P.W.6 Malik Muhammad Saleem, a private person and Mashir of recovery and P.W.7 S. Liaquat Ali Zaidi, Field Investigation Officer, P.N.C.B. Defence Karachi and Investigating Officer.
4. The statement of the appellant was recorded under section 342, Cr.P.C. He was also examined under section 340(2), Cr.P.C. No defence witness was, however, examined by him.
5. Mr. M.I. Memon, learned counsel for the appellant raised the following contentions;---
(i) The two Mashirs Tariq and Malik Muhammad Ashraf P.Ws 1 and 6 have not supported the prosecution case;
(ii) The prosecution evidence is in-consistent.
(iii) The provision of section 103, Cr.P.C. Has been violated; and
(iv) Lastly, he pleaded for reduction of sentence.
6. It is true that the two Mashirs who are private persons have not supported the prosecution. In fact, P.W.1 Tariq was declared hostile. He gave complete go-by to the earlier statement recorded under section 161, Cr.P.C. He, however, admitted his signatures on the recovery memo but stated that it was obtained on blank paper. As regards the other Mashir, Malik Muhammad Ashraf (P.W.6), he admitted in the cross-examination that he is friendly to Liaquat Zaidi and stated that the memo of recovery (Exh.10) was read out to him at the police station. He, however, did not remember the number of packets but they were many. The Mashirs seem to have been either won over or over- awed by the drug traffickers as happened in a number of cases in which private persons are cited as Mashirs. In the instant case, not supporting the prosecution case by these two Mashirs does not, therefore, appear to be a peculiar phenomena. There is nothing unusual as to the behaviour of the private Mashirs in the instant case as well. We cannot, however, brush aside the factum of recovery merely because the two private Mashirs have gone back from their earlier statements, if the factum of recovery is supported by the other evidence on record. While examining the remaining evidence, it is found that the factum of recovery, in detail, is supported by P.W.2 Ghulam Abbas, P.Ws. Abdul Nabi Solangi and Azizullah Qalander Bux have also consistently deposed about the recovery in the same terms as that P.W. Ghulam Abbas. Therefore, even if the evidence of P.Ws. 1 and 6 is excluded the factum of recovery of heroin in 15 bags weighing one kilogram each stands proved to the hilt against the appellant.
7. As regards the second contention of the learned counsel that the prosecution evidence is inconsistent, he could refer only the inconsistency in the statements of P.W.2 and P.W.7 about the number of vehicles. P.W.7 deposed that they were in one vehicle whereas P.W.2 deposed that the police party was in two vehicles. The learned counsel for the appellant tried to show some discrepancy as to the date of sending the samples to National Institute of Health (Drugs Control and Research Division) Islamabad, but in vain. The covering letter (Exh.19), dated 14-9-1988 sent by the National Institute of Health (Drugs Control and Research Division) Islamabad to the Group Leader, Joint Narcotics Task Force Unit II Defence Housing Society, Karachi, in the instant case, refers to his letter No.5(12)/PNCB/JNTF, 11/88, dated 18-7-1988 enclosing therewith 65 reports of the 65 samples No.465-N/88 to 529-N/88. He also tried to show some inconsistency about the place of occurrence that one witness stated to be in front of Sindh Club while the other stated to be in front of the Commissioner's Office which are situated on the same road on either side of it. These discrepancies are of little significance. It is not that all sorts of inconsistencies are taken into account to create doubt. It is only the material inconsistency in the statements of witnesses which goes to 8 the root of the matter and is worth consideration for deciding the guilt or otherwise of the accused. We have read the entire evidence that has come on record with the learned counsel and barring the above three discrepancies which are of no significance or some other discrepancy that might be there, there is no material discrepancy in the statements of the witnesses so far as the factum of recovery, place of occurrence, quantity of the heroin recovered, the manner of recovery and, therefore, the second contention of the learned counsel about the inconsistency, as pleaded, is without any force.
8. The third contention of the learned counsel that the provisions of section 103, Cr.P.C., have been violated is also of no worth. Undoubtedly, under section 2(i) of the Order, vehicle has been included within the definition of place but search and recovery from the possession of the person travelling in the moving vehicle cannot be said to be violative of the provisions of section 103, Cr.P.C., unless it is shown that there is enmity between the police officials who appeared as witnesses and the accused or there is an ill-will on the part of the said police officials. For this view, reliance may be placed on the case reported as Syed Muhammad v. The State PLD 1990 SC 1176. In the instant case, the appellant has admitted categorically in his statement that "it is correct that there was no enmity of complainant Liaquat Zaidi or other Narcotics Police Staff with me prior to this." As such the evidence of the officials of the Narcotics Department cannot be disbelieved merely because they are officials.Furthermore, the heroin recovered from the possession of the appellant is fifteen kilograms. It being a huge quantity, it cannot be inferred reasonably from the facts and circumstances that the same might have been foisted upon the-appellant. The defence plea has, therefore, been rightly disbelieved by the learned trial Judge.
9. Lastly, the learned counsel for the appellant pleaded for reduction of sentence. We find no justification to interfere with the quantum of sentence awarded by the learned trial Judge which is legal and proper in the facts and circumstances of the case.
10. For the above discussion, the conviction and sentences are maintained and the appeal is dismissed.
11. Before parting with the case, we would like to observe that Mr. M.I. Memon, learned counsel for the appellant, stated at the bar that the co-- accused/absconder, Noor Jan Khan Magsi has been apprehended in another case and is presently lodged in District Jail Sukkur. The learned counsel for the State was not in a position to affirm or deny the statement, however, Noor Jan Khan Magsi, co- accused/absconder, is confined in District Jail Sukkur, there should be no impediment to proceed against him under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, under FIR No.30/88, Police Station, PNCB, Defence Karachi. A copy of this judgment be sent by the Assistant Registrar of this Court at Karachi to the Home Secretary, Government of Sindh as well as Director General, P.N.C.B., Islamabad, with a direction that this Court will be kept informed of the action taken in the matter.
N.H.O./700/FSC