1. IFTIKHAR MUHAMMAD CHAUDHARY, J.--- This appeal has been filed under section' 45 of Control of Narcotics Substances Ordinance read with section 410, Cr.P.C. against the judgment, dated 28-2- 1998 passed by learned Special Judge, Noushki whereby appellant Nasrullah son of Muhammad, caste Muhammad Hassni has been convicted/sentenced under section 9 of the Ordinance to life imprisonment. The prosecution case is that on 13-10-1997 P.W. Major Rehmat Ali Shah lodged F.I.R.
2. Exh.P.1/B bearing No.54 of 1997 with Tehsildar Nokundi under sections 6 and 7 of Narcotics Substance Control Act against appellant Nasrullah alleging that on said date in pursuance of a secret information to the effect that during the preceding night at 1-00 a.m. a vehicle brought narcotics and unloaded it in the house of appellant. He alongwith his staff as well as Dafedar Levies Abdul Sattar son of Jangi Khan raided the house of convict and recovered 16 bags of opium (16 x 10 = 160 Kg. total). Each bag had 10 Kg. and in this manner the 160 Kg. of opium besides on personal search of appellant Iranian currency, i.e. 2150 Tummons were also recovered. Inventory of the recovery was made in presence of appellant who as a token of accepting the recovery put his signatures on it. Accused was arrested on the spot, therefore, Murasala prepared at the spot was sent through Defedar Abdul Sattar alongwith accused and recovered currency for registration of the case.
3. It may be noted that P.W. Mir Zahir Khan instead of incorporating contents of the Murasala in F.I.R. as a whole only recorded its substance. On completion of investigation vide final report Exh.P.5/B he forwarded the case to Special Judge, Noushki. Learned trial Court on having gone through the material so placed before him read out charge to appellant on 29-12-1997 under sections 6, 7, 8 and 9 under Control of Narcotics Substance Ordinance read with sections 3 and 4 of Prohibition (Enforcement of Hudood) Order, 1979. Appellant did not plead guilty, therefore, prosecution to substantiate the accusations examined:-- (i)P.W. Major Rehmat Ali Shah; (11)P.W. Nadir Khan Lance Nike; (iii)P.W. Abdul Sattar, Dafedar Levies; (iv)P.W. Syed Abdullah, Chemical Expert. He produced report Exh.P.4/A; (v)P.W. Mir Zahir Khan son of Sardar Mehrullah Khan, Tehsildar Noukundi/Investigating Officer.
4. Appellant denied the prosecution case in his statement under section 342, Cr.P.C. stating therein that Dafedar Abdul Sattar is his rival, therefore, the prosecution witnesses deposed against him. In the statement on oath plea of appellant was that he was called through a child by Malitia people when he was present in the house of Agha Muhammad and when he came out of his house and went towards them; an Officer of Malitia and Dafedar Abdul Sattar called him and he was made to sit in the vehicle and then they took him alongwith them. The place from where he was arrested by the Malitia people is situated at 500--600 paces from his house. He also deposed that no opium was recovered from his house. He had worked as labourer with Dafedar Abdul Sattar on his land and he demanded Rs.1,300 as his labour charges from him, but he was not paying the same and due to this he has developed rivalry against him. In defence he also produced to Agha Muhammad.
5. Learned trial Court on completion of trial found the appellant guilty for the offence under section 9 of Control of Narcotics Substance Ordinance and sentenced him to life imprisonment, as such instant appeal has been filed.
6. Mr. M.A. Chishti, learned counsel appeared on behalf of appellant; whereas Mr. Tariq Mehmood, Advocate represented to State through Anti-- Narcotics Force.
7. Learned counsel for appellant contended that the trial Court took cognizance of the offence under sections. 6, 7 and 8 of Narcotics Control Substances Ordinance (N.C.S.O.) and had drawn proceedings under the Ordinance, although it had been repealed by the Control of Narcotics Substance Act, 1997, published in the Gazette of Pakistan Extraordinary Part I on 11-7-1997, therefore, the repealed law had rendered the whole proceedings illegal, as defect is not curable under section 537, Cr.P.C.
8. On the other hand learned counsel for the State argued that error being pointed out by appellant's counsel is curable under section 225 read with section 537, Cr.P.C. He relied on PLD 1972 Lah. 177 and PLD 1984 Pesh. 51.
9. In instant case admittedly offence was allegedly committed by appellant on 13-10-1997 when Control of Narcotics Substance Ordinance, 1997 published on 7-3-1997 (Ordinance XLIII of 1997) has already been repealed/replaced by the Control of Narcotics Substance Act, 1997 (Act XXV of 1997)
10. (hereinafter referred to as the "Act of 1997"). As it has been mentioned hereinabove that vide Murasala Exh.P.l/B P.W. Major Rehmat Ali Shah (complainant) 75-Wing Commander Kharan Rifles requested to Tehsildar Noukundi for registration of the case under sections 6, 7 and 9 of Narcotics Control Act-Ordinance, 1995. But P.W. Mir Zahir Khan did not incorporate sections 6, 7 and 8 of the Act in the F.I.R. and just mentioned therein "4 Hadd Prohibition Drugs". Similarly challan was forwarded by Assistant District Attorney, for trial of the accused under sections 3 and 4 of Hadd Ordinance. On receipt of challan alongwith evidence recorded during investigation learned Special Judge, framed charge, dated 29-9-1997 against the appellant under sections 6, 7, 8 and 9 of the C.N.S.O. read with sections 3 and 4 of Prohibition (Enforcement of Hudood) Order, 1979. The accused was duly represented by the counsel who did not point out that Ordinancehas been replaced by the Act of Parliament, therefore, instead of mentioning the word "Ordinance", it may be written as the Act of 1997.
11. It may be noted at this stage that notwithstanding the fact that under which provisions of law challan had been submitted by the Investigating Agency, the Court seized with the matter is not bound to depend on the opinion of the Investigating Agency as it has independent jurisdiction to decide that under which provision of law cognizance of the offence has to be taken. There could be cases where Investigating Agency rightly or wrongly had mentioned particular provisions under which the accused sent up to face trial has been found prima facie guilty for the commission of crime, but the Court on its independent application of judicial mind can take cognizance of the offence under the provisions other than incorporated in the F.I.R. or in the final report by the Investigating Agency. Instant case has been tried by the Special Court appointed under the Act of 1997, therefore, the question for consideration would be that by mentioning N.C.S.O. instead of "Act of 1997" whether the Court has committed error on account of which prejudice has been caused to appellant. It may be noted that in view of background referred to hereinabove particularly the contents of Murasala EXh.P.1/B disclosed that from ab initio request so made by P.W.1 was for registration of the case against convict under the Act of 1997 and when charge was read over to him no objection of whatsoever nature was raised in this behalf till completion of the trial which culminated in the impugned order.
12. Now the question would be whether error in writing "Ordinance" in the charge instead of "Act" has caused any prejudice to appellant or not? To determine this question comparative study of sections 6, 7 and 8 of the repealed Ordinance of 1997 and the same sections of the Act revealed that they are identical in substance in both the statutes. However, there is beneficial difference in section 9 of the Ordinance and the Act of 1997 respectively. For the sake of convenience comparative table of sections 6, 7 and 8 in both the statutes is reproduced hereinbelow:-- ORDINANCE Section 6. Prohibition of possession of narcotic drugs etc. of narcotic drugs etc.---- No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliveron any terms whatsoever, transport, despatch, any narcotic drug,psychotropic substance or controlled substance, except for medical; scientific or industrial purposes in the manner and subject to such conditions as may bespecified by or under this Ordinance or any other law for the time being in force.
13. Section 7. Prohibition of, import or export of narcotic drugs, etc. (1)No one shall-- (a)import into Pakistan; (b)export from Pakistan; (c)transport within Pakistan; or
(d) Tranship; anynarcotic drug, psychotropic substance or controlled substance, save in accordance with the rules made under subsection (2) and with the conditions of any licence, permit orACT Section 6. Prohibition of possession No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, despatch, any narcotic drug, psychotropicsubstance or controlled substance, except for medical, scientific or industrial purposes in the manner and subject to such conditions as may be specified by or under this Ordinanceor any other law for the time being in force.
14. Section 7.Prohibition of import or export of narcotic drugs, etc. ----
(1) No one shall---
(a) import into Pakistan;
(b) export from Pakistan;
(c) transport within Pakistan; or
(d) tranship; any narcotic drug, psychotropic substance or controlled substance, save in accordance with rules made under subsection (2) and with the conditions of any licence, permit or authorisation for that purpose which may be required to be obtained under those rules.
(2) The Federal Government may make rules permitting and regulating the import into and authorization for that purpose which may be required to be obtained under those rules.
15. (2)The Federal Government may make rules permitting and regulating the import into and export from Pakistan, transport within Pakistan and transhipment of narcotic drugs,psychotropic substances or controlled substances and such rules may prescribe the ports or places at which any kind of narcotic drug, psychotropic substance or controlled substance may be imported, exported, transported within Pakistan or, transhiped, the form and conditions of licence, permit or authorities by which such licences, permits or authorization may be granted, the fees that may be charged therefor, any other matter required to have effective control of the Federal Government over such import, export, transportationand transhipment.
16. 8.Prohibition on tracking or financing the trafficking of narcotic drugs etc. --- No one shall-- (a)organize, manage, traffic in, or finance the import, transport, manufacturing trafficking of, narcotic drugs, psychotropic substances or controlled substances; or (b)use violence or arms for committing or attempt to commit an offence punishable under this Ordinance.export from Pakistan, transport within Pakistan and transhipment of narcotic drugs, psychotropic substances or controlled substances and such rules may prescribe the ports or places at which any kind of narcotic drug, psychotropic substance or controlled substance may be imported, exported, transported within Pakistan or transhiped, the form and conditions of licence, permit or authorities by which such licences, permits or authorisation may be granted, the fees that may be charged therefor, any other matter required to have effective control of the Federal Government over such import, export, transportation and transhipment.
17. Section 8.Prohibition on tracking or financing the tracking of narcotic drugs etc.---No one shall---
(a) organise, manage, traffic in, or finance the import, transport, manufacturing or trafficking of, narcotic drugs,psychotropic substances or controlled substances; or (b)use violence or arms for committing or attempt to commit an offence punishable under this Act.
18. Perusal of section 9 of the Ordinance indicates that previously as per terms of its subsection (b) imprisonment to the extent of 7 years was provided, but with minimum sentence of 3 years with fine, if 100 grams in case of heroin, cocaine, opium derivatives and coca derivates whatsoever name or composition or 200 grams in case of opium, coca leave or psychotropic substance with whatever name or composition and 1 Kg. or equivalent in case of any other narcotics, drug or controlled substance not specified in sub-clauses (i) and (ii) are recovered; whereas in section 9 of the Act of 1997 no minimum sentence has been provided and it was left to the discretion of the Court to award imprisonment which may extend to seven years and shall also be liable to fine if the quantity of narcotics, drugs, psychotropic substance or controlled substance exceeds 100 grams, but does not exceed 1 Kg. In other words in subsection (b) of section 9 beneficial change was recorded, therefore, accused instead of claiming its benefit cannot argue that he has been wrongly tried. In addition to it as far as change/amendment in subsection (b) of section 9 is concerned it is not applicable on the fact of the case in hand because appellant's case is covered under section 9(c) whereas proviso has been enacted casting a mandatory duty upon the Court that if the quantity exceeds 10 Kgs. the punishment shall not be less than life; whereas under its repealed provision, i.e. section (c) of the Ordinance the punishment was death or imprisonment for life and shall also be liable to fine which shall not be less than Rs.10,00,000, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limit specified in clause (b).
19. Now turning towards section 225, Criminal Procedure Code it is to be seen that this section speaks that no error to stating either offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be, at any stage of the case, material unless the accused was in fact misled by such error or omission and it has caused failure of justice. At this stage reference to section 537, Cr.P.C. would be beneficial which deals in respect of findings or sentence reversable by: reason of error or omission in charge or other proceedings. According to this section, as well the orders/sentence can be reversed if the error, omission or irregularity in the mode of trial etc. in fact, has occasioned a failure of justice and in terms of explanation attached thereto the Court shall have regard to the fact where the objection could and should have been raised at any earlier stage in the proceedings.
20. Learned counsel for the appellant has failed to point out that what prejudice or injustice has been caused to convict by mentioning "Ordinance" in the charge instead of "Act" of 1997, particularly when there is no substantial difference in the charging sections namely, sections 6, 7 and 8 of the - Ordinance as well as Act of 1997 respectively and as far as section 9 in the Ordinance is concerned it only deals with the punishment. It may be' noted that as far as mentioning of the section in the charge-sheet is concerned; it is not material because requirement is as to whether substance of allegations with reference to the commission of crime, day, time etc. has been put to the accused and if the' charge on applying all the tests under the Criminal Procedure Code, can be held to be - valid and correct in that case trial cannot be held illegal merely by writing provisions of a repealed Ordinance. In forming this view we are fortified with the judgment reported in Merajuddin and, 3 others v. The State PLD 1972 Lah. 177, PLD 1984 Pesh. 51.
21. Mr. M.A. Chishti, learned Advocate then argued that as per report of Chemical Analyser Exh.P.4/A the material so sent for examination falls within the category of "Opium baked", therefore, according to the definitions of controlled substance, narcotics, drug, psychotropic substance under sections 2-K, 2-S and 2-Z read with the Schedule is not cognizable by the Special Court under the Act of 1997 and expressions employed in criminal law by the law givers has to be construed strictly and no extending meaning can be given to them. He further stated that although the word "opium" has been defined under section 2-T of the Act, but it does not cover to "opium baked" as for it a separate definition has been given by section 2(U) under the heading "Opium derivatives". Learned counsel to substantiate his contentions made reference to Interpretation of Statutes by Bindra, 7th Edn. p.48.
22. Mr.'Tariq Mehmood controverting to the stand of appellant's counsel stated that sections 6, 7 and 8 of the Ordinance as well as the "Act" have commonly used three expressions namely, narcotics, drug, psychotropic substances and controlled substances. According to him the definition of Controlled Substances under section 2-K covers to "Opium baked" as it defines any substances which may be used for production or manufacture of narcotics, drugs or psychotropic substances.
23. He further stated that to understand the process of manufacture reliance has to be placed on section 2(P) as well.
24. There is no cavil that all the three charging sections namely, sections 6, 7 and 8 of the, Act of 1997 which deals with, prohibition of possession of narcotics, drugs, etc., prohibition of import or export of narcotics, drugs etc. and prohibition on trafficking or financing of narcotics, drugs etc. respectively have in their folds following three important expressions:-- (i)narcotic drug. (ii) psychotropic substances; (iii) controlled substances, except for medical, scientific or industrial purposes; Sections 2-S and 2-K have defined to narcotic drugs and controlled substances. As they are relevant for disposal of instant appeal, therefore, definitions of these two expressions are reproduced hereinbelow:-- "Section 2------------------------------------------------------------------.
25. (K)'Controlled substance' means any substance which may be used for the production or manufacture of narcotic drugs or psychotropic substances; (S)'Narcotic drugs means coca leaf, cannabis, heroin, opium, poppy straw and all manufactured drugs; As far as definition of psychotropic substance is concerned it is not relevant, therefore, the same is not being discussed.
26. The definition of narcotic drugs defines to "opium" only and it has not defined to the "opium derivatives". As far as "opium means" is concerned it is defined under section 2-T which does not speak in respect of prepared opium (baked opium); whereas definition of "controlled substances" means any substance which may be used for production or manufacture of narcotic drug or psychotropic substances. The word "manufacture" used under this expression attracts to section 2(P) which is also reproduced hereinbelow for the sake of convenience:-- "Section 2 --- 'manufacture', in relation to narcotic drugs or psychotropic substances, includes---
(i) all processes by which such drugs or substances may be obtained;
(ii) refining of such drugs or substances;
(iii) transformation of such drugs or substances; and
(iv) making or preparing such drugs or substances; A careful perusal of above definition leads us to hold that in relation to narcotic drugs, opium derivatives also falls under the definition of C "manufacture". Thus, to define the "Opium derivatives" we have-to refer to section 2(U) according to which opium derivative includes prepared opium, i.e. any product of opium obtained by any series of operations designed to transform Y opium into an extract suitable for smoking and gross or other residue remaining after opium as smoked.
27. We are in agreement with the learned counsel that in criminal law definition clause is to be construed strictly as it has been stated in the Interpretation of Statutes by Bindra, 7th Edn. 1984. In the same edition under the heading "definition" commentator has discussed following principle:-- "The definition given in an Act must be substituted for the word 'defined' wherever it occurs in the Act, but there is a well-known canon of construction that in certain circumstances when a strict adherence to the rule would lead to an anomaly or repugnance the rule will apply only when there is nothing repugnant to it in the context."
28. Applying the above principle on the case in hand while making reference to "controlled substances" definition of "opium derivatives" which is ordinarily obtained after the process of manufacturing as defined under section 2-P can be applied, therefore it would also include prepared opium. Thus, for these reasons we are of the opinion that "opium baked" is covered by the "controlled substances" as such is cognizable by the Special Court constituted under the Act of 1997.
29. Learned counsel for appellant then contended that P.W.1 admittedly had taken out six grams sample out of only one packet containing 10 Kg. instead of drawing samples from each packet, therefore, without prejudice to his any other plea it would be deemed that only 10 Kg. opium has been recovered from the possession of appellant, therefore, he was not liable for life imprisonment under the provisions of section 9 of the Act of 1997 and the trial Court could have not awarded him sentence more than 14 years. Learned counsel for the State contended that it is not the case ofappellant before the trial Court that opium was not recovered at all by P.W.1 Major Rehmat Ali Shah. Actually his case was as it flows from the trend of cross-examination that opium was recovered, but it does not belong to him as at that time he was in the house of D.W.
30. Agha Muhammad from where he was arrested and the reason of his arrest was rivalry with Dafedar Abdul Sattar though this plea was introduced at a highly belated stage when the statement of accused was being recorded under sections 342, Cr.P.C. and 340(2), Cr.P.C. therefore, examining samples by the Investigating Officer from each packet was not mandatory. Had his plea been vice versa, then argument so advanced by appellant's counsel might have carried some weight. He further stated that under section 29 of the Act of 1997 once it is established that the accused had possession of illicit articles then burden shifts upon him to establish before the Court that he was not found in possession of narcotic drugs or controlled substances.
31. Learned counsel further stated that once in the instant case prosecution has established possession from the house of accused and if he had doubt about the contents of the bags he could have made request to the trial Court for examination of all the remaining bags to show that contents thereof are not narcotic drugs or controlled substances particularly when the plea of appellant's counsel is that as per the contents of final report submitted by P.W. Mir Zahir Khan Exh.P.5/B that it was not the accused, but someone else had thrown narcotics/controlled substances in his house during night by deceiving to his wife on the pretext that the bundles contained clothes. Learned counsel made reference to 1988 SCMR 1899, PLD 1990 SC 1088, 1176 and 1186.
32. There is no doubt that P.W. Rehmat Ali had taken out samples only from one packet of 10 Kg. to determine whether it contained "opium" or not. As far as remaining 15 packets are concerned no sample was taken from them. In respect of the recovered samples P.W. Syed Abdullah produced report Exh.P.4/A. In examination-in-chief he stated that the material sent to him for analysis was found to be "baked opium". His statement in cross-examination was not challenged at all because he was not questioned by the learned counsel for appellant appearing during trial. So. in view of his unchallenged statement there is no doubt that one bundle out of which the sample was taken contained opium baked. Now the question is that what were the contents of remaining 15 bundlesand whether the appellant during cross-examination on the witnesses or his own statement had denied that contents of the bundles Were not opium? In this behalf reference may be made to the statement of P.W. Major Rehmatullah who deposed that from the house of accused Nasrullah 16 bags of opium were recovered. Each bag contairied 10 Kgs. of opium. The total quantity of opium on weighing was 160 Kgs. Recovered opium was taken into possession vide a recovery memo. EXh.P.1/A. It may be noted that the recovery memo. bears thumb-impression of appellant besides the signatures of P.W. Abdul Sattar Dafedar levies and Lance Nike Nawab Khan, Nadir Khan as well as signatures of Major Rehmat Ali Shah. The witness further stated that 16 bags were kept into a parcel which were sealed by him under his signatures. He produced these parcels as Articles P.1 to- P.16 and on opening them produced opium as Article P.17 to P.32. He further deposed that before sealing the opium out of one bag some material for the purpose of Chemical Analysis was taken out which was sent for Chemical Analysis through Commandant.
33. It is important to note that in cross-examination on behalf of the accused it was brought on record that at the time of raid besides appellant, his wife and children no one else was present. It was suggested that the house was not inhabited from where the recovery was affected. The witness denied this suggestion. The witness further agreed that the recovered opium was weighed at Nokundi and seals on parcels were also applied at Nokundi.
34. Similarly P.W. Nadir Khan, Lance Nike stated that raid was conducted at the house of appellant in Killi Rajay during course whereof 16 bags of opium were recovered. Each bag had 10 Kgs. opium and in this way total 160 Kgs. opium was recovered. In cross-examination it was asked to the witness that he had not put his signatures or mark of identification on the bags of opium which he replied in affirmative. In the same context P. W. Abdul Sattar stated that 16 bags of opium were recovered from the house of accused which was taken into possession and alongwith the recovered opium appellant was also arrested and was taken to Nokundi where the bags were weighed and total 160 Kgs. opium was found in them. In cross-examination no suggestion was put to this witness that on account of rivalry he got the accused involved in the case.
35. The evidence of these three witnesses suggest to draw irresistable conclusions that it is not the case of appellant that from all 16 bags including the one from which the samples were drawn the contents were other than opium. So, when convict himself is not disputing the recovery of illicit articles then the prosecution has no obligation to prove that each bag contained opium because in other words appellant has accepted the recovery of the controlled substance in his possession, therefore, in view of such peculiar situation section 29 of the Act, of 1997 comes into play according to which in trials under this Act, it may be presumed unless and until the contrary is proved that accused has committed an. offence finder this Act. This section in substance corresponds to section 187 of the Customs Act. In this behalf Honourable Supreme Court in the judgment reported in State v. Muhammad Hayyat PLD 1992 SC 393 has held that it is 'an elementary principle of jurisprudence that the burden is on the person who asserts the affirmative of any issue. It is for the prosecution to prove the allegations against the accused and the onus is never shifted during trial but the departure from general rule has been made from these provisions. The prosecution has to establish only that the goods are seized under this Act in reasonable belief that they are smuggled.
36. In order to draw a presumption under section 187 of the Customs Act, two ingredients must be proved; firstly that there is reasonable belief that the goods are smuggled and secondly the goods have been seized from the accused. In this behalf with benefit reference can also be made in the judgment in the case of State through Deputy Attorney-General, Peshawar v. Banda Gul and 2 others 1993 SCMR 311.
37. Applying these principles on the case in hand we feel no hesitation in concluding that once the - accused had not denied specifically the recovery of opium, burden was upon him to dislodge the presumption that whatever is recovered other than the material sample of which was sent for chemical analyser was not illicit article and to shift this burden he could have made request to the trial Court or even before us for examination of the remaining recovered articles. In this behalf observations of Honourable Supreme Court in the case of Tasleem Khan v. The State PLD 1990 SC 1088 are highly instructive, thus, relevant para therefrom is reproduced hereinbelow:-- Similar view was reiterated in another judgment of Honourable Supreme Court in the case of Said Muhammad v. The State PLD 1990 SC 1766. It is well-settled principle of law that when a criminal Court is pursuaded by the accused to take a lenient view for inflicting punishment then at the same time he also remains under a legal obligation to first of all confess the guilt. But if the' accused contests the case on merits, raises number of objections on the prosecution case and then applies for the lenient view the Court is not bound to entertain such request as it has been held in the case of Muhammad Ishaq v. Ghulam Muhammad 1988 SCMR 1899.
38. Thus, we are of the considered opinion that non-examining the contents of 16 recovered bags under the circumstances discussed hereinabove has not proved fatal for the prosecution and no leniency in reducing the sentence can be shown to appellant.
39. Learned counsel for appellant then contended that in final report Exh.P.5/B appellant has been shown innocent by P.W. Zahir Ali Khan, Tehsildar/Investigating Officer as according to the result of his report the appellant is not involved in this business for the reasons mentioned in the challan. It would be appropriate to reproduce hereinbelow the reasons prevailed upon the Investigating Officer for exonerating the appellant from the commission of offence:-- According to him in view of above report the Special Judge could have not taken cognizance of the offence under section 190, Cr.P.C. Learned counsel for the State contended that the report of Investigating Officer will not be relevant at the final stage of the case, but once the trial has been concluded it has got no relevancy as held in 1995 SCMR 1333; secondly it would not be fair to say that appellant has wrongly been tried because the Investigating Officer had not shown his name in Column II of the challan; thirdly the reasons mentioned therein of exonerating him from the charge are supported by any evidence and even if it is presumed for the sake of arguments that the story putforth in the challan by the Investigating Officer is true than to prove the same appellant could have produced at least his wife; fourthly the story being relied upon from the contents of the final report/challan by the appellant's counsel was not put to the witnesses of the prosecution including Mir Zahir Khan, Tehsildar/Investigating Officer during his cross-examination as during trial a different story on rivalry in between the appellant and Abdul Sattar, Dafedar was introduced that too at a belated stage, therefore, according to him despite of the fact that appellant has been shown innocent by the Investigating Officer the Court is still competent to take the cognizance of offence if material is available on record as it has been held in 1969 SCMR 271, 1984 SCMR 129.
40. With reference to the arguments put up by both the sides and also keeping in view the relevant contents of the challan Exh.P.5/B we have gone through the case diary maintained by the Investigating Officer available in the original file contents whereof reveal that P.W. Mir Zahir Khan, Teshildar/Investigating Officer had never visited Killi Rajay where the house of appellant is situated nor he examined any witness from the vicinity including the wife of convict, therefore, conclusion drawn by him in favour of appellant is based on surmises just to favour the accused for extraneous reasons.
41. As far as challan/final report submitted by Investigating Agency indicating that accused is innocent, is concerned it cannot be accepted because the guilt or innocence of accused can only be established after recording the evidence by the Court seized with the matter. In forming this opinion we are fortified with the judgment reported in the case of Nasir Abbas v. The State 1995 SCMR 1333. Besides it, the trial Court is not precluded from taking cognizance of the case even if the Investigating Agency has recommended in its final report under section 173, Cr.P.C. that accused is innocent as it has been held in the case of Noor Muhammad and others v. Muhammad Nawaz and another 1969 SCMR 271 and in the case of Muhammad Abbas and another v. The State 1984 SCMR
129. Yet there could be another case in which the Investigating Officer had shown the name of accused in column II of the report under section 173 but the Court seized with the matter on having taken cognizance of the offence if prima facie comes to the conclusions that sufficient material is available against the accused then process for summoning him can be issued as it has been held in the case of Waqar-ul-Haq alias Nithoo v. The State 1988 SCMR 1428, Sana Khan v. The State 1990 PCr.LJ 1190, Naubat Khan v. The State 1991 MLD 186, Riasat Ali v. The State PLD 1993 Lah. 105, Waqar Ilyas and another v. The State through Federal Investigating Agency PLD 1993 Quetta 49. It may be seen that appellant had abandoned the plea he got incorporated in challan Exh.P.5/B reproduced hereinabove as during trial he did not produce any witness to substantiate the portion of said plea.
42. Inasmuch as he failed to produce his wife who could have proved to be the best witness in his favour to establish that accused had no knowledge about contents of these articles as they were thrown in his house during the night time.
43. Moreover, P.W. Mir Zahir Khan, Tehsildar had also not stated a single word in his Court statement to support the contents of the report nor he deposed that from whom he received information that appellant is not involved in this case etc., therefore, convict indeed cannot take benefit of the recommendations made by the Investigating Officer concerning his innocence , in challan Exh.P.5/B.
44. Learned counsel for appellant also contended that P.W. Major Rehmat Ali was not authorised to conduct the raid under subsection (i) of section 20 of the Control of Narcotics Substance Act, 1997 nor after conducting raid without warrants he wrote reasons. Moreover, he had no territorial jurisdiction to conduct the raid.
45. Learned counsel for the State to controvert the stand of appellant's counsel referred to the notification, dated 7-8-1997 issued by the Federal Government authorizing the members not below the rank of Sub-Inspector, or equivalent of Anti-Narcotics Force, Provincial Excise and Police Department, Inspector are equivalent of the Customs Department and Subedar of the Frontier Corps in the Province of Balochistan and N.-W.F.P. to exercise the powers and perform the functions under this section and sections 22/23/37(2) and 38 of the said Act and also stated that explanation has also been offered that Killi Rajay falls within his territorial jurisdiction and according to him non-recording the reasons after trial is not irregularity as has been held in PLD 1990 SC 1088.
46. We have attended to the arguments putforth by both the learned counsel for parties carefully. To examine the authority of P.W. Major Rehmat to conduct raid on the house of appellant for recovery of narcotics drugs/controlled substances the notification, dated 7-8-1997 is reproduced herein below:-- "S.R.O.597(I)/97, dated 7-7-1997--- In exercise of the powers conferred by subsection (1) of section 21 of Control of Narcotic Substances Act, 1997 (XXV of 1997) the Federal Government is pleased to authorise 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 to exercise the powers and perform the functions under aforesaid section and sections 22, 23, 37(2) and 38 of the said Act within the areas of their respective jurisdiction."
47. A perusal of above notification indicates that P. W. Major Rehmat Ali Shah being above the rank of Subedar was competent under section 21(1) of the Act of 1997 to raid the house of appellant. It is also to be noted that section 21 of the Act of 1991 empowers any Officer of Frontier Corps above the rank of Subedar to conduct raid on the basis of information given to him by any person that any narcotics, drugs, psychotropic or controlled substances in respect of which offence punishable under the Act has been committed is kept or concealed in any building, place premises or conveyance. The warrant for arrest are such cannot be obtained against such person without affording him an opportunity for concealment of evidence of facility of escape, such Officer may enter into any such building, place, premises or conveyance, break open any door and remove any other obstacle to such entry, in case of resistance seize such narcotics, drugs, psychotropic substances and controlled substances and other materials used in the manufacture thereof and in other article which he has reason to believe to be liable to confiscation under this Act, any document and other article which he has reason to believe may furnish the evidence of the commission of offence punishable under this Act and detained, searched and if he thinks proper arrest any person whom he has reason to believe to have committed an offence punishable under this Act. Subsection (2) to section 21, however, casts a duty upon such Officer that before or immediately after taking any action under subsection (i) he would record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior Officer.
48. Although in the instant 'case no such report was immediately sent by P.W.1 to his superior Officer as per available report, but in substance this; provision also stands complied with because immediately he wrote a report to Tehsildar for registration of case vide EXh.P.1/A. It may be noted that if the law has identified the consequences of. doing a thing in a particular manner then of course its compliance is mandatory, but if no consequences flow from no adhering to do a thing like writing reports immediately under section 21 subsection (2), it would not be fatal for the prosecution case unless it is shown that the Seizing Agency had involved the accused with mala fide intention or on account of enmity because P.W.1 being Major in Frontier Corps was competent to raid the house of appellant which was falling within his territorial jurisdiction, therefore, in our opinion non-recording of the reasons in the circumstances of that case are not fatal to the prosecution case.
49. Mr. M.A. Chishti was also of the opinion that recovery memo of they recovered articles was prepared in Noukundi instead of in Killi Rajay, therefore, it is fatal for the prosecution case.
50. Suffice to observe that as far as the recovery itself is concerned it has not been disputed because the case of defence is that opium was found in 16 bags but he is not responsible for keeping the same as at that time he was present in the house of Agha Muhammad. Similarly, learned counsel contended that recovery was effected on 13-10-1997; whereas recovered articles were sent for examination on 28-10-1997. This question is also not fatal because the appellant himself has not disputed the Chemical Analyser's Report. A single question was not put to him that whatever was received by him, it was not the opium.
51. Learned counsel further contended that so far EXh.P.1/B is concerned it was sent to Tehsildar Noukundi in which complete information of the recovery of narcotics drugs, controlled substances was mentioned, but in the F.I.R. instead of reproducing its contents in extenso the Investigating Officer had written only the substance of the report. The object of lodging F.I.R. under section 154, Cr.P.C. is to set into motion the machinery of law. There could be a case where even on oral information the investigation of the case can commence. However, for such technicality no benefit can be extended to the accused because the Agencies of the Levies had no accurate experience for registration of the cases like it is done so by the police, therefore, no benefit of such defect can be extended to the accused.
52. Mr. M.A. Chishti, learned counsel also contended that despite of repeated demands by P.W. Mir Zahir Khan to Frontier Corps Authorities for handing over recovered articles to him, they did not do so and after considerable time had sent a sample taking it out from one bag to the Chemical Analyser.
53. Mr. Tariq Mehmood, learned counsel contended that contents of challan sufficiently indicate that the conduct of Investigating Officer was not above board, therefore, if the recovered articles had been given to him by Frontier Corps Authorities it is not known that in what manner tie had dealt with them.
54. In our opinion this objection of non-handing over the recovered article: to P.W. Mir Zahir Khan is not material because for such minor technicality trial would not vitiate.
55. On having gone through the entire evidence available on record as well as for the discussion made hereinabove we are of the opinion that in the cases where offence of smuggling or relating to narcotics are involved the prosecution case should not be allowed to fail for any technical reason and the Court in order to do substantial justice and in the largest interest of nation and country must overlook to the technicalities as it has also been held by Honourable Supreme Court in the case of Munawar Hussain alias Bobi and 2 others v. The State 1993 SCMR 785.
56. Thus, for the above reasons we see no merit in the appeal as such it is dismissed and the conviction/sentence recorded by the trial Court against I appellant vide judgment, dated 28-2-1998 is maintained.