FAZAL-UR-REHMAN, J.-This appeal has been preferred against the judgment dated 18-4-2000 passed by Additional- Sessions Judge-IV/ Special Judge, Quetta, by which he convicted the appellant for the offence under section 9(c), Control of Narcotic Substances Act, 1997 (hereinafter called as Act) and sentenced him to suffer imprisonment for life and to pay fine of Rs,50,000 in default of payment of fine to further undergo Si, for one year. The benefit of section 382-B, Cr.P.C.
Was also extended to the appellant.
2. - Briefly stated that facts of the case are that on 7-7-1999 the police raiding party consisting of P.
W.1 Muhammad Tariq, S.-I./S. H 0 , Police Station Civil Lines, Quetta and other police personnel under the supervision of DSP/SDPO City and in presence of Magistrate raided the house of appellant at about 3-05 p.m. Located in Kharot Abad in connection with Crime No,166 of 1999 under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 Police Station Civil Lines, Quetta. The appellant Dost Muhammad was stated to be present in his house. It is stated that as a result of search one bag brown in colour was found in a store like room of the house. Upon checking the bag Charas weighing 25 kgs.Was recovered from it. One Kg. Was separated as sample for the purpose of analysis. Parcels were prepared, the seized Charas was taken into possession vide recovery memo. Exh.P/2-A. The seizing officer then wrote Marasala Exh.P/1-A for registration of a case which was incorporated in the F.I.R. Being Crime No,97 of 1999 Police Station Brewery Road, Quetta under section 9(c), Control of Narcotic Substances Act, 1997. The investigation of the case was entrusted to P.W.3 Iftikhar Ahmed, A.S.-I. After usual investigation the appellant was sent up to face his trial.
3. On 10-8-1999 charge under section 9(c), Control of Narcotic Substances Act, 1997 was framed against the appellant Dost Muhammad by the trial Court, to which he pleaded not guilty and claimed trial.
4. In support of its case the prosecution examined P.W.1 Muhammad Tariq complainant/Seizing Officer, P.W.2 Muhammad Tufail A.S.-I. Recovery witness and P.W.3 Iftikhar Ahmed, Investigating Officer.
5. In his statement recorded under section 342, Cr.P.C. The appellant disputed the case of the prosecution and pleaded his innocence. The raid was laid down on 7-7-1999 at 3-05 p.m. By the raiding party under the supervision of AC/SDM, City and Illaqa Magistrate Mazhar Mehmood upon his house located in Kharot Abad has not been denied. He however, added that the house is not only owned by 2 other families are also residing in the same. He however, denied the search of the house and recovery of Charas. When asked as to why the prosecution witnesses deposed against him to which he replied to the trial Court that they deposed falsely. According to him he has got no concern with the Charas and pleaded his innocence. He also made his statement on oath as per provisions contained under section 340(2), Cr.P.C. According to him he was an informer and had informed D.S.P. Shahab Azeem Lehri on 7-7-1999 at about 10/11 a.m. Regarding availability of the Charas in the house of one Haji Muhammad Hanif located in Kharot Abad. He stated that D.S.P.
Shahab Azeem Lehri sent one Hawaldar with him regarding transaction with the concerned person.
He stated that the Charas was brought to his house by one Khudaided, who alongwith Haji Hanif was dealing in Charas business. The appellant stated that the raid was laid-down on his house at 3-00 p.m. Wherefrom he, Khudaidad and Haji Hanif were arrested and taken to Civil Lines Police Station. He added that after a few minutes Khudaidad and Haji Hanif were let off and he was falsely implicated with the commission of this offence. Hisplea is that he was an informer. In cross- examination he admitted that his house was raided by the police in presence of Magistrate on 7-7- 1999 at 3-05 p.m. And Charas, which was contained in a bag lying in a store like room of his house was recovered. He alleged that weighment was carried out and the Charas was found to be 28 kgs.
He also admitted that at the spot 2 other persons were also present about whom he had disclosed io be his guests. He however, voluntarily added that on account of tribal enmity he could not level allegation against them. He admitted that the recovery of Charas was effected from his house but voluntarily added that the same did not belong to him. He also produced Shahab Azeem Lehri, D.S.P./SDPO, Police Station Saddar, whose statement is to the extent that the appellant met him in the Police Station one day prior to his arrest in connection with recovery of Charas. He stated that he had been waiting for the appellant and in the evening he came to know that he has been arrested alongwith Charas. This witness however, stated that he was not with the raiding party at the time of raid and arrest of the appellant. In cross-examination this witness stated that he does not remember as to whether he sent along with the appellant any employee as bogus/fake purchaser or otherwise? He also stated that he had disclosed to other DSPs who were in the raiding party about the appellant who had visited him and to act as informer but himself has been arrested alongwith Charas. He denied the suggestion that the appellant had not visited him one day prior to his arrest. After hearing the counsel for the parties and assessment of the evidence the learned trial Court came to the conclusion that the prosecution has established recovery from the appellant and accordingly convicted the appellant in the manner hereinabove mentioned.
According to the trial Court the police raided the house of the appellant Dost Muhammad on 7-7- 1999 and effected the recovery of 25 kgs. Of Charas from the possession of the appellant in presence of witnesses including the Magistrate and a case under section 9(c) Control of Narcotic Substances Act, 1997 has been made out against the appellant. The conclusion drawn by the trial Judge while convicting the appellant is in the following words:-- "I have gone through the record in the light of arguments advanced by both the learned counsel.
P.W.1, Muhammad Tariq, S.-I.Was the complainant in this case. He stated that in connection with a Harrabah case registered vide No,166 of 1999 he under the superintendence of DSPs, SDM, Illaqa Magistrate with other police officials had conducted raid in Kharot Abad. House of accused person Dost Muhammad was also raided in presence of Magistrates and Senior Police Officers and from a.
Store-like room of his house 25 kgs. Of Charas was recovered in presence of the witnesses. Sealed parcels of the recovered Charas and recovery memo.Were prepared in presence of the witnesses and he sent Marasala for registration of the case. The accused person present in the Court was correctly identified by the witness. P.W.2, Muhammad Tufail A.S.-I is the witness to the recovery memo. In his statement-he had testified the statement of P.W.1 and stated that house of accused person Dost Muhammad was raided in presence of Magistrate, Senior Police Officers, S.H.O. Tariq and other police officials. 25 kgs.Of Charas was recovered from the store-like room of the accused person in presence of the witnesses. Two sealed parcels, one for one kg. And the second parcel of 24 kgs. Were prepared and the witnesses signed the same. Recovery memo.Was prepared and the witness correctly identified his signature on the same. The sealed parcels produced before the Court being articles from P/I to P/VII were correctly identified being the same. P.W.3, Iftikhar Ahmed A.S.I. Is the Investigating Officer. He recorded the statements of the witnesses of the recovery memo. Interrogated the accused person and had obtained the analysis report Exh.P.W.3-A. The statements of the witnesses are fully corroborated. The accused person has himself admitted that police officers in presence of Magistrate raided his house and from a store-like room of his house a bag of Charas was recovered. The accused person has not denied the recovery of Charas from his house. He has simply come with the plea that this Charas lying in his house was the property of someone else and he wanted to get it recovered by police. I am in agreement with the request of A.D.A. That the accused person wanted to involve someone else by planting this Charas against him but the Nature has given the punishment of the misdeeds of the accused person and he was not successful in his evil designs."
' It is in these circumstances that the present appeal has been preferred under section 48 of the said Act.
6. We have heard Mr. Inayat Ullah Khan learned counsel for the appellant and Mr. Ghulam Mustafa Mengal, Assistant Advocate-General for the State.
7. The main contentions put forth on behalf of appellant are that there is non-compliance of the provisions of section 103, Cr.P.C., the trial Court has misappreciated and misapplied the evidence produced by the prosecution and ignored the evidence produced by the appellant, the point No,2 formulated by the trial Court has not been properly resolved, the plea of the appellant has not been taken into consideration, which was supported by the statement of D.W.1, neither the recovered material (Charas) was sent to the Chemical Expert in accordance with the provisions of Control of Narcotic Substances Act, 1997, nor the chemical expert was authorised to submit report and material witness Magistrate and chemical expert have not been produced by the prosecution.
Learned counsel for the appellant in support of his contentions relied upon authority reported in PLD 1997 SC 408. On the other hand learned Assistant Advocate-General representing the State has supported the impugned judgment.
8. After having given our anxious consideration to the arguments advanced by the learned counsel for the parties and perusing the record, we are of the view that the recovery is not doubtful and the same has rightly been relied upon by the trial Court. The provision of section 103, Cr.P.C. Has no application to the Narcotic cases as per provisions' contained under section 25 of the Control of Narcotic Substances Act, 1997. Even otherwise in the instant case the recovery of Charas from possession of the appellant has not been denied by him in his statement recorded under section 340(2), Cr.P.C. Police Officials are as good witnesses as any person from the public provided no animosity is alleged and proved against them. Under the circumstances of the present case the possibility of planting a huge quantity of Charas inside the house by the police was not possible, the recovery of which has even not been denied by the appellant, therefore, the non-production of disinterested witnesses in such recovery would not adversely effect recovery itself. The Police Officials who having no against the accused were competent witnesses and their evidence cannot be discarded only for the reasons that they belong to Police Department. They have supported the recovery, which has even otherwise not been denied and there is nothing on record to show that they are deposing against the accused maliciously or due to animus. Regarding non-production of Magistrate and chemical expert the prosecution cannot be compelled for the same, nor it was incumbent upon the prosecution to produce all the witnesses who were in the raiding party. On the other hand there is no substance in the plea of the appellant who has been changing his version. In his statement recorded under section 342, Cr.P.C. He has totally denied the search and recovery.
The defence has been suggesting to prosecution witnesses that the recovery was effected from one Abdul Ghani, while in his statement he stated that the Charas was brought to his house by Khudaidad. The changing version and the explanation given by him is not worthy of reliance, which has rightly been rejected by the trial Court. The chemical-examination report Exh.P/3-A clearly indicates that the sealed parcels containing one kg. Suspected material was received. After chemical analysis it was found Charas (Cannabinoids). The name of Syed Abdullah, Chemical Expert has been indicated who has been notified by the Government of Balochistan for examination and analysis as per provision contained under section 510, Cr.P.C. Vide Notification No,SO(H)/1-145/99/1448-80, dated 7-7-1999. There was also no need to send the entire recovered material to the chemical expert for chemical examination, as according to the provisions of the said Act there is mention of sample. The witnesses have supported the prosecution version and no contradictions regarding recovery have been pointed out which can make the recovery doubtful.
The authority relied upon by the learned counsel for the appellant is not attracted in respect of Narcotic cases in view of provisions ofsaid Act and to the circumstances and facts of the present case. The changing defence version cannot be relied upon. The appellant has failed to discharge the burden as per provisions contained under section 29 of the said Act. Reference to the principle laid down in the authority reported in PLD 1990 SC 1176 can also be made.
9. The upshot of the above discussion is that there is no merit in this Dappeal, the same is accordingly dismissed.